
EU copyright proposal could undermine the use of Creative Commons licenses - c3o
https://creativecommons.org/2018/03/29/head-copyright-committee-wants-deny-eu-creators-right-share/
======
Someone1234
While this isn't great, it is worth remembering that this is one individual's
proposals that hasn't passed any committee, any vote, any vetting, any review
period, and is a long way off becoming enacted.

I'm all for voicing descent to this bad idea. I just want people to keep it in
the context it belongs (a very big longshot for getting through as-is
regardless).

~~~
c3o
That's too optimistic. Let's dive into how EU law is made:

First, the Commission (~government) proposes a law. They proposed this "extra
copyright for news sites" that covers even tiniest snippets of news content
and thus would put a price tag on links to news. In their version, publishers
could opt out of it – but it would still cause major problems. Leading IP
researchers said it will "deter communication of news", "negatively affect
authors" and "hinder European innovation" [http://www.create.ac.uk/policy-
responses/eu-copyright-reform...](http://www.create.ac.uk/policy-responses/eu-
copyright-reform/)

Next, the Parliament and the Council (member state governments) need to
approve the plans or suggest changes. The Parliament nominates one MEP to
shepherd this process. In this case that's Axel Voss (from Merkel's CDU). His
job is to get together with the other parties and then make a proposal that in
his assessment enjoys majority support in the Parliament.

This is what this article is about. Not "one individual's proposal", but the
lead negotiator's view of what a majority of the Parliament supports: Doubling
down on an already bad idea by making the right inalienable.

He may be wrong about that – we'll know when the Legal Affairs Committee votes
on it on June 20/21\. Other MEPs will file counter-proposals, but one of them
winning out would be a rare, unexpected upset. Voss may also make changes to
his proposal until then, but so far he's brushed off all opposing arguments.
And yes, even if his plan is approved, there's a chance the "inalienable
right" addition (the threat to Creative Commons) may not survive final
negotiations with the Council and Commission.

The thing is: This vote is the number one chance the public has to affect what
will be in this law, and thus whether there'll be a "link tax" in Europe. We
need to push our representatives to reject that idea in that vote, not double
down on it.

~~~
tscs37
This isn't the first time Axel Voss has dumped out a proposal that would
undermine how half the internet operates and make the other half open to a
court case from the first half.

------
tzs
> But Voss wants to amplify its worst features by asserting that press
> publishers will receive—whether they like it or not—an “inalienable right to
> obtain an [sic] fair and proportionate remuneration for such uses.” This
> means that publishers will be required to demand payment from news
> aggregators.

Does "inalienable" mean something different in European law than it does in US
law?

In the US, having an inalienable right doesn't mean that you are required to
exercise that right. It just limits what others can do to stop you from
exercising it. For example, we have an inalienable right to travel. That
doesn't mean we _have_ to travel. It just means that government is limited
when it comes to things that impact our exercising that right.

I could contractually agree to limit my exercise of that right, and that would
be fine. Such a contract could be enforceable.

~~~
icebraining
From the uses I know in my European country, it usually means you're not
required to exercise it, but you can't limit it by contract either.

That said, in this particular case, the linked proposal specifies what it
means:

 _" The digital use of press publications should be obligatory remunerated"_

~~~
toyg
Looks like a mistake there - _obligatory_ is not an adverb, that's
_obligatorily_.

UK is not even out of the EU and the level of English is already going down!
/s

------
tuukkah
> _[T]he latest proposal from the head of the copyright committee would deny
> creators the right to refuse remuneration — the right to share a work
> without getting paid — which could undermine the use of CC licenses if
> approved._

This threatens all Open Source too!

EDIT: Ok, missing from the article, but this would only apply to "press
publications" by "publishers of press publications and news agencies":
[https://juliareda.eu/wp-
content/uploads/2018/03/voss11.pdf](https://juliareda.eu/wp-
content/uploads/2018/03/voss11.pdf)

UPDATE: full picture here: [https://juliareda.eu/eu-copyright-reform/extra-
copyright-for...](https://juliareda.eu/eu-copyright-reform/extra-copyright-
for-news-sites/)

~~~
c3o
This particular new right would apply only to "publishers of press
publications and news agencies" (to quote one of the recent drafts), which is
why I added "in journalism" to the title to clarify [edit: but mods removed
it].

Open source is unfortunately threatened by a different provision, which would
force GitHub and other code hosts to implement "ContentID"-like filters trying
to detect copyright infringement in commits:
[https://blog.github.com/2018-03-14-eu-proposal-upload-
filter...](https://blog.github.com/2018-03-14-eu-proposal-upload-filters-
code/)

~~~
_jal
Some quick googling didn't turn up an answer - do you know how "publishers of
press publications and news agencies" are defined? Does my blog count?

~~~
DanBC
[https://juliareda.eu/wp-
content/uploads/2018/03/voss11.pdf](https://juliareda.eu/wp-
content/uploads/2018/03/voss11.pdf)

> For the purposes of this Directive, it is necessary to define the concept of
> press publication in a way that embraces only journalistic publications,
> published by a service provider, periodically or regularly updated in any
> media, for the purpose of informing or entertaining. Such publications would
> include, for instance, daily newspapers, weekly or monthly magazines of
> general or special interest and news websites. Periodical publications which
> are published for scientific or academic purposes, such as scientific
> journals, should not be covered by the protection granted to press
> publications under this Directive. This protection does not extend to acts
> of hyperlinking which do not constitute communication to the public
> according to the judgements of the Court of Justice of the European Union
> (CJEU), notably hyperlinking to content which is available in the internet
> to the public with the consent of the rightholder, and hyperlinking to
> content which is available on another website without the consent of the
> rightholder for non commercial purposes by a person who did not know or
> could not reasonably have known the illegal nature of the publication of
> those works on that other website (CJEU Judgement of September 8, 2016 in
> Case C-160/15).

~~~
_jal
Thank you!

------
DiabloD3
I am a content creator that sometimes uses CC as a license. I am also
American.

I know this is a bit of a nuclear option, but would (re-?)licensing my works
as CC+"EU ban" actually help the use of my works in the EU? Essentially, I
would ban the use of my works in any country that makes such laws (which would
violate my rights as a copyright holder to license my work however I see fit),
thus preventing the foreign nation from applying additional restrictions to my
license because it is already banned in their country.

Obviously, I could not enforce such ban (nor would I; the entire point is to
hamstring the government's actions, not the actions of the consumers of my
content), but they couldn't modify my license without legitimizing my license.

In essence, it's like how in the US, it is illegal to pay taxes on illegally
gotten gains, because it puts the IRS in a weird spot and forces you to
violate your own rights of self-incrimination while making the IRS implicit
partners in your crime.

~~~
Tyrek
It is illegal in the US to NOT pay taxes on illegal profits. That's how Al
Capone was taken down - it's infinitely easier for the government to prove
that you had income that was not declared than it is to prove that the income
came from specific illegal activities a, b and c.

------
nmstoker
Have the concerns raised by CC received attention from serious lawyers? I'm no
lawyer, but I fail to see how this:

... an “inalienable right to obtain an [sic] fair and proportionate
remuneration for such uses.” suggests that I _must_ get paid whether I want it
or not, as the CC post seems to rely on for stoking up concern.

Surely it's the same as an inalienable right to free speech - you're not
obliged to actually go round speaking freely, it's inalienable in the sense
that you can't get rid of that right, not that you must exercise it!

~~~
c3o
The back story of the law may shed some light.

First, it's no secret that the intent is to prop up the business model of
struggling publishers by getting internet platforms to pay them for spreading
(links to/tiny snippets of) their content.

After a "link tax" law was introduced in Germany, some publishers decided to
waive it. Google reacted by removing snippets from those who didn't in Google
News, making their links less likely to be clicked on. Afraid of losing
traffic, these publishers then granted Google a free license.

The government of Spain looked at this result and decided to implement the
idea as an inalienable right, to make sure some publishers couldn't opt out,
and Google would have to pay up. In response, Google shut down Google News
altogether in Spain.

This is the version that the Parliament's chief negotiator now wants the EU to
implement. He believes that Google (and Facebook and Twitter, which have been
added as targets) wouldn't dare shut down a service across all of Europe.

~~~
leereeves
Google (and the other portals) would probably shut down a service across all
of Europe if it were losing money.

That might be the outcome publishers want. They might imagine that if they
eliminate outside links to individual stories, people would be forced to use
publisher's sites as portals to the news.

~~~
c3o
You're exactly right: The big publishers lobbying for this aren't particularly
scared of that outcome. They'd prefer to just receive millions from FB &
Google, but if those platforms get out of the news sector entirely, they
expect their consolation prize to be regaining control over how people find
news, renewed brand loyalty, increased front page traffic and an advantage
over smaller and new competitors.

~~~
michaelmrose
Couldn't I or a million other individuals that aren't multinationals with
holdings in Europe just start a news site while thumbing my nose at their
inalienable rights?

~~~
icebraining
You could. And then you could get blocked by the ISPs after the courts order
it.

~~~
michaelmrose
Lets see if we can teach Europe that they need to pay US companies for vpns in
order to get around the right to be forgotten AND link copyrights.

------
DanBC
It's useful to read the actual proposal, which doesn't seem to match the angle
from creative commons: [https://juliareda.eu/wp-
content/uploads/2018/03/voss11.pdf](https://juliareda.eu/wp-
content/uploads/2018/03/voss11.pdf)

For example, compare this from the article:

> 11\. This is the provision that would introduce an additional right for
> press publishers to extract fees from news aggregators for incorporating
> short snippets of—or even linking to—their content.

With this from the proposal:

> 2a. The rights referred to in paragraph 1 shall not extend to acts of
> hyperlinking which do not constitute acts of communication to the public.

EDIT: the analyis from Julia Reda is pretty good too:
[https://juliareda.eu/eu-copyright-reform/extra-copyright-
for...](https://juliareda.eu/eu-copyright-reform/extra-copyright-for-news-
sites/)

~~~
sgc
What text are you going to include in your hyperlink? Must every hyperlink
title be paraphrased? It does seem to impact even the most basic hyperlinking
as it has been used for the entire history of the internet.

------
klez
Doesn't this provision basically contrast with copyright itself? Doesn't this
erase the rights an author has on its work, including giving it away for free?

~~~
IAmEveryone
There are similar inalienable rights in copyright, collectively referred to as
"moral rights":
[https://en.wikipedia.org/wiki/Moral_rights#In_Europe](https://en.wikipedia.org/wiki/Moral_rights#In_Europe)

It's a bit murky, especially in an international context. But they generally
aim to protect authors, specifically in the author<->publisher relationship.

It may seem counter-intuitive that taking away "your right to relinquish your
rights" may be protecting you. But the idea is the same as whatever law stops
you from selling yourself into slavery.

~~~
Certhas
This is completely typical in consumer protection laws. You can't legally sign
away your right to warranty for example, and I believe that in some
jurisdictions you can't sign away your right to sue (like you would if you
agree to binding arbitration).

I'd really like to see a more thorough argument than the linked blog on
whether or not the proposed section is really a huge problem, and/or does
nothing to protect legitimate rights holders who are in an asymmetric
relationship with google that is maybe not to dissimilar to the consumer
situation.

~~~
michaelmrose
It's unalienable because a reasonable party would just refuse to pay for the
privilege of linking to you and a reasonable content creator would realize
that losing 50-80% of traffic coming from the people who you think ought to
pay to promote you would be a bad bargain.

Its inalienable to short circuit the normal results of negotiations between
big companies because they don't like the end result.

------
IAmEveryone
Before you call this legislation, and legislators everywhere "clueless", as
some unfailingly will, take a moment to consider its motivation.

Because you can disagree with this proposal, and I do. But arguing against it
should start with an attempt to understand its background.

Many European countries, as well as rural US states, have seen their local
press landscapes dying. Where there used to be two or three quality local
papers, there are now one or none. And those often no longer have the
resources to devote to actual investigations of local issues.

The reason is obviously the internet, on two fronts: First, often overlooked
yet more important, is the death of classifieds and ads. These used to provide
about half of publishers' revenue. Craigslist and Google Ads have reduced
these opportunities drastically (i. e. by about 80%).

On top of that comes the competition by publishers on the internet.

The issue now is that it simply doesn't pay to devote any resources to any
serious investigation. The Wall Street Journal might pay a reporter for half a
year of work to produce a story on corruption at the FAA. But ten minutes
after that story is published, the AP and every news site on the web can quote
the essential information.

Nw if you believe copyright and patents should be completely abolished, then
it's completely fair to call this idea by the EU "clueless".

But if you think that (limited) intellectual property laws may, in principle,
be acceptable and important to allow investments in such endeavours, then this
idea doesn't seem as outlandish.

I still believe these ideas are misguided, and there might just not be a good
way to create a workable system around such rights. But as a believer in the
necessity for a vibrant media landscape to inform the public discourse, I
don't enjoy watching the press' misery either.

~~~
c3o
It's true: Publishers' business model is under threat, and some politicians
pushing for this law are doing to so out of a genuine interest in fixing that.

But actually, only a few very big publishers have lobbied for this, claiming
that this would "save journalism in Europe" when they care mostly about their
own bottom line. Limiting how news spreads on social networks and aggregators
is not in the interest of and would actually harm smaller publishers, who
benefit from competing with the big brands on such sites on an equal footing.

Small, independent and innovative publishers had to get together to form their
own lobby organisation to OPPOSE this law that politicians would claim is to
their benefit: [http://mediapublishers.eu/our-
views/](http://mediapublishers.eu/our-views/)

------
dosycorp
I find it humorous that this is being done with good intentions, "to benefit
creators".

In one sense it appears tone deaf to how much CC-licensed sharing can be
argued to enable an economy of content creators, by lowering certain
transaction costs.

But in light of recent revelations and the public mood, it seems more
prescient: perhaps pointing the way to a future where everybody pays for every
little bit of content they consume, rather than being the product themselves,
in a "free" offering. That old idea of micropayments for content, here we
come, eh? And the EU being the first (for once) to lawify it. Is it too early
to pat them on the back?

If you can encourage reuse, that's good. If you can encourage payment, that's
good. Different strokes, for different folks, works. As I understand it, the
proposal forces payment. That's not good. Creators choices should not be
constrained in this way.

Instead of constraining options, I feel EU legco, should see if there is an
opportunity to legislate to ease the way for implementing and executing
micropayments / content transactions ( a real problem ), if there is, do that.
Law that engages with and enables technological realities, rather than trying
to constrain something already useful, would seem to work better here.

------
nerdponx
_press publishers will receive—whether they like it or not—an “inalienable
right to obtain an [sic] fair and proportionate remuneration for such uses.”
This means that publishers will be required to demand payment from news
aggregators._

Is this even what Mr. Voss intended? Who benefits from this? Couldn't this be
fixed by replacing "obtain" with "demand" or "choose to require" or something?

~~~
quadrangle
I used to think nobody was that awful, e.g. nobody was anti-public-library,
until I met people who were.

It's totally understandable that the _goal_ is to eliminate the public domain
and all free/libre/open publications as a _means_ to the end of funding
proprietary stuff.

Say you have a business mowing people's lawns. If you were anti-social, you
might support outlawing friendly neighbors mowing others' lawns for free or
even outlaw people mowing their own lawns. You might even deceive yourself
with some pro-social ideas about how forcing all lawn-mowing to be paid-lawn-
mowing will end up with a world of better lawns, better economy, and all the
extended benefits of well-paid lawn-mowers besides yourself…

Similarly, if you're a news outlet, you'd be happy to see a price forced on
all your competitors. It's easier for you to charge your price if everyone
else has to also. Ironically, this could be argued from a pro-social
consideration of solidarity and funding journalism.

Of course, deeper pro-social inspection of the situation reveals that
sabotaging FLO works and public domain is an unacceptable tragedy that is
_not_ a respectable means to the end of funding journalism. But short-sighted
folks will try anything since they are freaking out about the _valid_ concern
over journalism funding in general.

------
ucaetano
We've seen it before:

[https://www.zdnet.com/article/the-google-news-effect-
spain-r...](https://www.zdnet.com/article/the-google-news-effect-spain-
reveals-the-winners-and-losers-from-a-link-tax/)

Everyone loses. And smaller, local, independent companies lose more.

------
drivingmenuts
IANAL, so can someone explain how we get from "inalienable right to obtain an
[sic] fair and proportionate remuneration for such uses" to "required to
charge a fee"?

Can one just say the fee is zero?

~~~
sgc
You could, but then you would be able to later sue and/or rescind the right to
use if it became popular. It is a right to undermine contracts after the fact,
which would be extremely stifling to publishing in general.

------
amelius
Why does it always seem as if such proposals are written by clueless people?

Can't we, people of HN, draft proposals collaboratively, perhaps with some
moderation system?

~~~
trumpeta
Can we even agree on such a proposal among ourselves?

I would like to see all copyright completely abolished, or at least reduced to
max 2 years or so. I imagine a lot of people will disagree with me.

~~~
beefield
I have lately been fond of the idea of not abolishing, copyright, but setting
a copyright tax that increases heavily over time. Say, first two years tax-
free, third year USD 1000 and doubling after that each year. Once copyright
holder fails to pay the tax, the copyrighted work becomes automatically public
domain. Orphan works would be solved as well with this.

(Admittably, I have not thought the international problems that this might
cause)

~~~
V-2
> _Once copyright holder fails to pay the tax, the copyrighted work becomes
> automatically public domain_

...or it gets bought by some more powerful entity - capable of paying the tax
- shortly before this happens. Leading to concentration of copyrights in the
hands of big corporations, to an extent even larger than under current system.

~~~
pwg
> or it gets bought by some more powerful entity - capable of paying the tax

The "doubling after that each year" provision of the original comment neatly
takes care of that. After a relatively small number of doublings the size of
the tax for the single item would be larger than the current US national debt.

The 'math' term for this is "exponential growth".

------
ars
I suspect they are doing this because otherwise no one would ever make use of
this provision. (No one would be that stupid.)

By forcing people to make use of this, their law actually gets used, which is
important because otherwise they look like they don't know what they're doing.

But the law of unintended consequences is going to cause serious problems if
they actually pass this law.

~~~
pmontra
Or, if the scenario they're thinking about is news aggregators: probably they
don't want to see an aggregator (let's say Google News) to force deals for
free licenses or the articles won't be included in its pages. Maybe they
didn't even think about other scenarios or they accept them as collateral
damage.

------
delecti
I wonder if that link tax provision isn't a door-in-the-face technique? It
just seems so blatantly ridiculous given how the internet works that I have
trouble believing anyone genuinely thought it was a good idea. Links almost by
definition aren't copyright worthy information, it makes no sense to charge
for them.

------
Trisell
It amazes me that the EU can be so forward thinking on Data Privacy. Yet so
draconian when it comes to copyright laws.

~~~
mkirklions
I dont know how to think of the EU.

I think the US government is sick, but the EU is new and needs to be a benefit
for it to survive.

My assumption is that they are entirely incentivized by niche groups in each
country that are pushing for reform to help their own goals. I dont see how
many of their policies are beneficial to the masses.

~~~
TheAceOfHearts
Why do you think the US government is sick? It's certainly not perfect, but
would you really prefer any previous or existing government over what we have?

~~~
mkirklions
Every country over a long enough time-span becomes sick and corrupt IMO.

I think when you are the world's only superpower, the worst of the world has
gotten involved in the US's affairs.

Prior to my birth, the president's role was limited and congress wasnt as paid
for by lobbyists.

~~~
TheAceOfHearts
I'm not an expert on history, but I don't think that holds true, at least
based on my limited knowledge. As I understand it, we've always had a
government partially beholden to certain large interests, but it's offset by
having to maintain some level of restraint on behalf the public interest.

If we look back at our government's founding, we have large interest groups
pushing to maintain horrible things such as slavery. But eventually we moved
past that.

I won't claim that things couldn't be better; we certainly have a lot of room
for improvement. But I don't think we're doing as poorly as many people would
like to believe.

------
mark-r
I don't understand how the proposed language leads to the conclusion. How does
an "inalienable right" to compensation turn into compulsory compensation?
Don't you have the ability to choose not to enforce the right?

~~~
a_humean
Not sure as maybe the term "inalienable right" has a different meaning, but I
feel like the article is making too strong a claim. An "inalienable right" is
usually something you cannot waive by contract, and so while you could promise
never to enforce a right you cannot legally bind yourself or the state from
enforcing it.

Basically it makes CC licenses more risky for distributors of such content as
there is always the risk that the previously waived right is now enforceable
on a whim.

However, maybe "inalienable right" in EU legal language means that you must
enforce it, which seems like quite a legal burden on the license issuer.

~~~
icebraining
The linked PDF with the proposal makes it clear:

 _" The digital use of press publications should be obligatory remunerated"_

So it's more than inalienable - the payment is _obligatory_.

------
zzzcpan
Seems like the consequences could go way beyond licensing and into
monopolization of news and press. They just can't help themselves but always
push to centralize control over media.

------
orcs
Hacker news is buggered then.

