Copyright Reform

The luxembourgish government has until the 7th of June 2021 to ratify the "Digital Single Market" directive (2019/790), which deals with copyright. This law will define new rules that impact the experience we have today!

The Chaos Computer Club Lëtzebuerg (C3L) is an organization that fights for freedom of communication and information, and is committed to the education about new technologies and data protection. We promote a creative and a critical way to deal with technology. As an organization that represents digital natives who believe in the freedom of creation and freedom of expression, we see this national reform as a chance to anchor civil freedom an civil rights in the law.

We imagine a world in which the citizen is protected while online, free to educate himself, to run a business and to take part in the democratic process. The recent exceptional situation showed us how important it is that our society has access to a robust communication infrastructure. But it showed also that many activities and security measures which are perfectly normal in the real life are not in accordance with the law in the electronic world.

Claims on this website are only a small and summarized part of our position paper.

Articles 3 and 4 cover the uses of copyright protected materials in research. The European legislator assessed that licensing of already legally accessible data would affect the growth of big data and artificial intelligence negatively. We, as the Chaos Computer Club Lëtzebuerg, welcome these two articles, but we want to draw attention to a few points.

• Define not just data-mining as an exception: The directive uses the notion of "text- and data mining technologies". This use is unfortunately not very clear, as for example data analysis should also be allowed. It is pointless if research is only allowed to gather data, but not to evaluate them. To reflect the different technical context in which data analysis can be done, we recommend to establish a broad definition of data mining and data analysis.
• Remote access should be allowed: The researchers should be allowed to use digitized analogue materials outside of the premises of their institution to do research. It would undermine the goal of these exceptions if this possibility would not be implemented. Furthermore, data analysts do not always have the means to build a data mining centre on the premises of their institution and are forced to use the services of data centres.
• Publication of the results of research that used copyright protected materials should be allowed: Most of the data that data researchers want to share is not a substitute for the original works. Because they have been processed, derived data are created from which the original works can no longer be extracted. Therefore, we demand that the publication of the results should be allowed in full.

Member states must introduce, under article 5, an obligatory exception that allows the school staff, educators, pupils and students to use copyright protected materials in digital and cross-border teaching activities. We, as the Chaos Computer Club Lëtzebuerg welcome this article, but we want to put the following points into consideration:

• Define "Secure Electronic Environments" clearly: We have seen, due to the coronavirus crisis, how important digital learning online platforms are. Modern education relies, also here in Luxembourg, on emails, cloud services and chatrooms etc. for the sharing of learning materials. An overly tight definition of "Secure Electronic Environments" would lead to a situation where platforms which will be used in the future could not benefit from the exceptions introduced in this article. We demand that a broad definition of "Secure Electronic Environments" should be used. We suggest the following definition:

  Secured electronic environment shall mean a digital environment, including, but not limited to, emails, messaging services, group chats or any other electronic communication networks and services, which is used for teaching and learning activities and access to which is limited to the teaching staff, educators, pupils, students and all staff of educational establishments.

• Allow non-digital, educational activities: Even if more and more eduction is taking place via online platforms, we shall not forget the analogue forms of education. We demand, that analogue forms of using copyright protected works too should be allowed for educational purposes and that these forms of usage should be part of the exceptions introduced in article 5.
• Cover formal and non-formal educational activities: The focus of article 5 is on the people or institutions, that provide education, but education has a far wider reach than only in a formal context. Also non-formal education, as done in "Maison Relais" for example, are part of the context of education today, as well as vocational training done by companies or adult training. We want to draw your attention to our wish, that these types of institutions too, which provide educational activities in a more non-formal context, should be covered in the exceptions of article 5.

The purpose of Article 6 is to ensure that museums and libraries are able to fulfill their role of preserving culturally valuable works for future generations. Article 6 obliges Member States to provide for exceptions for the purpose of conservation, but leaves it to them to provide additional exceptions, e.g. for the purpose of exhibition. We want the luxembourgish legislator to draw attention to the following points:

• An extended definition of works in the permanent collection: In a non-digital age, it was relatively easy to define which works are in the collection of a cultural institution. This, however, is no longer the case in a digital age. Nowadays, it may well be the case that libraries no longer own works but only purchase an access license. We therefore demand that, if these licenses offer a long-term access, the works in question should be considered to be part of the permanent collection.
• An open list of allowed purposes: Even though conservation is the main goal of this article, such conservation can still happen via various types of activities. As the directive leaves this open, we demand to include as many relevant activities as possible, such as, cataloging or bibliography, to ensure that all tasks related to the preservation of the works are allowed.
• No restrictions on tools, media, formats or partners: The spirit and the wording of the directive make it clear that cultural institutions should be granted the freedom to decide how and with whom they want to work for the preservation of works. This should also be clearly reflected in national implementation.

Article 7 describes the impact of the new copyright exceptions on contracts, as well as on technological protection measures. This article states that contracts may not override any of the new copyright exceptions. As well, Member States must ensure that users may access materials where access is prevented by technological safeguards. We, as Chaos Computer Club Luxembourg, would like to draw your attention to the fact that this article does not clarify how such access should be allowed, as well as that this article may be revised or amended by national law. For these reasons we demand:

• 72 hours delay until access must be guaranteed in case technological protection measures prevent access: In some Member States access may be granted by courts or by complicated administrative procedures. As a result, users often do not make use of this option. That is why we demand that the luxembourgish legislator implements a simple and transparent administrative procedure.
• All exceptions should be protected from contractual and technological override: There is no justification for protecting some copyright exceptions against contracts and leaving others unprotected. Furthermore, there is no justification for treating copyright exceptions differently, depending on the manner in which they are accessed. That is why we demand that every exception should be protected from contractual and technological override.
• Bypassing technological protection measures should be allowed, as far as necessary, to use applications under an exception: The only way to ensure that users have effective access to works secured with technological protection measures, is to give those users the right to legally circumvent these protective measures. That's why we demand that users get this right. We also demand that a request, as we propose it in point 1, should not be mandatory in order to exercise this right.

Articles 8-11 regulate the use of out-of-commerce works, and allow museums and libraries to copy them in order to preserve them or even to make them accessible to the public. Exact modalities for this (licenses) may be negotiated by museums with rights holders if they exist and are representative. We at Chaos Computer Club Luxembourg welcome this article, but would like to point the following suggestions:

• Clearly define the scope of the licensing mechanism: We need a clear definition of the scope of the licensing mechanism, so that museums and libraries can actually make an efficient and legal use of this possibility. Above all, it is important to define with whom they can and should negotiate these special licenses. However, it is also important to define how to decide when exactly a work is no longer in the market, and how much effort needs to be expended in order to determine this.
• Transparent and efficient collective management organizations: Above all, when it comes to distributing license fees to individual rights holders, collective management organizations must be transparent and efficient. Mediation bodies should be available to resolve any conflicts between rights holders' associations and users.
• Meaningful dialogue with stakeholders: A dialogue with all parties, including users, and not just rights holders.

In the long history of the EU, this directive will, for the first time, be committed to the protection of the public domain. We want to draw the attention of the luxembourgish legislator to the following points:

• Define what constitutes a work of visual art: During the implementation, the legislator must define what constitutes a work of visual art. Two dimensional as well as three dimensional art. For example, but not limited to: photography, video, drawings. Sculptures, as well as prints from a 3D-printer, shall not be forgotten. Also the meaning of the word "reproduction", should be clearly defined. We define it as all two or three dimensional reproductions of the original work, regardless of the format, techniques or media used.
• Do not protect non-original reproductions of any public domain works: Furthermore, we demand that a non-original, faithful reproduction of a piece of visual art which is in the public domain or where copyright has expired or has never existed, must remain free and open. Such reproduction may not be subject to copyright. Public domain must also apply to reproductions true to the original. Otherwise, we run the risk of making our cultural heritage inaccessible to the general public.

Article 15 seeks to improve the negative financial outlook in the digital world of press editors. A new right is planned to be introduced here, which would allow them to control how and by whom press releases may be used. This is done through so-called "Information Society Service Providers" ("ISSPs"). We would like to draw the attention of the luxembourgish legislator to a few points, in order to avoid certain negative effects of this article.

• Open-ended definition of "very short extracts": The directive states that very short extracts are excluded from this right. Now, however, it depends on the context, medium, age and societal norms, what is meant by "short" and what is not. This is why prefer that the luxembourgish legislator does not set an exact maximum length in the law.
• Exclude facts and blogs from the scope of protection of the new right: We believe that this helps to strike a balance between protection and freedom of opinion and we demand that this be taken into account in the national implementation.
• Apply all existing copyright exceptions to the new right: Article 15 creates a new layer of exclusive rights in addition to copyright. This right does protect non-original content. Nevertheless, the same exceptions and limitation should apply here as with the original content.
• Clarify that publishers can waive their new right: Inalienable rights are not compatible with free licenses. An editor should be able to waive his right. This ensures that their content can be freely shared.

Article 17 changes the liability rules for most profit-oriented "content-sharing" platforms (hereinafter abbreviated as "OCSSPs"). These platforms are now responsible themselves for the content uploaded by their users. As a consequence, they are directly liable for any upload that infringes copyright. This means that for all uploads, they may have to pay license fees or use automated content recognition technologies to filter out potential infringements immediately. This will lead to a significant restriction of the freedom of opinion of the users, because automated filtering technologies do not understand context and there are various exceptions, where the use of copyright protected material is legal (parodies e.g.).

• Introduce a remunerated exception: In order to reduce the negative consequences of article 17, we demand that the luxembourgish legislator implements article 17 as a compensated or remunerated exception. This should be introduced as an alternative authorization mechanism, to a contractual authorization. The luxembourgish legislator should also consider mandatory collective management for certain types of works.
• No general surveillance: Paragraph 8 of article 17 contains a prohibition that "OCSSPs" may not introduce general surveillance in order to implement article 17. We demand that any solution that is implemented must comply with paragraph 8 of article 17. This include automated content recognition technologies.
• Filtering technologies must be transparent to keep them in check: Platforms that use filtering technologies must set their technical parameters open and people must be given the opportunity to take action against platforms that repeatedly block or delete legitimate content. Courts or other review bodies must be able to propose changes to the parameters if the existing parameters lead to an excessive blocking.
• Platforms must publish statistics: Transparency is a means to reduce the negative impact of filtering technologies. This is why we demand that platforms, that use such filtering technologies, should publish statistics: how often something has been blocked/deleted and also for what reason. In addition, the number of complaints and the resolutions of those complaints should be published.