Today Creative Commons published a policy analysis covering several copyright-related issues presented in the draft intellectual property chapter of EU-Mercosur free trade agreement. We examine issues that would be detrimental to the public domain, creativity and sharing, and user rights in the digital age. [The policy paper is also available in Spanish and Portuguese.]
The European Union (EU) and the Latin American sub-regional bloc consisting of Argentina, Brazil, Paraguay, and Uruguay (Mercosur) have been negotiating a free trade agreement (FTA) since 2000. The EU-Mercosur FTA is expansive, addressing trade in industrial and agricultural goods, potential changes to rules governing small- and medium-sized businesses as well as government procurement, and intellectual property provisions such as copyrights and patents. The EU-Mercosur FTA negotiations continue during a time when several of the affected countries—including Argentina, Uruguay, Paraguay and even the EU—are involved in a review of their own copyright rules.
Only a few chapters of the draft EU-Mercosur FTA have been made available for public inspection. In November 2016 the EU released a draft of the chapter dealing with intellectual property, which is the most recent publicly available version. Civil society organisations and the public are typically excluded from participating in—or even observing—the negotiation meetings.
The EU-Mercosur FTA negotiations take place in an environment where an increasing level of copyright policy is being constructed through multilateral trade agreements. There are several current negotiations underway, including the Trans-Pacific Partnership (TPP) and the renegotiation of the North American Free Trade Agreement (NAFTA).
Each of these agreements include provisions regulating intellectual property, and the recent negotiation of these trade pacts shows that when copyright is put on the table, there’s a significant push to drastically increase enforcement measures for rights holders, lengthen copyright terms, and demand harsh infringement penalties. While the demands of rights holders are fully addressed, there’s little consideration given to the rights of the public. Limitations and exceptions to copyright are downplayed, or not present at all. In the text we see the invisible (and powerful) hand of the EU, which wishes to export the intellectual property provisions most beneficial to rightsholders (such as harmonized longer terms), but only wants to permit the absolute minimum when it comes to limitations and exceptions (such as only temporary copying).
Copyright term extension is unnecessary and unwarranted: The draft IP chapter proposes to extend the duration of copyright protection for those countries that do not already adhere to the life + 70 year term. Increasing the duration of copyright protection delays works from entering the public domain, where they may be used by anyone for any purpose. It also exacerbates related challenges, such as the orphan works problem.
User rights must be protected by expanding limitations and exceptions: Copyright protection and enforcement measures should always be tempered by recognizing and upholding the rights of users in the copyright ecosystem. But the IPR chapter doesn’t include similar safeguards introduced in the latest trade agreements and international copyright agreements that promote and protect balance in copyright agreements.
Mandatory remuneration frustrates the intentions of some Creative Commons licensors: The IPR chapter includes a provision that would require remuneration for performers and producers of musical works. The provision may be well-intended, but would interfere with the operation of some Creative Commons licenses by requiring a payment even when the intention of the author is to share her creative work with the world for free.
Technical protection measures must not limit the exercise of user rights: The IPR chapter includes prohibitions to circumventing technological protection measures to gain access to a work, as well as a provision that would prohibit the creation and sharing of technologies that could enable a user to circumvent technological protection measures. The problem is that it doesn’t take into account situations where users should be able to leverage a limitation or exception, but cannot due to prohibitions on circumventing a technological measure.
Precautionary injunctions against “imminent” infringements harms freedom of expression and the rule of law: The IPR chapter introduces the idea that an injunction could be levied against both potential infringers and intermediaries (including ISPs) for “imminent” copyright infringements that have not yet occurred.
Trade agreement negotiations must be transparent and involve the public: Trade agreement negotiations need to be transparent and participatory. They are not. The secrecy demonstrated in the negotiation of the TPP and other FTAs left civil society organizations like Creative Commons and the broader public at an extreme disadvantage, as only a privileged few stakeholders invited into the closed negotiation circle had their interests fully considered.
Read our extended policy paper here. The text is also available in Spanish and Portuguese.
The Free Software Foundation Europe and a broad group of organisations including Creative Commons are supporting the Public Money, Public Codecampaign. The initiative calls for the adoption of policies that require that software paid for by the public be made broadly available as Free and Open Source Software. Nearly 40 organisations and over 6200 individuals have already supported this action by signing the open letter. You can sign it too.
We know that publicly funded educational materials and scientific research should be made available under open licenses for maximum access and reuse by everyone.
The same goes for the digital infrastructure of publicly-funded software. Unfortunately, governments around the world tend to procure mostly proprietary software, and the restrictive licenses that come with it limits our rights as citizens to use (and improve) these tools funded through the public purse and developed for the public good.
Make your voice heard today. The campaign organiser will deliver the signatures to European representatives who are debating software freedom in public administration.
Almost a year ago, we announced that our community’s real time communications were migrating from IRC to Slack. As we pass 1,000 active users, we want to take a moment to give gratitude to our community for making it happen.
We’ve grown consistently since then, but our next big influx of community came this week, when our Open Education Platform launched. #cc-openedu is now our most populous channel outside of #general and #announcements, with 167 participants collaborating daily in the channel. We expect an increasing number of people signing up in all our platforms with the launch of our exciting new Global Network Strategy.
Our community as a whole hosts 250 Weekly Active Users sending approximately 1,000 messages per day. However, certain days are definitely busier than others: after we sent out our invitation to our Global Summit attendees to join us on Slack, our engagement shot up to 1,700 messages in one day in April. The community is friendly and welcoming, and we try to say hello to every member who joins and posts!
35 Public Channels
35 public channels feels like a lot of channels, but the number of access points allows members to hop into (and out of) any of our global communities or programs with ease. The many channels allow us to open up our work to the world and facilitate communication between a variety of users on six continents. (We’re not yet in Antarctica – anyone want to start a chapter?)
In addition to our 1,000 members milestone, we’re nearing another important landmark: The CC Community has sent nearly 200,000 messages! We’re talking a lot between each other – more than 50% of our messages are sent via Direct Messages to develop our close-knit, relational culture of Community Builders.
To call out some of our favorite channels, #cc-openedu is acting as a catalyst and inspiration for other network-platform based communities, with more than 60 users regularly posting messages and a channel membership of 166. The #general and #announcements channels remain incredibly popular, with over 1,000 total members and 100 daily active users, as does, of course, #cc-animals, which provides all the cuteness from the commons. Want to learn more about how we work? #cc-culture-club has you covered! While most of our chatter is about the commons, we can also get silly in the #random channel.
We’ve also been excited to see the growth of users in global communities like #cc-europe, #cc-canada, and #cc-arabworld.
A vision for community growth
Our adoption of Slack has seriously grown our capacity as a network and as a community. We’ve been able to use the platform to chat, connect, and collaborate across disciplines. Through Slack, we’re privileging accessibility and community in order to reach our goals as a connected, growing network.
Our next steps include possible Slack chats, more fun, (like these Slack awards,) and frankly, who knows what else? Our community surprises us every day.
If you haven’t yet joined us, please do! We’d love to meet you.
In June we asked the European Parliament to redouble their efforts to make much-needed improvements to the EU copyright reform. We called on the Parliament to spearhead crucial changes that promote creativity and business opportunities, enable research and education, and protect user rights in the digital market.
Despite this strong ask, the direction of the copyright reform is getting worse, not better.
This week Creative Commons and major organisations from the library, research, education, and digital rights community sent a letterto the European Parliament’s Legal Affairs Committee calling on it to protect open access and open science in the context of the Commission’s draft Directive on Copyright in the Digital Single Market. Additional signatories are encouraged to join the letter.
Of particular concern are two parts of the draft directive: Article 11 (press publisher’s right) and Article 13 (platform content filtering). We believe that these provisions will create burdensome and harmful restrictions on access to scientific research and data, as well as on the fundamental rights of freedom of information, directly contradicting the EU’s own ambitions in the field of Open Access and Open Science.
The press publisher’s right already poses a significant threat to an informed and literate society. Links to news and the use of titles, headlines and fragments of information could now become subject to licensing. The extension of this controversial proposal to cover academic publications, as proposed by the Parliament’s Research Committee, significantly worsens an already bad situation. This type of arrangement is unequivocally harmful to access to scientific and scholarly information—most of which has already been paid for from by the public funds, and whose raison d’être is to be read as widely as possible in order to contribute to the scientific enterprise. It flies in the face of open access publishing, whose authors have chosen to share their research outputs under permissive licenses for the benefit of all. And it directly conflicts with other provisions in the EU’s copyright reform meant to improve research processes and outcomes, such as the mandatory copyright exception for text and data mining.
Article 13 threatens the accessibility of scientific articles, publications and research data made available through over 1250 repositories that European non-profit institutions and academic communities. These repositories, which are essential for Open Access and Science in Europe, are likely to face significant additional operational costs associated with implementing new filtering technology and the legal costs of managing the risks of intermediary liability.
Both Articles 11 and 13 should be removed from the proposal.
Our letter also touches on other important issues such as the exception for text and data mining (Article 3) and the exception for educational purposes (Article 4). We ask the Legal Affairs Committee to improvement these and other Articles so they to provide better support for teaching, learning, and new forms of research.
You can read the full letter below.
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EU copyright reform threatens Open Access and Open Science
Open letter to the members of the Legal Affairs Committee in the European Parliament
We represent a large group of European academic, library, education, research and digital rights communities and we are writing to express our alarm at the draft Directive on Copyright in the Digital Single Market, and in particular at the potential impact of Articles 11 and 13. We are concerned that these provisions will create burdensome and harmful restrictions on access to scientific research and data, as well as on the fundamental rights of freedom of information, directly contradicting the EU’s own ambitions in the field of Open Access and Open Science.
We therefore urge the Legal Affairs Committee to remove Articles 11 and 13 from the draft Directive. Furthermore, the Committee should ensure that Articles 3 to 9 support new forms of research and education and not work against them.
A U-turn on Open Science?
We believe that increased digital access, data analytics and open information flows will increase innovation in Europe. The European Commission’s Horizon 2020 programme similarly supports open access to scientific publications and research data as essential drivers of EU global competitiveness. The EU has set an example internationally with its extensive policy work, for example by including Open Access in one of its six European Research Area (ERA) priorities. Moreover in 2016 at the Competitiveness Council, all of Europe’s ministers of science, innovation, trade and industry committed to Open Access to scientific publications as the default option for publicly funded research results by 2020. Open Science is increasingly accepted by governments and industry as a means not only to accelerate innovation, but also to ensure faster access to information for citizens.
However, several proposed elements of Articles 11 and 13 will prevent the EU from realizing the significant potential of Open Access and Open Science to promote scientific discovery and progress, and may thereby reduce the impact of European research worldwide.
The Ancillary Right – Putting the brakes on knowledge-sharing and building walls around already open publications and data
Article 11 already poses a significant threat to an informed and literate society. Links to news and the use of titles, headlines and fragments of information could now become subject to licensing. Terms could make the last two decades of news less accessible to researchers and the public, leading to a distortion of the public’s knowledge and memory of past events. Art. 11 would furthermore place EU law in contravention with the Berne Convention, whose Art. 2(8) excludes news of the day and ‘mere items of press information’ and ‘press summaries’ from protection.
The extension of this controversial proposal to academic publications, as proposed by the ITRE Committee, significantly worsens an already bad situation. It would provide academic publishers additional legal tools to restrict access, going against the increasingly widely accepted practice of sharing research. This will limit the sharing of open access publications and data which currently are freely available for use and reuse in further scientific advances. If the proposed ancillary right is extended to academic publications, researchers, students and other users of scientific and scholarly journal articles could be forced to ask permission or pay fees to the publisher for including short quotations from a research paper in other scientific publications. This will seriously hamper the spread of knowledge. The proposed ancillary right further conflicts with the Berne Convention’s Article 10(1), which provides a mandatory exception for quotation, as well as posing risks to freedom of speech.
Prior experiments with the press publishers’ right have also failed from an economic standpoint. No impact assessment has been carried out, no evidence produced, and no consultation conducted around the ramifications of extending Art. 11 to academic publishers.
In addition, academic publishers usually acquire rights to the works they publish when signing contracts with their authors. Publishers already have all the rights they need, thus ancillary rights don’t make sense.
Filtering obligations – Undermining the foundations of Open Access
The provisions of Article 13 threaten the accessibility of scientific articles, publications and research data made available through over 1250 repositories that European non-profit institutions and academic communities. These repositories, which are essential for Open Access and Science in Europe, are likely to face significant additional operational costs associated with implementing new filtering technology and the legal costs of managing the risks of intermediary liability. The additional administrative burdens of policing this content would add to these costs. Such repositories, run on a not-for-profit basis, are not equipped to take on such responsibilities, and may face closure. This would be a significant blow, creating new risks for implementing funder, research council and other EU Open Access policies.
Text and Data Mining – The risks to scientific values
Regarding Article 3, we welcome amendments that expand the exception for text and data mining (TDM) to allow anyone, including SMEs and society in general, to mine works to which they have legal access, regardless of the purpose. Furthermore, Article 3 should direct Member States to set up a secure facility to ensure accessibility and verifiability of research made possible through TDM. Under no circumstances should data structured for mining purposes be deleted – this is fundamentally contrary to good scientific practice. Finally, the exception should be protected from being overridden by contract terms, and technological measures should be prohibited that interfere with the exercise of the exception. Both protections are essential for the exception to function.
Education, preservation and access – An enabling environment for Open Science
Regarding Article 4, we believe that a robust exception to copyright for education should support broad access to and fair reuse of copyrighted content of all types in a variety of education settings, locally and across borders. The scope of the exception should cover digital and non-digital uses, including ‘scientific research’ purposes, alongside educational ones, and prevent rightholders from overriding the exception through contractual provisions or technological protection measures. Finally, the exception should not depend on compulsory remuneration.
We also urge MEPs to take full account of the views of library and cultural heritage institutions regarding Articles 5-9 of the draft Directive, which aim at ensuring maximising the effective preservation of, and access to works for public interest, non-commercial purposes.
We therefore urge the Legal Affairs Committee to remove Articles 11 and 13 from the draft Directive. Furthermore, we ask for the improvement of Articles 3-9 in line with the suggestions put forward by library, educational, research and cultural heritage organisations throughout the parliamentary process to provide better support for teaching, learning, and new forms of research.
The signatories support a balanced copyright law that promotes open access to research articles, publications and data, thereby continuing to contribute to further strengthening Europe’s research outreach and innovative capacity for the benefit of Europe’s research industry, including SMEs and society.
Original signatories
CESAER – Conference of European Schools for Advanced Engineering Education and Research
COAR – Confederation of Open Access Repositories
Commons Network
Communia Association
Creative Commons
C4C – Copyright for Creativity (C4C) Coalition
EBLIDA – European Bureau of Library Information and Documentation Associations
EIFL – Electronic Information for Libraries
EUA – European University Association
Free Knowledge Advocacy Group EU
IFLA – International Federation of Library Associations and Institutions
LIBER – Association of European Research Libraries
RLUK – Research Libraries UK
Science Europe
SPARC Europe
In early 2017, the Creative Commons Global Network (CCGN) completed a consultation process of renewing and reorganizing itself to support a strong and growing global movement. The year-long process resulted in the CCGN Global Network Strategy. Part of the new strategy is to establish defined areas of focus, or “platforms,” which will drive CC’s global activities. Platforms are how we organize areas of work for the CC community, where individuals and institutions organize and coordinate themselves across the CC Global Network.
In the spirit of openness and to effectively strategize, these platforms are open to all interested parties working in the platform area and adjacent spaces. That’s why Creative Commons invites you to join the CC Global Network Open Education Platform!
WHY join?
Stay connected to global actions in open education resources, practice, and policy.
Identify, plan and coordinate multi-national open education, practices and policy projects to collaboratively solve education challenges with an amazing group of open education leaders from around the world.
Secure funding (from Creative Commons and other funding sources) for the open education projects we collectively select.
Contribute to global perspectives on open education to strengthen advocacy worldwide.
Connect your country / region to global open education initiatives.
Be on the forefront in implementing Creative Commons’ global network strategy.
Meet annually, in-person, at the Creative Commons Summit with members of the CC Open Education Platform to celebrate successes, share best practices, and plan for the next year.
Explore, practice, and share innovative methods for inclusive and open engagement with educators, learners and governments around the world..
WHO should join?
Open education advocates working in the areas of open educational resources, open educational practices, and/or open education policy.
WHAT are we working on right now?
Reaching the right people (you!) to build a strong open education platform.
Developing decision making and engagement structures.
Defining the goals and projects the CC Open Education Platform will pursue.
Joining the CC Open Education Platform is easy and free:
