Smoke signals from the European Parliament

Copyright Advocacy Update: The European Commission's proposal for new copyright rules continues its long path through the European Parliament.

As we are slowly edging towards spring the first parliamentary committees dealing with the proposal have published draft opinions that give us a first picture of how MEPs look at the Commission's proposal. In total there are currently four Committees of the European Parliament dealing with the Commission's copyright proposal: The committee for Culture and Education (CULT), the Committee for Internal Market and Consumer Protection (IMCO), the Committee for Industry, Research and Energy(ITRE ) and the Legal Affairs Committee (JURI) which is the overall responsible committee.

A first look at what the European Parliament wants

In the past 2 weeks the rapporteurs (MEPs in charge of the file) for both the CULT and IMCO committees have published their draft opinions. Draft opinions represent the first step in formulating the opinion of a committee and largely reflect the political preferences of the rapporteurs. As such these documents will likely undergo significant change before they become final documents representing the views of the Committees as a whole. The final opinions of the CULT, IMCO and ITRE committees will then be taken into account when the JURI committee adopts its own report, which normally becomes the position of the European Parliament.
So while we are looking at the very first indicators of what to expect from the European Parliament, these draft opinions published by MEP Marc Joulaud (CULT) and Catherine Stihler (IMCO) are promising. Both opinions reflect some of the points that Europeana and Library organisations have been making over the past months in our discussions with a large number of Members of Parliament including the two rapporteurs. In the remainder of this post we will take a look at what the rapporteurs have proposed with regards to the issues that are included in Europeana's copyright advocacy mandate.

Digitization / Preservation

The Commission's proposal included a mandatory exception that would allow Cultural Heritage Institutions to make copies of works in their collections for preservation purposes. We have argued that this is much too limited and that the exception should apply to reproductions for all purposes related to the institutions' public interest mission. In his draft CULT opinion MEP Joulaud proposes language that would make it clear that preservation includes digitization. In the draft IMCO opinion MEP Stihler goes even further and suggests to make the new exception apply to all reproductions as long as they are related to the public interest mission of the institution making the exception. Having such an exception would greatly facilitate many internal processes of cultural heritage institutions and provide legal clarity for digitisation efforts.

Access to Out of Commerce works

We have repeatedly pointed out that the Commission's approach for enabling better access to Out of Commerce works held in the collections of cultural heritage institutions falls short of its objective. It is overly complicated and will only work for sectors and types of works where collective management is practices exist. In this light it is very encouraging to see both the CULT and the IMCO opinion to propose measures that would substantially improve the Commission's proposal.

For CULT, MEP Joulaud proposes to introduce a new exception that would allow cultural heritage institutions to make Never in Commerce works in their collections available online. With regards to out of commerce works he maintains the Commission's proposal but introduces a provision that encourages member states to work towards establishing collective management organisations that can issue licenses for the use of out of commerce works.

For IMCO, MEP Stihler has followed the approach that Europeana and the library organisations have been advocating for her amendments, if adopted, would add an exception allowing cultural heritage institutions to make available Out of Commerce works in their collections unless the collective licensing solutions proposed by the Commissions are actually available. As such the amendments proposed by MEP Stihler would provide a comprehensive solution to the problems that copyright poses to the large scale digitisation of collections.

Both rapporteurs clearly understand that the Commission's proposal falls short of its own objective and it is encouraging to see that our concerns have been taken into account by both of them.

On-site access to collections

One of the most glaring telling shortcomings of the existing EU copyright framework is that it contains an exception that allows cultural heritage institutions to make works in their collections available to their visitors but that this exception only applies if the visitors use so called "dedicated terminals". In an age where almost every visitor of a museum or library carries an iPad, laptop or smartphone this is clearly outdated.

Cultural heritage institutions have been calling for an update of this outdated rule for a long time. While the Commission ignored this issue in its proposal it is addressed in both the CULT and IMCO draft opinions: MEP Joulaud proposes to update the existing exception by rewording it so that access can can be provided through "secure electronic networks" instead of via "dedicated terminals". MEP Stihler suggests a new exception that would allow cultural heritage institutions to make available works contained in their collections to anyone regardless of the technology used as long as the recipient is on the premises of the institution.
Both interventions would fix the problem and are very welcome additions to the Commission's proposal

Text and Data Mining

The Commission's proposal to add a new exception allowing scientific research institutions to undertake Text and data mining for scientific purposes has turned out to be one of the more controversial bits of the proposal. Europeana and the library organisations have been arguing that limiting the beneficiaries of the exception to scientific research organisations and the purpose to scientific research is much too narrow and will substantially limit the usefulness of TDM in Europe. We have argued that the exception should cover all types of users and any purpose.

When it comes to Text and Data mining we see the CULT and IMCO rapporteurs moving in different directions. MEP Stihler has taken most of our suggestions onboard and broadens the range of beneficiaries and removes the limitation in purpose. MEP Joulaud on the other hand essentially maintains the Commission's proposal but adds a provision that would require that entities undertaking TDM pay a remuneration to rightsholders. From the perspective of cultural heritage institutions this makes an already flawed proposal worse and we will continue to support the approach proposed by MEP Stihler on this point.

Online educational uses

From our perspective the Commission's proposal for an new exception allowing the "use of works and other subject-matter in digital and cross-border teaching activities" has been much too limited. On this issue MEP Joulaud and MEP Stihler are again split in their approach.

Joulaud proposes a number of small improvements but he also makes the remuneration requirement mandatory. Stihler on the other hand is supportive of our arguments and makes it clear that the exception "should benefit not only all formal educational establishments i[...], but also other organisations such as libraries and other cultural heritage institutions, providing non-formal or informal education" and that "the best solution is to have a single and mandatory exception for all types of teaching, both digital and non-digital, formal and informal". In doing so Stihler's amendments fix most of the flaws of the exception proposed by the Commission.

Document delivery & e-lending

Stihler does not stop here and proposes in her draft opinion two additional new exceptions that would benefit cultural Heritage Institutions: A new exception on document delivery by cultural heritage institutions or educational establishments and an exception on public lending of literary works that is intended to facilitate electronic lending. Both of these additions are very welcome and round off Stihler's attempt to update all parts of the copyright framework that apply to Libraries and other cultural heritage institutions to the needs of the 21st century.

Whats next?

These are draft opinions that mainly reflect the views of their authors. While it is encouraging that rapporteurs from across the political spectrum (Joulaud is a french conservative and Stihler a social democrat from Scotland) see the need for improving the parts of the Commission's proposal that apply to cultural heritage institutions, it is also clear that these attempts will not be met with open arms by all stakeholders and other MEPs. We will see more positions coming out of the EP in the next few weeks both in the form of the draft report of the JURI committee which is currently being finalised by MEP Comodini and by proposals for amendments to the opinions discussed above coming from other MEPs.

In this light we will be continue our discussions with MEPs and other stakeholders aimed at ensuring support for our positions. Members of the Europeana Network can help with this by expressing support for the amendments proposed by MEP Stihler both publicly and by contacting MEPs who serve on the Committees dealing with the copyright reform proposal[b]. Together we have the chance to affect real change here that will help all of us to better achieve our objectives of providing access to the culture held by Europe's cultural heritage institutions.