Return to reform

Despite its best efforts to promote ‘future-proof’ EU copyright reforms, Mozilla, creator of the internet browser Firefox, is disappointed with the result

Mozilla has been an outspoken proponent of a free and open internet since it rose to prominence and challenged Microsoft’s Internet Explorer in 2002. More than 40,000 volunteer contributors wrote its flagship product, Firefox, and Mozilla believes in the open development that underpins open source products.

It’s for this reason that Mozilla recently released a petition to “reform copyright law in the EU,” and, in standing with its goals for a free and open internet, submitted responses to the European Commission’s consultations in an attempt to shape the future of copyright and step away from “outdated” legal framework of 2001.

Digital Single Market

In this year’s State of the Union speech, EU president Jean-Claude Juncker addressed the problems with current EU copyright laws, saying he wanted “journalists, publishers and authors to be paid fairly for their work, whether it is made in studios or living rooms, whether it is disseminated offline or online, whether it is published via a copying machine or commercially hyperlinked on the web”.

Juncker then unveiled the heavily anticipated copyright reforms to modernise copyright and “increase cultural diversity in Europe and content available online while bringing clearer rules for all online players”, as part of 16 initiatives to create the Digital Single Market.

The proposals were set out to achieve three main priorities, including better access to content online and across borders. To achieve this, the European Commission proposed a legal mechanism for broadcasters to more easily obtain the authorisation they need from rights holders to transmit programmes online in other EU member states.

The commission also asked member states to set up negotiation bodies to help reach licensing deals for video-on-demand platforms.

The second priority was to improve copyright rules on research and education, facilitate the inclusion of disabled people. The proposed reforms will allow educational establishments to use materials to illustrate teaching through digital tools and in online courses across borders.

The third priority is where much of the criticism against these proposals is directed. The reforms would reinforce the position of rights holders to negotiate and be remunerated for online exploitation of their content on video-sharing platforms such as YouTube. These platforms will now have an obligation to deploy effective means such as the ContentID system already employed by YouTube.

Further, the European Commission would implement a ‘link right’ to address issues of effected advertising revenues for newspapers, magazines and other press publications, similar to the rights afforded to movie producers and record producers.

Free and open internet

For Mozilla, the proposed changes to copyright from the European Commission were a far cry from their suggestions. Mozilla said that the proposal was “inadequate” and “thoroughly misses the goal to deliver a modern reform that would unlock creativity and innovation in the single market”.

Denelle Dixon-Thayer, chief legal and business officer at Mozilla, calls the reforms “more of a regression than the reform we need to support European businesses and internet users”.

Dixon-Thayer says that the proposals would lead to “an internet with less content creation, less sharing, fewer start-ups, and more limited access to information and knowledge”.

“We are disappointed that rather than harnessing the opportunities that technology offers, these proposals would bring us backwards,” Dixon-Thayer says.

According to Dixon-Thayer, the proposals will create an environment of “legal uncertainty” for online users and businesses that will block speech and innovation online, creating unnecessary barriers of entry for small businesses.

However, she conceded that the proposals aren’t entirely negative and provided “some exceptions for education and preservation of cultural heritage”.

But the new exceptions for text and data mining that would advance EU competitiveness and research is limited only to public interest research institutions and as such could “ultimately restrict, rather than accelerate, text and data mining to unlock research and innovation across sectors throughout Europe”.

She says: “These exceptions are far from sufficient. There are no exceptions for panorama, parody, or remixing.”

Further, Dixon-Thayer says that the proposals do not provide any flexibility to the copyright system, which, in Mozilla’s earlier calls for change, was a key focal point. In its suggestions for copyright reform, Mozilla asked that the commission ensure the proposals were “future-proof”.

Dixon-Thayer adds: “Technology advances at a rapid pace, and laws can’t always keep up. That’s why in order for our laws to remain relevant in five, 10 or even 20 years, we need to build in the necessary flexibility to ensure that we won’t have to go back to the drawing board every time a new innovative technology is developed.”

“We regret that provisions which would add needed flexibility to the copyright system—such as a flexible user clause like an open norm, fair dealing or fair use or a clearly defined alternative like Canada’s ‘UGC exception’ that would allow non-commercial transformations of works (such as memes, gifs and remixing)—have not been included.”

Reforms that don’t perform

Dixon-Thayer’s assertions of disappointment are even more evident when looking at Mozilla’s responses to the consultations, which argued that the root of the internet’s socioeconomic benefits were its “open horizontal architecture” that allows for anyone to share their views and knowledge on an unprecedented scale. Mozilla describes the reforms as a “barrier to entry to a great global conversation that would not only have been detrimental to the internet’s development had it been enacted in the past, but it would curtail and significantly stifle future uses of this medium—both from the perspective of internet users and of small publishing businesses”.

Dixon-Thayer says: “Copyright law is, ostensibly, designed and intended to advance a range of beneficial goals, such as promoting the arts, growing the economy, and making progress in scientific endeavour.”

“Maximalist protection policies and draconian enforcement benefit the few and not the many, hindering rather than helping these policy goals. For copyright law to enhance creativity, innovation and competition, and ultimately to benefit the public good, we must recognise the plurality and complexity of actors in the digital ecosystem, who can be at once IP rights holders, creators and consumers.”

“Mozilla is an example of this complex rights holder stakeholder. As a technology company, a non-profit foundation, and a global community, we hold copyright, trademarks, and other exclusive rights. Yet, in the pursuit of our mission, we’ve also championed open license to share our works with others. Through this, we see an opportunity to harness intellectual property to promote openness, competition and participation in the internet economy.”

While the proposals are concerning for companies such as Mozilla, changes may be made later on down the line and tweaking can be achieved. Mozilla says that it is up to the European Parliament and EU member states to look at the proposals and make amendments—corporations such as Mozilla will no longer have an official capacity to contribute to the debate.

Looking to the future

Despite the challenges, Mozilla’s claims endure and it has, in fact, continued its fight against the reforms with a tongue in cheek movement that asks people to send a “rebellious selfie” to the European Parliament.

The blog post on Mozilla’s website reads: “We are asking everyone reading this post to take a rebellious selfie and send that doctored snapshot to EU Parliament. Seem ridiculous? So is an outdated law that bans taking and sharing selfies in front of the Eiffel Tower at night in Paris, or in front of the Little Mermaid in Copenhagen.”

“Of course, no one is actually going to jail for subversive selfies. But the technical illegality of such a basic online act underscore the grave shortcoming in the EU’s latest proposal on copyright reform.”

It is clear that Mozilla will not give up on its mission. Dixon-Thayer says that Mozilla is looking forward to working with EU institutions to “forge a modern copyright reform that adequately reflects how content, culture, and knowledge is accessed, remixed, and shared in today’s digital world”.

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