Freedom of communication is fundamental to democracy and is closely linked to numerous freedoms including freedom of science, information, opinion and the arts. Copyright law, which in the pre-digital age was mainly the concern of professional creative people and media companies, now frequently conflicts with freedom of communication. This conflict has consequences for scientists, teachers, activists, and for the authors themselves. With our project control © we want to clarify the fundamental rights issues at stake in the conflict between freedom of communication and copyright law.
The tension between copyright law and freedom of communication implicates privacy protection and the foundations of the open internet. As a result, legislative proposals to strengthen copyright law are often met with protests from civil society. In addition to the users of copyrighted content, authors themselves also need support in order to enforce their rights in disputes with companies or the state.
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Guarantee freedom of science
Knowledge multiplies when it is shared. Unfortunately, scientists repeatedly encounter barriers when trying to access research results. The goal of the Open Access movement is to make scientific findings, most of which are already publicly funded, freely available to all who wish to access them. This is also in the interest of the authors, who are often forced to cede the rights to their studies to commercial scientific publishers without earning any money from the research themselves. Paywalls, which make access to scientific research results conditional on users paying a subscription fee, are an obstacle to scientific progress, and the legislator has now also recognized this.
However, the rules that are intended to enable scientists and scholars to publish their results more quickly in Open Access are often so complicated that they are still not widely used. Problems also arise when copyrighted materials are the subject of scientific research, such as in the digital humanities when researchers are unable to freely share the datasets that form the basis of their research.
This is where we want to create legal certainty in the sense of academic freedom by means of strategic legal actions, for example by helping researchers to legally enforce their rights of use under copyright exceptions.
Say no to upload filters
The new EU Copyright Directive poses a significant risk to fundamental rights, particularly with its introduction of mandatory “upload filters,” which online platforms would have to use to automatically detect and block copyright infringements. Those filters are incapable of detecting legal uses of copyrighted content such as parodies or quotations and risk blocking these legal forms of expression as well. We at the GFF consider these filters to be incompatible with the EU Charter of Fundamental Rights. In the past, the Court of Justice of the European Union has ruled that the screening of all uploads of users of a platform for possible copyright infringements would unduly restrict the freedom of expression and information of the users as well as the entrepreneurial freedom of the platform provider. Depending on how such a filter works, the associated data processing could also restrict the fundamental rights to data protection and confidentiality of communications. Automatic upload filters are not able to reliably differentiate between copyright violations and legal uses within the framework of copyright exceptions and limitations, such as the right to quote or parody copyrighted material. For this reason, the UN Special Reporter on Freedom of Expression and dozens of European copyright professors, among others, have called into question the compatibility of Article 17 of the new Copyright Directive with fundamental rights.
To date, more than 5 million people have signed a petition against upload filters and over a hundred thousand have taken to the streets in order to protest them. Some platforms, such as YouTube and Facebook, already voluntarily use upload filters to scan for copyright violations but these filters often make mistakes. In addition, the notice-and-take-down system, which is based on American copyright law, can be used to suppress political reporting. Under the notice-and-take-down system, copyright holders can report copyright violations to platforms, which must then remove the allegedly copyrighted material. European companies also make use of this system; however, it is often difficult for the platforms to determine whether the notices come from actual copyright holders or are made by individuals who want the content to be taken down for other reasons.
With the implementation of the EU Copyright Directive, the dangers to freedom of communication threaten to intensify. The legislator has until June 2021 to transpose the controversial Article 17 into national law, but we are already setting the course to defend freedom of expression and information in court. From now on, users and authors can contact us at info@freiheitsrechte.org with copyright issues relevant to fundamental rights.
Liberate cultural heritage
EU copyright reform brings many new opportunities to unlock cultural treasures and make them accessible online. Because copyright law applies for 70 years after the death of the author, and commercial availability of new works usually ends after a few years, much of our cultural heritage is not currently accessible online. Wide availability is only possible for works that are either very new (and therefore still in commercial circulation) or very old, which can be made publicly available as public domain works by cultural institutions. In between the very old and the very new is the “20th century black hole”; a huge treasure trove of pictures, music, poems, films and old newspapers that gather dust in the archives. The EU’s new rules on digitalizing and making out-of-commerce works available aim to improve access to cultural materials. Project control © wants to help libraries, museums and archives to make use of these new rules and strengthen access to culture, science and information.
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Further Information
- European Digital Library Europeana – The missing decades: the 20th century black hole in Europeana
control © is supported by Shuttleworth Foundation.