The European Parliament created a photo contest to celebrate the end of “all extra roaming charges” in Europe, inviting European citizens to share their “summer pictures from all around Europe” on Instagram.
The problem is that not all European countries have the Freedom of Panorama exception. In those countries, the citizen that takes a photograph must check if it includes a building, a sculpture, a painting or other work that is still under copyright (good luck with that!) and in that case will have to ask for permission from the rightholders, which is almost impossible and/or will imply the citizen pays whatever the rightholders ask.
This means that countries like Italy, that don’t have the exception, will be hardly represented in the contest. The same with countries, like France, that have the exception but only for non-commercial uses: citizens participate in the contest by uploading their photos to Instagram, that can make money with that content and thus commercial use. Recently, the Wikimedia Sweden lost a case in court, because it seems “that works freely displayed in public could be photographed but, irrationally (in our view), could not be shared online” (I find it irrationally, too!). You can check the status of the exception by country in the Wikimedia Commons page (some countries have the exception, but it does not cover all types of works).
So, what it seemed a really good idea to promote cohesion, knowledge and culture throughout European countries can actually turn out to be a terrible idea. Some of the photos already submitted depicting buildings and sculptures can be infringing copyright.
One of the submitted photographs depicts the Place Royale, in Nantes, where the installation La Terre où les arbres rêvent 2017, two sculptures by Laurent Pernot, can be seen. Although France has freedom of panorama, the exception only covers non-commercial uses, which is not the case of Instagram. So there is a good chance this photo is infringing copyright.
What will the European Parliament do, after telling European citizens to share their “summer pictures from all around Europe”? Will it accept these photos that can be infringing copyright? Will it reject them, discriminating those countries that don’t have the exception or have a very narrow one? Will the EP tell the participants why their photos are not being accepted? Will the European Parliament check all the photos before accepting them? Some of them don’t even refer the country or the place where they were taken, the task can be almost impossible.
I’m really not seeing a happy ending here.
I hope the European Parliament takes their own example to reflect on the need of a mandatory freedom of panorama exception, that is not restricted to non-commercial purposes, in all European countries, and vote favourably the proposal that is on the table, after the summer holidays.
The European Parliament (EP) is discussing the European Commission (EC) proposal for a new European directive on copyright, that will endanger education and scientific research, freedom of expression and freedom of information.
The Members of European Parliament (MEP) submitted amendments to the EC’s proposal that are now being discussed and voted in EP’s committees according with the following timetable, taken from Julia Reda’s Website:
We all need to contact our representatives in the European Parliament (MEPs) and tell them:
to support and vote favourably on those amendments that widen the scope of the TDM exception. Everyone that has legal access to texts and data should be allowed to mine those texts and data. The right to read is the right to mine. EC wants to allow only research centres to do TDM, and only for non commercial purposes, prohibiting startups, public entities, cultural heritage institutions, journalists and citizens to do it;
to support and vote favourably on those amendments related with technological measures. Technological measures (DRM) kill your right to exercise copyright exceptions in education, scientific research, cultural heritage, etc. We need to change this and now there’s an opportunity: if those amendments are approved, technological measures will never stop citizens from exercising the exceptions again in Europe. The best part is those amendments do not change the rightholder’s rights, they will have exactly the same rights, they can still use technological measures (DRM) in their works and DRM will still be protected by law;
to support and vote favourably on those amendments that extend the copyright exception for education and reject a licensing system and levies, that educational entities cannot afford;
to support and vote favourably on those amendments that reject article 11º (publishers’ rights). EC wants to create a new 20 years related right to be given to news’ publishers, endangering the sharing of links with snippets or a title to a new’s article. A similar law didn’t work in Germany and was disastrous in Spain. It is also an abject limitation on freedom of expression and access to information and independent academics unanimously oppose to extra copyright for news sites;
The contacts of MEPs can be found in the EP’s page. The most important vote is JURI Committee vote, so if you don’t have time to contact all your representatives, you should prioritise JURI’s. Check your country below to see how to contact your representatives:
If you are from Czech Republic, you should contact (change [at] for @):
Como já devem saber, a Comissão Europeia lançou uma proposta para uma nova directiva sobre direito de autor. No que respeita ao ensino, a excepção que temos ainda é muito restritiva, masa proposta contém alterações significativas para pior:
Diferencia a utilização digital da utilização analógica, introduzindo ainda mais complexidade à lei e indo contra a realidade, onde cada vez mais é quase impossível distinguir o uso digital do uso analógico;
Restringe o uso da excepção às premissas de um estabelecimento de ensino, esquecendo todos os lugares, que não são estabelecimentos de ensino, mas onde este é prestado (bibliotecas, museus, espaços de conferências, entre outros);
Restringe o uso da excepção a redes electrónicas a que só alunos e professores de um estabelecimento de ensino podem aceder, impedindo escolas, universidades e outras instituições de ensino de fazer uso de redes públicas e alargadas, que lhes podiam permitir aumentar a sua rede de contactos, estabelecer parcerias colaborativas e, muito provavelmente, impedindo materiais em acesso aberto de beneficiarem da excepção;
Permite e incentiva os Estados-Membros a optarem por um sistema de licenças, em que a excepção deixa de existir e as instituições educativas passam a ser obrigadas a negociar com as entidades de gestão colectiva as utilizações que precisem de fazer, aumentando os custos para as instituições;
Permite aos Estados-Membros criar uma taxa à semelhança da taxa da cópia privada.
I finally got time to write my opinion on the disappointing news that Sir Tim Berners-Lee was endorsing EME. The comment is still in moderation, so I thought I post it also here.
W3C is planing to vote EME, tomorrow, 13 April, which, if approved, will flood the Web with DRMed content. The Open Rights Group created an easy way for all of us to write both to Sir Tim Berners-Lee and W3C. Go there and say no to DRM.
Dear Sir Tim Berners-Lee,
After reading and thinking for quite some time about this text of yours, I decided to comment here to tell you not only that I would like to ask you to reconsider your position, but also to be sure that if you don’t, at least you know exactly the context where you’re deciding this.
The reason why I think there’s a possibility that you don’t know exactly the context of this, is that in this article you talk about DRM as if it was a bother, which it is, but that’s not the real problem with the DRM.
The problem with DRM is that it prevents users from exercising citizens’ fundamental rights/human rights.
So when you’re making it easier for some companies to use DRM on the Web, you’re actually helping these companies to stop citizens from exercising their fundamental rights/human rights.
To understand this, we need to understand what copyright is, so bear with me.
Copyright is an exclusive right. This means that only the author can use his work and only the author can authorise others to use his work. This is the right we give to authors, by default.
Lawmakers also decided they couldn’t maintain copyright only like this, because in that case copyright would kill fundamental rights/human rights of all the other citizens.
Example: Imagine you wanted to use an excerpt of a copyrighted work to give your opinion, or to discuss it, or to criticise it, or to correct an information. You would have to ask rightholders for permission. And they could tell you that if you wanted use an excerpt of their work to say it was wrong, for example, they wouldn’t give you their permission. They could deny their permission, whatever the case. So, you couldn’t exercise your right to freedom of expression.
So, to guarantee all the citizens’ fundamental rights/human rights, lawmakers decided to create exceptions to copyright:
a) They created an exception to copyright that allows you to use excerpts of a work to give your opinion, to make an argument, to correct something, to criticise, to make a parody, etc. in order to guarantee your fundamental/human right to freedom of expression;
b) They created an exception to copyright that allows you to use excerpts of a work to teach, learn and do scientific research in order to guarantee your fundamental/human right to education;
c) They created an exception for media in order to guarantee the fundamental right to freedom of information;
d) They created an exception for libraries and other heritage institutions, that otherwise couldn’t exist, to guarantee your fundamental right to access your own heritage and culture;
e) They also created other exceptions, you can read about them in the European Directive of Copyright, article 5 (in your case this is Fair Use, it’s not exactly the same thing, but it has same purpose).
*What has DRM to do with this?*
When lawmakers were convinced to give legal protection to DRM, they did it in a “total” way, meaning that:
1) if you circumvent the DRM to do file-sharing, which is illegal, the circumvention of DRM is also illegal;
2) if you circumvent the DRM to do one of the copyright exceptions (to use an excerpt to teach or criticise, for example), which are legal, the circumvention of DRM is still illegal.
The problem with the second situation is that, in the case of DRMed digital works there’s no way you can do any of the copyright exceptions without breaking the DRM. And you can’t break DRM: you can go to prison.
Doesn’t matter if you bought the book or the film, doesn’t matter if you want to make a legal use. If you break DRM, even in these legal cases, you can go to prison. That’s what the law says.
We have these rights, they are fundamental rights/human rights, but if the work has DRM we can’t exercise those rights.
*What are you and W3C really doing?*
So, when you endorse EME, you’re making it easier for those companies to flood the Web with DRM, which actually means you’re helping those companies to prevent citizens from exercising their fundamental rights/human rights.
You argue that you can’t change the law. This is actually an argument to not endorse EME.
You’re doing something that you know it stops citizens from exercising their fundamental rights. Then you tell us you can’t change this and you’re doing it anyway. Well, if you can’t change the law, you can’t guarantee citizens’ human rights, so you should not make an action that helps to kill these rights.
*What can you do?*
You could solve this in a very simple way. You only have to tell those W3C members that want to push EME forward that right now the law does not guarantee citizens’ fundamental rights (AKA Copyright Exceptions) when works have DRM, so W3C should put EME on hold.
You can even tell them that if and when the law changes to guarantee citizens’ fundamental rights, then W3C can work on EME again.
And they have an advantage over you, because you can’t change the law, but they can. I was going through the W3C Members’ list and found that W3C has as members the most powerful associations and companies, both from rightholders side and companies that use/make DRM side.
You know, the ones that convinced politicians to make this DRM law and the ones that can easily convince politicians to correct the law.
EME has nothing to do with technology, it’s about fundamental/human rights of real people, with real lives, in a real world.
If you feel you owe us an explanation, this is the one we need: why are you helping associations and companies to stop all of us from exercising our fundamental rights?