In early October, the European Parliament’s Legal Affairs Committee will vote on the Digital Single Market copyright legislation. Here we would like to express our alarm at the direction EU copyright legislation is taking. We are profoundly concerned that a number of proposals, including Article 11 and Article 13, will mean disproportionate restrictions on the fundamental right of freedom of information as well as the creation of new and costly barriers and administrative burdens for adopted EU policies mandating open access, open education and open science.
Frankenstein reproduction right
With the original objective of “protecting equality, press and informed news”, the proposed “publishers right”, or “ancilliary copyright” could very well turn into an unbounded and unrestricted ‘frankenstein reproduction right’ that goes far beyond existing copyright’s “orginality requirements”. The proposed “reproduction right” is radically different from existing copyright law where the originality requirement prevents the appropriation of facts, ideas and non-original expression which are usually not considered to be protected by copyright. Many amendments on the table today before the Legal Affairs Committee aim at prohibiting the use of even the smallest bit or snippet of any text, image or sound from a press article, from public information or from an academic text without the prior permission of the publisher. The negative impact on access to information, access to knowledge and scientific scholarship could be devastating. We are facing a clear attack on our democratic rights as European citizens.
It should be noted that this new layer of copyright does not exist in the US nor in international copyright law.
“Closed science”, “Closed access” and “Closed data”
Many elements of articles 11 and 13 constitute a frontal attack on open science programmes as supported by the Commission, the Council and the European Parliament.
New filtering, policing, monitoring and payment obligations would significantly weaken access to valuable research content produced through public funding by creating extra costs, bureaucratical burdens and legal uncertainty for the academical community. These new legal obligations of intermediary liability would enter into direct conflict with the open science and open access policies that are being widely adopted in Europe and around the world. The aim of these policies is to increase access to research results in order to maximize the use and benefits of science across all sectors. To support open access and open science, universities, libraries and research organisations manage repositories in which researchers upload scientific articles, publications and research data so that everyone can benefit and use the results of research, including other researchers, industry and the public. A new filtering and payment obligations would significantly inhibit through legal uncertainty access to valuable research content produced through public funding, and greatly slow the progress of open science.
Crippling academic “open access” repositories
This new attempt at the enclosure of knowledge threatens the movement towards widespread availability of scientific results for the good of all, and the existence of over 1250 repositories that non-profit European institutions and academic communities use to disseminate academic output. It is important to note that, in the context of academic research, the creators of the content -the scientists- do not receive any financial compensation for their articles, yet publishers often demand that researchers sign over their copyright to the publishers.
Many universities maintain that a new intellectual property right for academic publishers would do “untold damage to the ability of researchers to share their findings and reference the world of scholarship in their published works” (LERU 2016).
Building walls around open data
Open data means that there are no legal restrictions to access to or use, modification and sharing of information for any purpose, subject at most to an obligation to attribute the source. ‘Open’ also means there are no technical restrictions to access and use, e.g. the data is offered in machine readable formats, and in open format rather than in a proprietary format. In contrast, Articles 11 and 13 directly and indirectly restrict the use of open data as well as difficulting open access which are flagship strategies of the EU and its Horizon 2020 research and innovation framework.
Restricting freedom of information
A key rationale that underpins freedom of expression is that the free flow of information is indispensable as it helps ensure that the best democratic decisions are taken. The right protects not just the imparting of ideas and information, but all phases of the communication process, from the gathering of information including a right to access sources, to the communication and reception of it. The legal implications of articles 11 and 13 could mean barriers to the access of citizens to news, public interest information and institutional data, all necessary for informed democratic debate. The public sector might very well automatically own a great deal of publishers intellectual property within its own publicly owned publications. To create exclusive rights in information for publishers will necessarily interfere with the freedom of expression of others. It should be noted that the European Charter of Fundamental Rights upholds a strict standard of scrutiny in the case of news and other public interest information.
In general the EU’s copyright reform has been hijacked by the publishing industry lobby and has been turned into copyright counter-reform that aims at further enclosing knowledge at the expense of our scientific, academic and cultural commons.