In September the European Parliament voted to approve drastic changes to copyright law that would negatively affect creativity, freedom of expression, research, and sharing across the EU. Now the Parliament and Council (representing the Member State governments) are engaged in closed-door negotiations, and their task over the coming months is to come up with a reconciled version of the directive text, which will again be voted on in the European Parliament next year.

Article 11: The wrong solution to a real problem

A major provision that will be discussed is Article 11, the new “press publisher’s right” (also known as the link tax). Both the Parliament and Council have already approved versions of this unnecessary and counterproductive “publisher’s right,” which would require news aggregators that wish to index or incorporate links and snippets of journalistic content to first get a license or pay a fee to the publisher for their use online.

The Parliament’s version of Article 11 says Member States must adopt the new right so press publishers “may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers.”

Article 11 is ill-suited to address the challenges in supporting quality journalism, and it will further decrease competition and innovation in news delivery. Spain and Germany have already experimented with similar versions of this rule, and neither resulted in increased revenues for publishers. Instead, it likely decreased the visibility (and by extension, revenues) of published content—exactly the opposite of what was intended. Just last week a coalition of small- and medium-sized publishers sent a letter to the trilogue negotiators outlining how they will be harmed if Article 11 is adopted.

Collateral damage: those that want to share under CC

Not only is a link tax bad for business, it would undermine the intention of authors who wish to share without additional strings attached, such as creators who want to share works under open licenses. This could be especially harmful to Creative Commons licensors if it means that remuneration must be granted notwithstanding the terms of the CC license. This interpretation is not far-flung. As IGEL wrote last week,

“the Parliament’s proposal makes it clear that press publishers should receive financial compensation from search engine providers in particular when they display links to publishers’ websites. Member States, however, could now come up with the idea that this goal could be achieved most effectively if publishers could not waive their right to remuneration. Only the amount of the remuneration claim would then still be negotiable, but not its assertion.”

As we’ve said before, such a right “directly conflicts with publishers who wish to share freely and openly using Creative Commons licenses. Forcing publishers who use CC to accept additional unwaivable rights to receive payment violates the letter and spirit of Creative Commons licensing and denies publishers the freedom to conduct business and share content as they wish.”

When an author applies a Creative Commons licenses to their work, they grant to the public a worldwide, royalty-free license to use the work under certain terms. The license text specifically states, “To the extent possible, the Licensor waives any right to collect royalties from You for the exercise of the Licensed Rights, whether directly or through a collecting society under any voluntary or waivable statutory or compulsory licensing scheme.”

For example, the Spanish news site eldiario.es releases all of their content online for free under the Creative Commons Attribution-ShareAlike license. By doing so, they are granting to the public a worldwide, royalty-free license to use the work under certain terms. Other news publishers in Europe using CC licenses that could also find themselves swept up under this new provision include La Stampa, 20 Minutos, and openDemocracy. These outlets have made a conscious decision to share their works for free under Creative Commons licenses without having to jump through additional hoops of charging aggregators or search engines for displaying links and snippets to their stories. If Article 11 would be deemed an unwaivable right, would it prevent these news publishers from using CC altogether since the license would conflict with the legal requirement?   

We firmly believe the author’s right to choose to share, or to seek compensation for all or some uses of their works. At the same time, the EU copyright directive must find a solution that also honors those authors who choose to share with few or no restrictions.

What can be done?

Article 11 should be deleted. Publishers already benefit greatly from the copyrights they have in their content, and don’t need an additional exclusive right to protect or exploit those rights. It’s clear that an additional right for press publishers will not support quality journalism, increase the diversity of media content, or grow the digital single market. Instead, it will negatively affect access to information and the ability for publishers to share using the platforms, technologies, and terms beneficial to them.

For years academics and public interest advocates have advocated for an easier and more effective way to promote the aims of quality journalism and the ability of press publishers to sustain their efforts without a new press publishers right. This approach was presented in the Parliament by former JURI Rapporteur Comodini, and that would rely on a presumption that publishers are the rights holders, thus making it easier for these entities “to conclude licences and to seek application of the measures, procedures and remedies.” The Parliament’s own research even recommended such an approach. This framing, which draws from Directive 2004/48/EC on the enforcement of intellectual property rights, already provides a robust legal framework for the protection of content without the negative aspects of introducing a new right.

If including some version of Article 11 is unavoidable, the Council version should be prioritised, since it already includes some protections for works under open licenses, or in the public domain. For instance, the previous Council text includes the following provision: “When a work or other subject-matter is incorporated in a press publication on the basis of a non-exclusive licence, the rights […] may not be invoked to prohibit the use by other authorised users [or] works or other subject-matter whose protection has expired.” In addition, the Council text only permits a 1 year term of protection, as opposed to the 5 year term offered by the Parliament version.

So far, the direction of the EU copyright directive reflects a disturbing path toward increasing control of the web to benefit only powerful rights holders at the expense of the open internet, freedom of expression, and the rights of users and the public interest in the digital environment. In the current negotiations, the Parliament and Council should not double down and punish Creative Commons licensors and others who want to share broadly with the world. These authors and creators have made a deliberate choice to use CC legal tools so that others may benefit. Their contributions to the commons should be respected and protected.

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Authors:

Timothy Vollmer is Senior Public Policy Manager at Creative Commons. 

Dr. Till Kreutzer is a lawyer,  journalist, and Creative Commons Global Network Council Representative for CC Germany. He leads the Initiative Against An Ancillary Copyright For Press Publishers (“Initiative gegen ein Leistungsschutzrecht”, or IGEL).

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Flickr is one of the most important platforms to host and share CC licensed works on the web, and over 400 million of the photos there are CC licensed – representing over a quarter of all CC licensed works on the web. When Flickr was acquired by online photography service SmugMug last year, we were excited to see that a family-owned values-driven company had purchased it.

When I visited the SmugMug offices, I met a group of people with a deep passion for photography communities and a love for Flickr. They were also worried about its future after many years of neglect and a lack of a viable business model. They were committed to getting the service back on track — doing all the necessary back-end engineering, fixing things that users hated like Yahoo! login, and protecting and expanding the Commons.

For the first time in a long time, I was optimistic about Flickr and its future. I still am.

Today, Flickr announced that they will be limiting the number of photos in their free accounts to 1,000 images, and offering an extended Pro service for $49.99 a year. Users have 3 months to consider their options. Many users are concerned such a limit on free account capacity might cause millions of CC images to be deleted from the Commons. A lot of people have reached out to us directly and asked what we can do. I’m confident that together we can find solutions, if we assume goodwill and bring our collective creativity to the problem.

Creative Commons is working closely with Flickr and its parent company SmugMug to find ways to protect and preserve the Commons, and ultimately help it grow and thrive. We want to ensure that when users share their works that they are available online in perpetuity and that they have a great experience.

At the same time, I think it’s fair to say that the business models that have powered the web for so long are fundamentally broken. Storage and bandwidth for hundreds of millions (if not billions) of photos is very expensive. We’ve all benefited from Flickr’s services for so long, and I’m hopeful we will find a way forward together.

I’m glad that Flickr hasn’t turned to surveillance capitalism as the business model for its own sustainability plan – but that does mean they’ll have to explore other options. No one wants to see works from the Commons deleted, and we’ll be the first ones to step forward to help if that ever were to happen.

I have confidence in Don and Ben and the SmugMug and Flickr teams: they want to do right for the Commons, and they understand how deeply CC and the photo Commons is integrated into the goodwill that Flickr has retained over all these years. We welcome your ideas on how we can help Flickr support the Commons, and hope we’ll be able to share something with you soon.

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From July 16-September 23, Creative Commons hosted two Educator Certificate courses and two Librarian Certificate Courses. Participants from Bangladesh, Canada, China, Great Britain, Netherlands, Romania, Sweden, and the US engaged in rigorous readings, assignments, discussions and quizzes. See examples of the assignments that participants participants’ assignments they’ve publicly shared under CC licenses. With the course now complete, we are thrilled to announce 83 new graduates.

The CC Certificate provides an in-depth study of Creative Commons licenses and open practices, uniquely developing participants’ open licensing proficiency and understanding of the broader context for open advocacy. The training content targets copyright law, CC legal tools, as well as the values and good practices of working in the global, shared commons. The CC Certificate is currently offered as a 10-week online course to educators and academic librarians. In 2019, Creative Commons will expand offerings to include 1-week boot camps, a Certificate instructor training, scholarships, and initial translations of the Certificate into multiple languages.

Interested in taking the CC Certificate, yourself? Visit our Certificate website at the end of this month for updates! We will share new updates and open registration for 2019 courses by 31 October.

Also, stay tuned for an updated list of our Certificate graduates by the end of the year. CC kicked off five new Educator and Librarian courses with 125 participants from 14 countries on 1 October and we look forward to welcoming more Certificate graduates at the end of these courses.

We are inspired by our 83 recent graduates, and filled with gratitude for their amazing work. We congratulate them on successful completion of the Certificate, and look forward to their future open efforts!

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Six years ago we wrote a blog post titled WIPO’s Broadcasting Treaty: Still Harmful, Still Unnecessary. At the time, the proposed treaty – which would grant to broadcasters a separate, exclusive copyright-like right in the signals that they transmit, separate from any copyrights in the content of the transmissions – had already been on WIPO’s docket for several years. It’s still on the table today, and now some countries are calling for actions to finalise the agreement.

The broadcasting treaty is still harmful and still unnecessary.

The current text contains many of the same damaging provisions, such as long term of protection (possibly 50 years) and little to no support for limitations and exceptions to the right which could provide needed protections for activities such as news reporting, quotation, education, personal use, and archiving.  

But the dealbreaker for CC is the fact that the treaty would essentially invalidate the permissions that users of Creative Commons grant when they share their creativity under open licenses, and instead gift new and unwarranted rights to broadcasting organizations that have added little or no value to the underlying work being transmitted. This is because the rights provided to broadcasters in the treaty would apply separately from copyright, thus permitting them to restrict how the content is shared even if the creator of the video or audio content has already released it under a Creative Commons license, or if it’s already in the public domain.

This week CC CEO Ryan Merkley presented at a seminar in Geneva hosted by Knowledge Ecology International. The event examined the broadcast treaty in relation to access to culture.  

Below is an excerpt from Ryan’s talk. You can watch the entire event online (Ryan’s remarks begin at 2:05:50).

Journalists, documentary filmmakers, podcast creators and others are using CC licenses to share their works broadly, and some of this media are used by traditional broadcasters too. These creators who choose to share their works and enable some permissive uses expect their works to be broadly accessible to the public under the terms of the CC license they chose. And they should be applauded for sharing works under permissive terms so their audiences can view and use them.

All Creative Commons licensors permit their works to be used for at least non-commercial purposes. When an author applies a CC license to her work, she grants to the public a worldwide, royalty-free license to use the work under certain terms. And many authors simply want to share their creativity freely under open terms to benefit the public good. For example, educators and scholarly researchers create and share works primarily to advance education and to contribute to their field of study—not necessarily for financial remuneration.

CC has pushed back on other policy changes in the realm of IP that would downplay or break how the CC licenses work, or enclose works that should be in the public domain. I remain concerned that the current draft would have a number of negative impacts, because it grants rights that reach overtop of those of creators.

The broadcasters argue that their investment should give them this right. But this shouldn’t be the test. The same argument could be used to give Museums rights over the works on their walls (which of course they want, and which at least one museum in Germany has successfully argued for in their courts), Movie theatres a right over the light particles that pass from the projector to the screen, or Booksellers the right over the books they put on their shelves, or even the trucking company that moves the books from the warehouse to the bookstore. Promoting and delivering content should not convey rights over the content itself — whether we call it the signal or not.

One alarming element in the proposal gives rights over the broadcast signal of works that are in the public domain or openly licensed.

In no cases should the treaty give broadcasters post fixation rights in works that are in the public domain, or openly licensed. It violates the spirit and wording of Creative Commons licensing, and creators who wish to have their works travel freely without additional strings attached. Broadcasters don’t own the content, and have no rights to the content of public domain and Creative Commons licensed works.

Works in the public domain should be free of these copyright-like restrictions, as we’ve argued in other areas – such as the notion that digital reproductions of works in the public domain should also be in the public domain (and not give rise to new copyrights).

Supporters of the broadcast treaty have failed to make a compelling, evidence-based case for a separate right, to identify the specific causes and resolutions for harm, and to show likely positive impacts of the treaty. However, there is significant risk that granting this new broadcasting right will limit access to information and culture.

Broadcasters already have legal remedies available to them to combat signal theft, and copyright law covers infringement in the underlying content.

WIPO should halt the proceedings of the broadcast treaty. With each passing year, it looks more and more like a solution in search of a problem.

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A couple of weeks ago, I stepped into the role of Director of Product and Research. We are now in the middle of our second sprint for CC search (see results from the last one here) and seeking a new Director of Engineering. Paola Villarreal, our current Director of Product Engineering, will be leaving us in December for a new opportunity. While we are sad to see her leave, we are excited to shape and launch a new phase for Creative Commons that aligns our vision and strategy for product with real world user needs.

The new Director of Engineering will work closely with me, the Director of Product and Research, to lead the technical design, development and implementation of CC’s products and services. Right now that primarily means CC search and its supporting parts (the CC catalog and API), and in the future that may mean new product ideas resulting from user research and pending alignment with our new product vision and strategy (read more about current usability prototypes and research here).

The Director of Engineering will also work closely with our newly formed Tools and Product team, which consists of the following fantastic people:

Sophine Clachar (Data Engineer building the CC catalog that fuels CC search), Alden Page (Software Engineer that is working on all things backend to CC search, in particular making the CC catalog accessible via an API), Steven Bellamy (Front-end Engineer that is making CC search elegant and usable for real people), Diane Peters (General Counsel that makes sure CC is legally covered across all its tools and product offerings), Sarah Pearson (Senior Counsel that also serves as product counsel for CC search), and myself. A Core Systems Manager will also be joining our team next week.

You will be stepping into a role with a lot of moving parts, but with lots of support and excitement from your peers. We look forward to your application! 

Job Opportunity: Director of Engineering

 

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