August 30 Creative Commons Policy Roundup
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Timothy Vollmer
Aug 30, 2017, 6:35:20 PM8/30/17
to CC Staff, CC Affiliates, copyrigh...@creativecommons.email, Open Policy Network, iol-n...@googlegroups.com
Open Access
The market’s restless rent-seeking corrodes ideals like unfettered inquiry, knowledge-sharing, and cooperative progress. We see this on our own campuses: in sponsored biomedical research, “technology transfer” patent offices, and the miasmic spread of business jargon. We rightly resist the market’s campus incursions; there’s no reason why we should exempt scholarly communication – the thing that knits our institutions together – from that same scrutiny.
[Elsevier] has made concessions on other points, but its refusal to agree on the principle has left the academic side exasperated. "It's like you're at a car dealer trying to buy a car, but the salesperson keeps trying to sell you a carriage," Ziegler says. "You tell him ‘I don't want a carriage, I want a car.’ And he says: ‘Well if you buy this carriage, we'll give you this horse for free.’"
Preprints was an early priority for COS because it hits a sweet spot for opening scholarly communication. Preprints are widely used in a couple of disciplines, largely acceptable in the present system of scholarly communication, and provide two key benefits for open science – accelerating communication and open access.
EU Database Directive
In 1996 the European Union adopted the Database Directive, which aimed to harmonise the treatment of databases under copyright law and introduced the sui generis database right for non-original databases. In 2005 the European Commission released its first (and only) evaluation report on the impact of the Database Directive. It found that there was no evidence that the sui generis right has improved EU competitiveness by increasing the production of databases. In contrast, the presence of the sui generis right has produced a confusing legal environment in which users do not know if (or how) their uses are subject to the sui generis right. Now the Commission is asking for feedback on what to do with the Database Directive, in particular the sui generis protection. The sui generis protection in the Database Directive has caused more harm than good. It’s time for it to go.
Trade Negotiations
Creative Commons and over two dozen civil society and digital rights organisations released a letter raising concerns about the potential impact of the re-negotiation of the North American Free Trade Agreement (NAFTA) on access to information, digital rights, and the open internet. In the letter, we demand that negotiators immediately reform the trade negotiation process to make the proceedings more transparent, inclusive and accountable. We believe it is unacceptable that binding rules on intellectual property, access to medicines, and a variety of other trade-related sectors will be reworked within a process that is inaccessible and often hostile to input from members of the public. We warn against making changes to the existing rules around intellectual property, noting that in most recent multilateral trade negotiations there has been a significant push to drastically increase copyright enforcement measures, lengthen copyright terms, and demand harsh infringement penalties without corresponding provisions to protect the interests of users of copyright works.
The U.S. objectives state clearly Trump’s desire to make Canadian and Mexican intellectual property policy “similar to that found in U.S. law.” Translation: Trump favours measures to protect patented pharmaceutical companies’ immense profits, whether by delaying the entry of lower-cost generics into the market or weakening regulations or programs that contain prices.
Canada, the United States, and Mexico have entered a confidentiality agreement to protect each other's offers during NAFTA negotiations, with a list of rules designed to prevent leaks during the talks. Each government is prevented from distributing texts, emails, proposals and presentations gathered from the other countries.
The pressure for an aggressive copyright agenda out of step with U.S. law first became evident during June hearings on negotiating priorities. Recording industry interests have since doubled down on this with advertisements renewing those demands. Rightsholders have asked USTR to discard or narrow online safe harbors in NAFTA, provisions that protect telecommunications companies and Internet firms from copyright liability for users’ infringement, provided those firms respond quickly to complaints.
Latest reports confirm that the Trans-Pacific Partnership (TPP) is being revived. One of the most controversial provisions included in the TPP negotiations was to increase the copyright term length for six of the signatory countries. Such copyright term extensions, and their retrospective application to published works, are pushed through by major record and movie production companies such as the MPAA and RIAA which stand to benefit from them the most. However, extending copyright terms creates little additional income to creators. Excessively long copyright terms have often kept scholars from publishing or even obtaining access to material of real historical or cultural significance.
EU copyright reform
As a media analyst, I'm getting really tired of listening to publishers complain about how Google is using news snippets in Google Search (and Google News), and how several publishers are trying to push Google to pay a 'snippet tax'. There are two reasons why this is so tiring. First, the whole argument makes no sense. Second, there is no money in it, even if you manage to make it happen.
A ‘data producer’s right’ would ride roughshod over the existing system of intellectual property. It would violate one of intellectual property law’s maxims that data per se are “free as the air for common use”, and that only creative, innovative or other meritorious investment is protected. It would corrode IP’s mechanism of incentives by creating an undergrowth of rights that automatically protects all data produced with the aid of machines.
We were hopeful that CULT could deliver some helpful (and much needed) changes to the Commission’s proposal, including broadening the education exception, permitting cultural heritage institutions to share their collections online, deleting the dangerous press publishers right, and opposing upload filters for online platforms. Regarding text and data mining (TDM), we wished for CULT to push for expanding the exception so TDM could be conducted by anyone, for any purpose. Instead, CULT has doubled down on their backward approach to Article 3.
Australia copyright reform
The Australian government has finally tabled its response to the Productivity Commission's report into intellectual property, but did not lend its full support to the recommendations on circumventing geoblocking technology, implementing a fair use exception for copyright infringement, and expanding the safe harbour scheme.
Freedom of expression
Protecting free speech is not something we do because we agree with all of the speech that gets protected. We do it because we believe that no one—not the government and not private commercial enterprises—should decide who gets to speak and who doesn’t. But we strongly believe that what GoDaddy, Google, and Cloudflare did here was dangerous. That’s because, even when the facts are the most vile, we must remain vigilant when platforms exercise these rights. Because Internet intermediaries, especially those with few competitors, control so much online speech, the consequences of their decisions have far-reaching impacts on speech around the world.
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