Tag Archives: collective management organisations

Bad Maths in the European Copyright Reform, or How 9A Doesn’t Fit into 13

Meme - Solution, you keep using that word. I do not think it means what you think it means

While IFLA has focused most of its efforts throughout the European copyright reform process on those provisions that are most relevant to libraries, it is clear that for many, Article 13 is where it’s at.

This makes sense. Article 13 is a big deal, threatening to overturn one of the key pillars of the development of the internet – the idea that intermediaries (platforms, forums, services such as Dropbox), should not be held liable for content uploaded by their users.

By changing this, and making intermediaries liable, the Directive risks placing huge pressure on such platforms – which have taken on a massive role in the way we communicate and express ourselves – to filter content even before it is uploaded.

In effect, users would be treated as guilty until proven innocent. And the tools used to check innocence are flawed, given their inability to spot legitimate uses of works, and the fact that there will be little penalty for platforms from blocking free speech.

Aware of how controversial this is, supporters of Article 13 have tried to argue that there is an alternative. Platforms could sign blanket licences that could cover all works that could potentially be uploaded. They point out that the new Article 9A, which offers legal clarity to Extended Collective Licensing (ECL) schemes, allows for this.

To offer a short definition, ECL schemes are those where a collective management organisation (CMO) – which usually manages licensing for its members – can also sell licences for non-members, and should then try to redistribute royalties to these non-members.

The argument can seem attractive, and would doubtless benefit the biggest platforms (the only ones who can pay for such blanket licences) and the collective management organisations that run such schemes.

However, two pieces of research produced by IFLA last year underline the fundamental problems with the assumption that Article 9A is what will make Article 13 workable.

 

Patchy at Best – CMO Coverage in Europe

A first looks at the coverage of collective management organisations – i.e. in how many countries, and how many sectors, do CMOs exist. In effect, to be able to offer a blanket licence for works in a particular sector, there needs to be a CMO in the first place. But this is far from being the case everywhere.

As a survey across EU Member States and beyond underlined, coverage is patchy at best, both in terms of countries and sectors. Barely 60% of countries covered have CMOs in sectors such as photography and broadcasting rights, and only half have them for film.

The consequence risks being that there is an effective block on all content from countries where CMOs don’t exist and so cannot offer blanket licences. There is then a chance, in effect, that people in these countries trying to express themselves – through photos, book reviews, film reviews, critiques or parodies – will simply be unable to do so online.

Clearly, in time, it is possible that new CMOs will emerge to fill the gap. But this is a long way off, and it takes time for a new CMO to gain members and trust.

 

A High Bar for Successful ECL

A second challenge is in getting the conditions right for extended collective licensing. As an IFLA report drawing on experience from around the world shows, this is not easy.

As the contributors underline, for ECL to be seen as acceptable, it is important that they actually have enough members to be representative, and that these members give them the relevant mandates (across all sectors, less than 20% of countries have CMOs that allow for mass-uploading of works to the internet).

The CMO also needs to offer the relevant rights (not always the case, as the example of Sweden shows), and be well-governed and trusted. Sadly, anecdotal evidence suggests that in a number of countries, the reputation of the CMO can make libraries and others unwilling to pay. There also needs to be a clear and simple possibility to opt out.

More fundamentally still, there are many types of work which are not appropriate for licensing in this way, notably works that were never intended to be sold (such as archival materials), or those which are available under a Creative Commons licence.

At a recent discussion at the London Book Fair, it was not denied that some blanket licensing schemes may indeed involve claiming remuneration for the use of such licences.

 

The argument that Article 9A offers a solution to the problem created by Article 13 is optimistic at best. In some countries, with a comprehensive CMO infrastructure and a tradition of collective licensing, it may work, although will still leave huge power in the hands of major platforms and CMOs. But this is far from true everywhere.

Indeed, the fact that such arguments are being made, with Article 9A providing a patch for Article 13, simply underlines how much of a mistake Article 13 is in the first place. Europe would do better to lose it.

 

Read more about IFLA’s work on the EU Copyright Reform.

Copyright discussions at the LIBER Bookfair: public lending, unwaivable right to remuneration and much more

Copyright and more

IFLA recently took part in a session during the LIBER bookfair held in Barcelona from 3-5 October. LIBER, organised by the Spanish Association of Publishers’ Guilds, is a biannual event that alternates between Madrid and Barcelona.

The panel discussion was organised by FESABID, the Spanish Federation of Societies of Archivists, Librarians, Documentalists and Museologists, and focused on libraries and intellectual property and imminent challenges. A crowd of librarians, but also publishers and decisionmakers, attended and participated in the session with interesting comments regarding the “struggle” that libraries go through in seeking to give access to knowledge under outdated copyright laws.

Discussions during the panel had a strong focus on two aspects: the European copyright reform and public lending.

The European copyright reform

The first one promises to update certain exceptions and limitations to copyright that should make the above-mentioned “struggle” for libraries softer. Although not all exceptions might become mandatory (see the Council and the Parliament’s new article on text and data mining, or the second part of article 4 on illustration for teaching in the Commission’s proposal), which is to the detriment of harmonization within the Union, they all seem like a step forwards in adapting copyright to the digital age.

Public lending rights

Meanwhile, public lending in Spain has a tumultuous history and is far from having reached a status where stakeholders are satisfied. Collecting societies still claim that the current system is so inefficient that it ends up creating more cost than benefit. Moreover, after the preliminary ruling by the CJEU in case C‑174/15 regarding e-lending, there was also some expectation on whether the European copyright reform directive would bring more legal clarity to the topic.

Currently, digital lending in Spain works under the eBiblio platform, accessible to all users with a Spanish public library card. Contrary to public lending of physical books, libraries do not buy and lend the works, but they are accessed through this government-established platform.

Collective management in Spain

This LIBER edition was held at an interesting moment for Spain, as the Government has recently amended its copyright law to transpose the collective management Directive and the Marrakesh treaty Directive.

Collective management organisations in Spain are given an important role under Spanish law. They are for instance in charge of collecting and distributing money for remunerated limitations to copyright such as the private copy limitation or public lending. Even though they have such a big responsibility, there are still claims regarding their lack of transparency and fraudulent activities on certain occasions.

The important role that collective management organisations (CMOs) play in Spain is also underlined by a specific provision regarding unwaivable right to equitable remuneration for authors, subject to compulsory collective management. It has been adopted not only for the provision that transposed the SatCab directive, but also with regards to the remuneration in the limitation for illustration for teaching (art. 32.4 TRLPI), the limitation to make private copies (art. 25 TRLPI) and the neighbouring right for press publishers (art. 32.2 TRLPI).

Such provisions have received a lot of criticism (from the Creative Commons community, and from the library community) for their negative impact on the free circulation of knowledge. Even if the “intention” is to ensure remuneration to authors, it means that cannot decide to share their creation freely.

The hurry to transpose this directive meant that the Marrakesh Treaty Directive, which was transposed at the same time, was adopted by Spain faster than expected. It opens up possibilities of cross-border exchange within the European Union and from the Union to third party countries that have ratified the Treaty. Given the large number of Spanish-speakers around the world, it is certainly very welcome news.

An hour was obviously too short to get into all these topics, which shows how there are a lot of areas that still require the library community’s attention. Their experience and engagement will be key in shaping the future of copyright law in the country.