June 23 Creative Commons Policy Roundup

[Timothy Vollmer]

Diego Gomez legal defense crowdfunding campaign 

A month ago we reported that Diego Gómez, the former Colombian student who’s been prosecuted for sharing a research paper online, had been acquitted of criminal charges. But within days of the ruling, the author’s lawyer appealed the decision, meaning that even after several years of unnecessary (and expensive) criminal proceedings, Diego’s case continues to the appellate court. Ridiculous. Students shouldn’t be subject to lengthy and stressful lawsuits for sharing knowledge. A crowdfunding campaign has been launched to pay for the ongoing legal expenses. Over $5000 has already been raised. Please share and donate if you can. 

EU copyright reform slogs into summer

The Parliament committees are now negotiating amendments to the Commission's copyright directive. The Internal Market Committee was the first to vote on its compromised changes. And even though some of the worst amendments didn't survive, the vote is a bit of a mixed bag. COMMUNIA reports that

• Article 13: While the provision remains, the mechanism by which it would address upload filtering steers clear of relying primarily on content recognition and technological measures as the go-to solutions. 
• Article 11: The controversial ancillary right for press publishers was expected to be removed in the committee vote, but instead it was only slightly weakened: hyperlinking would not fall under the new right, and the new law would not be applied retroactively. MEP Reda criticized several no-shows to the important committee vote, which might have tipped the balance into agreeing on a more balanced set of changes in support of users. 
  
• Freedom of Panorama: The committee vote introduced an exception for freedom of panorama, which is a good addition for users. The issue was completely ignored in the original Commission proposal. 
• UGC: An exception for user-generated content was introduced, which would permit the digital use of protected content would be possible for purposes such parody, criticism, or entertainment, and would not limited to only non-commercial cases.
• TDM: The exception for text and data mining stays relatively the same, and still limits the beneficiaries to only research organisations, and only for purposes of scientific research. 
• Education: the compromise amendment opens the door to another beneficiary (cultural heritage institutions), but the scope of the exception is still too narrow, and still relies too heavily on extended collective licensing as a means for Member States to get around having to comply with the exception

On a point related to platform mechanisms to filter for copyrighted content, Daphe Keller penned an interesting op-ed in The New York Times. 

Fair use is yuge

CCIA has released an updated version of its "Fair Use in the Economy" study. The study—which uses the same methodology adopted by the entertainment industry to show the massive impact of IP in the US economy—found that industries that depend on fair use constitute one-sixth of the economy. The study found that in 2014 fair use industries accounted for 16 percent of the economy, employed 1 in 8 workers and contributed $2.8 trillion to the GDP.

NAFTA consultation produces typical responses

With the expansive trade pact back on the table, USTR asked for feedback on the negotiating objectives for modernizing NAFTA. Last week CC submitted a response. We urged USTR to ensure that the copyright provisions in NAFTA should not be expanded to create new (and likely more onerous) rules than those that already exist in the agreement. If the copyright provisions must be reconsidered, a negotiating objective should at a minimum be to advocate for stronger protections for copyright limitations and exceptions; user rights should be granted a mandatory and enforceable standing alongside the rights of authors. In addition, the negotiations should be made through procedures that are transparent to the public and which include all stakeholders, especially the public. The responses from the entertainment industry and rightsholders associations are typical in that they almost uniformly reject the idea of balance as an objective in copyright law. Instead, they recommend additional enforcement, the removal of intermediary safe habors, and absolutely no exporting of user-friendly exceptions (like fair use) to Canada or Mexico. 

Publishers locking down research, again

The American Psychological Association has started to monitor and issue copyright takedown notices of unauthorized online postings of APA journal articles. Apparently this included sending notices to researchers telling them to remove their own papers from their academic department websites. 

Nature reports that Elsevier has been awarded $15M in damages in a copyright lawsuit against Sci-Hub, the rogue site that hosts likely the most comprehensive collection of scholarly journal articles on the web. Since the site is operated outside of the U.S. jurisdiction, few think that Sci-Hub is likely to pay any damages. But more interesting is the response from the publishing industry. Michiel Kolman, president of the International Publishers Association, said: "Sci-Hub apologists should know that such sites inflict serious damage on the scholarly community." The statement is instructive because it clarifies that when they say "scholarly community" they really mean "commercial publishers". Because if the purpose of scholarship is to share information to advance scientific discovery and research (instead of protect publisher greed), then Sci-Hub represents a great benefit to the scholarly community. 

WIPO

Teresa Nobre, copyright expert at COMMUNIA and Legal Lead for Creative Common Portugal, writes about the ongoing discussions at WIPO regarding copyright limitations and exceptions for educational purposes. Several countries have called for the development of a legally-binding instrument that would require all participating nations to adopt fair copyright rules that empower teaching and learning. At the same time, other countries have pushed back against a binding, harmonised approach.