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What is the Copyright Directive about?

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Digital technologies have transformed the way creative content is produced, distributed and accessed. The new Directive brings the copyright rules up to date with those changes and the way users access content online. For example, copyright exceptions exist in the areas of education, research and preservation of cultural heritage, but the digital uses were not anticipated by the current rules, which dated back to 2001. Therefore, this limited the possibilities for users (e.g. educational establishments, research institutions, libraries) to benefit from the potential of new technologies. In addition, the current EU copyright framework does not address the problems that emerged in the recent years in relation to the distribution of value in the online environment.

The Directive aims to create a comprehensive framework where copyrighted material, copyright holders, publishers, providers and users can all benefit from clearer rules, adapted to the digital era.

In order to achieve this goal, the Copyright Directive focuses on three main objectives:

Wider opportunities to use copyrighted material for education, research and preservation of cultural heritage: the exceptions allowing these uses have been modernised and adapted to the technological changes, to allow uses online and across borders.

More cross-border and online access for citizens to copyright-protected content: The Directive will contribute to increase the availability of audiovisual works on video-on-demand platforms, facilitate the digitalisation and dissemination of works that are out of commerce and will make sure that all users are able to circulate online with full legal certainty copies of works of art that are in the public domain.

Fairer rules for a copyright marketplace which will function better and will stimulate the creation of high-quality content: a new right for press publishers in relation to the use of their content by online service providers, a reinforced position of right holders to negotiate and be remunerated for the online exploitation of their content by user-uploaded content platforms and transparency rules related to the remuneration of authors and performers.

How will the new rules tackle the so-called ‘value gap’ between the creators and the online platforms?

One of the objectives of the Directive is to reinforce the position of creators and right holders to negotiate and be remunerated for the online use of their content by certain user-uploaded content platforms.

According to the text adopted today by the European Parliament, the platforms covered by the new rules are considered to be carrying out acts covered by copyright (i.e. performing acts of communication or making available to the public) for which they need to obtain an authorisation from the right holders concerned.

In situations where there are no licensing agreements concluded with right holders, the platforms will need to take certain actions if they want to avoid liability. In particular, they will need to (i) make best efforts to obtain an authorisation, (ii) make best efforts to ensure the unavailability of unauthorised content regarding which right holders have provided necessary and relevant information and (iii) act expeditiously to remove any unauthorised content following a notice received and make also their best efforts to prevent future uploads.

What will be the special regime for smaller enterprises foreseen in relation to the value gap?

New small platforms will benefit from a lighter regime in case there is no authorisation granted by right holders.

This concerns online service providers which have less than three years of existence in the Union and which have a turnover of less than 10 million euros and have less than 5 million monthly users. In order to avoid liability for unauthorised works, these new small companies will only have to prove that they have made their best efforts to obtain an authorisation and that they have acted expeditiously to remove the unauthorised works notified by right holders from their platform.

However, when the audience of these small companies is higher than 5 million monthly unique viewers, they will also have to prove that they have made their best efforts to ensure that works that have been notified by right holders do not reappear on the platform at a later stage. 

How does the Directive ensure a fair remuneration of authors and performers?

The Commission’s proposal aimed to increase transparency and balance in the contractual relations between content creators (authors and performers) and their producers and publishers.

The final Directive contains five different measures to strengthen the position of authors and performers:

A principle of appropriate and proportionate remuneration for authors and performers;

A transparency obligation to help authors and performers have access to more information about the exploitation of their works and performances;

A contract adjustment mechanism to allow authors and performers to obtain a fair share when the remuneration originally agreed becomes disproportionately low compared to the success of their work or performance;

A mechanism for the revocation of rights allowing creators to take back their rights when their works are not being exploited; and

A dispute resolution procedure for authors and performers. 

How will the new Directive support the press and quality journalism?

The new press publishers’ right will apply to online uses of press publications by information society services providers, such as news aggregators or media monitoring services. The objective of this right is to help the press publishing industry benefit from a fairer market place and to promote the best possible environment to develop innovative business models. The new right strengthens the bargaining position of press publishers when they negotiate the use of their content by online services.

Journalists, as authors of the contributions, i.e. the articles, in press publications, are essential in the press sector for providing reliable and quality journalistic content. By facilitating the online exploitation of press publications and making the enforcement of rights more efficient, the Directive will have a positive impact on them. And, in order to make sure that the journalists will benefit economically from the press publishers’ right, the Directive provides that they will receive an appropriate share of the revenues generated by it. By ensuring the sustainability of the press sector, the new right will foster plural, independent and high-quality media, which are essential for the freedom of expression and the right to information in our democratic society.

Does the new press publishers’ right also cover parts of press publications (so-called ‘snippets’)?

According to the text voted today by the European Parliament, the use of individual words and very short extracts of press publications does not fall within the scope of the new right. This means that information society service providers will remain free to use such parts of a press publication, without requiring an authorisation by press publishers. When assessing what very short extracts are, the impact on the effectiveness of the new right will be taken into account.

Does the new press publishers’ right affect individual users?

The Directive does not target individual users, but online uses of press publications by large online platforms and services, such as news aggregators. Internet users will continue to be able to share content on social media and link to websites and newspapers (acts of hyperlinking), just as it is the case today.

Moreover, the acts of hyperlinking and the re-use of single words or very short extracts by online platforms and services will be excluded from the scope of the new right granted to press publishers of press publications.

How do the new copyright rules protect users and their freedom online?

The Copyright Directive,voted today by the European Parliament, protects freedom of expression, a core value of the European Union. It sets strong safeguards for users, making clear that everywhere in Europe the use of existing works for purposes of quotation, criticism, review, caricature as well as parody are explicitly allowed. This means that memes and similar parody creations can be used freely. The interests of the users are also preserved through effective mechanisms to swiftly contest any unjustified removal of their content by the platforms.

The new provisions on user-uploaded platforms will facilitate the conclusion of licences between commercial players and will contribute to improve the remuneration of creators.

To take one example: the new rules applicable to the use of press publications online will only apply to commercial services such as news aggregators, not to users. This means that internet users will continue to be able to share such content on social media and link to online newspapers.

Will the Directive impose uploading filters online?

No. The new rules do not impose uploading of filters nor do they require user-uploaded platforms to apply any specific technology to recognise illegal content. Under the new rules, certain online platforms will be required to conclude licensing agreements with right holders – for example, music or film producers – for the use of music, videos or other copyright protected content. If licences are not concluded, these platforms will have to make their best efforts to ensure that content not authorised by the right holders is not available on their website. The “best effort” obligation does not prescribe any specific means or technology.

Will the Copyright Directive prevent users from expressing themselves on in the same way as now? Will memes and GIFs be banned?

No. Uploading memes and other content generated by users for purposes of quotation, criticism, review, caricature, parody and pastiche (like GIFs or similar) will be specifically allowed. Users will be able to continue to upload such content online, but the new rules will bring clarity in this respect and will apply in all EU Member States.

Until now, copyright exceptions allowing these uses were only optional and Member States were free not to implement them. Under the Copyright Directive, this will no longer be the case: Member States will be obliged to allow these uses. This is a particularly important step for the freedom of expression online.

What are the other exceptions to copyright rules included in the Directive?

Exceptions or limitations to an exclusive right allow the beneficiary of the exception – an individual or an institution – to use protected content without the prior authorisation from right holders. Exceptions and limitations exist to facilitate the use of copyrighted content in certain circumstances and achieve specific public policy objectives such as education and research. The new Directive brings the EU framework on exceptions up to speed with digital uses in certain areas like education, research and cultural heritage. It introduces four mandatory exceptions for:

  • Text and data mining (TDM) for research purposes;
  • A general TDM exception for other purposes;
  • Teaching and educational purposes;
  • Preservation of cultural heritage.

The aim is to open up the possibilities that digital technologies offer to research, data analytics, education and heritage preservation, also taking into account online and cross-border uses of copyright-protected material. 

How will the directive facilitate the access to more content protected by copyright for education, culture, and research purposes?

The copyright exception for text and data mining will simplify the copyright clearance burden for universities and research organisation. It will allow them to use automated technologies to analyse large sets of data for scientific purposes in all legal certainty, including when they engage in public-private partnerships. This will support scientific endeavours and innovation, e.g. helping find cures for diseases or new ways to address climate change.

Complementary to this, an additional exception for text and data mining, for other users will cover text and data mining going beyond the area of research. This exception will contribute to the development of data analytics and artificial intelligence in the EU.

The new teaching exception for educational establishments and teachers covers digital cross-border uses of content protected by copyright for the purposes of illustration for teaching, including online. This will for example ensure that educational establishments can make available, in full legal certainty, teaching content to distance students in other Member States through their secure electronic environment, e.g. a university’s intranet or a school’s virtual learning environment.

The new preservation exception will allow libraries and other cultural heritage institutions (e.g. archives, museums) to make copies of the works in their collections, taking advantage of new digital preservation techniques. This new rule will make it possible to digitise the EU cultural heritage to preserve it. This will benefit the access to our culture heritage by the future generations. 

What is the new provision on public domain of works of art?

When a work of art is not protected by copyright anymore, for instance an old painting, it falls into the public domain. In that situation, everybody should be free to make, use and share copies of that work. This is not always the case today, as some Member States provide protection to copies of those works of art.

The new Directive will make sure that nobody can claim copyright protection on works in the field of the visual arts which have already fallen into the public domain. Thanks to this provision, all users will be able to disseminate online with full legal certainty copies of works of art in the public domain. For instance, anybody will be able to copy, use and share online photos of paintings, sculptures and works of art in the public domain when they find them in the internet and reuse them, including for commercial purposes or to upload them in Wikipedia. 

What is the provision of the Out-of-commerce works about?

The Directive introduces a new licensing mechanism for out-of-commerce works:books, films and other works that are still protected by copyright but cannot be found commercially anymore. This will make it much easier for cultural heritage institutions, like archives and museums, to obtain the necessary licences to disseminate to the public, notably online and across borders, the heritage held in their collections. This system makes it much easier for cultural heritage institutions to obtain licences negotiated with the collective management organisations representing the relevant right holders.

The new rules also provide for a new mandatory exception to copyright in case there is no representative collective management organisation representing the right holders in a certain field, and therefore cultural heritage institutions do not have a counterpart to negotiate a licence with. This so-called “fall-back” exception allows cultural heritage institutions to make the out-of-commerce works available on non-commercial websites. 

What is the new provision on collective licensing with an extended effect about?

The new provision on collective licensing with an extended effect enables Member States to allow collective management organisations to conclude licences covering rights of non-members, under certain conditions. This mechanism facilitates the clearance of rights in areas where otherwise individual licensing may be too burdensome for users. The provision includes a number of safeguards that protect the interests of right holders. 

What is the negotiation mechanism for video-on-demand platforms? How will the new rules work?

Despite the growing popularity of on-demand services (like Netflix, Amazon Video, Universcine, Filmin, Maxdome, ChiliTV) relatively few EU audiovisual works are available on video-on-demand (VoD) platforms. Less than half (47%) of EU films released in cinemas between 2005 and 2014 are available on at least one VoD service. Also, EU audiovisual works are often not available on platforms outside their home country; around half of EU films are available in only one country and 80% of EU films are available in three European countries or less on VoD services. This is partly explained by difficulties, including contractual ones, in acquiring the rights.

The Directive voted today by the European Parliament provides a new negotiation mechanism to support the availability, visibility and circulation of audiovisual works, in particular European. It will make the process of reaching contractual agreements smoother and unblock difficulties related to the licensing of the necessary rights to make available films and series on VoD platforms. More licenses means that more European audiovisual works will be available in VoD platforms and will have also a positive effect on the type and variety of works made available on VoD platforms.

What are the next steps?

The text adopted today by the European Parliament will now need to be formally endorsed by the Council of the European Union in the coming weeks. Once published on the Official Journal of the EU, Member States will have 24 months to transpose the new rules into their national legislation.

Science & Technology

Is your security compromised due to “Spy software” know how

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Spy software is often referred to as spyware is a set of programs that gives access to user/ administrators to track or monitor anyone’s smart devices (such as desktop, laptop, or smart phone) from anywhere across the globe.

Spyware is a threat, not only to businesses but individual users as well, since it can steal sensitive information and harm anyone’s network. It is controversial due to its frequent violation to end user’s privacy. It can attack user’s device, steal sensitive data (such as bank account or credit card information, or personal identity) or web data and share it with data firms, advertisers, or external users.

There are numerous online spyware designed for almost no cost, whose ultimate goal is to track and sell users data. Some spy software can install additional software and change the settings on user’s device, which could be difficult to identify.

Below are four main types of spyware, each has its unique features to track and record users activity:

Tracking cookies: These are the most common type of trackers, these monitor the user’s internet usage activities, such as searches, downloads, and history, for advertising and selling purposes.

System monitors: These spy software records everything on your device from emails, keystrokes, visited websites, chat-room dialogues, and much more.

Adware: This spyware is used for marketing purpose, it tracks users downloads and browser history, and suggests or displays the same or related products, this can often lead to slow device.

Trojan: This spyware is the most malicious software. It can be used to track sensitive information such as bank information or identification numbers.

Spyware can attack any operating system such as windows, android, or Apple. Windows operating systems are more prone to attack, but in past few years Apple’s operating systems are also becoming vulnerable to attacks.

According to a recent investigation by the Guardian and 16 other media organizations, found that there is a widespread and continuous abuse of NSO’s hacking spyware Pegasus, on Government officials, human rights activists, lawyers and journalists worldwide which was only intended to use against terrorists and criminals.

The research, conducted by the Pegasus technical partner Amnesty’s Security Lab, found traces of the Pegasus activity on 37 out of the 67 examined phones. Out of 37 phones, 34 were iPhones, and 23 showed signs of a Pegasus infection, while remaining 11 showed signs of attempted infection. However, only three out of 15 Android phones were infected by Pegasus software.

Attacks like the Pegasus might have a short shelf life, and are used to target specific individuals. But evidences from past have proved that attackers target large group of people and are often successful.

Below are the most common ways devices can become infected with spyware:

  • Downloading software or apps from unreliable sources or unofficial app publishers
  • Accepting cookies or pop-up without reading
  • Downloading or watching online pirated media content
  • Opening attachments from unfamiliar senders

Spyware can be extremely unsafe if you have been infected. Its damage can range from short term device issue (such as slow system, system crashing, or overheating device) to long-term financial threat.

Here’s what you can do protect your devices from spyware:

Reliable antivirus software: Firstly look for security solutions available on internet (some are available for free) and enable the antivirus software. If your system or device is already infected with virus, check out for security providers offering spyware identification and removal.

-For instance, you can install a toolkit (the Mobile Verification Tool or the MVT) provided by Amnesty International. This toolkit will alert you with presence of the Pegasus Spyware on your device.

-The toolkit scans the backup file of your device for any evidence of infection. It works on both Apple and Android operating systems, but is more accurate for Apple operating system.

-You can also download and run Norton Power Eraser a free virus removal tool.

Update your system regularly: Set up an update which runs automatically. Such automatic updates can not only block hackers from viewing your web or device activity, but can also eliminate software errors.

Be vigilant of cookies compliance: Cookies that records/ tracks users browsing habits and personally identifiable information (PII) are commonly known as adware spyware. Accept cookies only from reliable sites or download a cookie blocker.

Strong authentication passwords: Try to enable Multi-factor Authentication (MFA) wherever possible, or if not possible create different password for all accounts. Change your password for each account after a certain period of time.

-Password breaches can still occur with these precautions. In such case change your password immediately.

Be cautious of free software: Read the terms and conditions on software licenses, before accepting. Free software might be unlimited but, your data could be recorded with those free software’s.

Do not open any files from unknown or suspicious account: Do not open any email attachments or text on mobile from a suspicious, unknown, or untrustworthy source/number.

Conclusion:

Spyware could be extremely dangerous, however it can be prevented and removed by being precautious and using a trustworthy antivirus tool. Next gen technologies can also help in checking and removing malicious content. For instance, Artificial intelligence could aid the organizations identify malicious software, and frequently update its algorithms of patterns similar to predict future malware attacks.

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Science & Technology

Implementation of virtual reality and the effects in cognitive warfare

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Photo: Lux Interaction/Unsplash

With the increasing use of new technologies in warfare situations, virtual reality presents an opportunity for the domain of cognitive warfare. Nowadays, cognitive skills are treated equally as their physical counterparts, seeking to standardize new innovative techniques. Virtual reality (VR) can be used as a tool that can increase the cognitive capabilities of soldiers. As it is understandable in today’s terms, VR impacts the brain directly. That means that our visual organs (eyes) see one object or one surrounding area, but brain cells perceive and react to that differently. VR has been used extensively in new teaching methods because of the increased probability of improving the memory and learning capabilities of students.

Besides its theoretical teaching approach and improvement of learning, VR can be used systematically towards more practical skills. In medicine for example students can have a full medicine lesson on a virtual human being seeing the body projected in 3D, revolutionizing the whole field of medicine. If that can be used in the medical field, theoretically it will be possible to be used in combat situations, projecting a specific battlefield in VR, increasing the chances of successful engagement, and reducing the chance of casualties. Knowing your terrain is equally important as knowing your adversary.

The use of VR will also allow us to experience new domains relating to the physical health of a person. It is argued that VR might provide us with the ability to effectively control pain management. Since VR can stimulate visual senses, then it would be safe to say that this approach can have higher effectiveness in treating chronic pain, depression, or even PTSD. The idea behind this usage is that the brain itself is already powerful enough, yet sometimes when pain overwhelms us we tend to lose effectiveness on some of our senses, such as the visual sense. An agonizing pain can blurry our vision, something that we cannot control; unless of course theoretically, we use VR. The process can consist of different sounds and visual aids that can trick the mind into thinking that it is somewhere that might be the polar opposite of where it is. Technically speaking, the mind would be able to do that simply because it works as a powerful computer, where our pain receptors can override and actually make us think that we are not in such terrible pain.

Although the benefits of VR could be useful for our health we would still need to deal with problems that concern our health when we use a VR set.  It is possible that the brain can get overloaded with new information and the new virtual environments. VR poses some problems to some people, regarding the loss of the real environment and creating feelings of nausea or extreme headaches. As a result, new techniques from cognitive psychologists have emerged to provide a solution to the problem. New technologies have appeared that can desaturate colors towards the edge of the headset in order to limit the probability of visual confusion. Besides that, research shows that even the implementation of a virtual nose when someone wears a VR headset can prevent motion sickness, something that our brain does already in reality.

However, when it comes to combatants and the implementation of VR in soldiers, one must think of maybe more effective and fast solutions to eliminate the problems that concern the confusion of the brain. Usage of specific pharmaceuticals might be the key. One example could be Modafinil which has been prescribed in the U.S. since 1998 to treat sleep-related conditions. Researchers believe it can produce the same effects as caffeine. With that being said, the University of Oxford analyzed 24 studies, where participants were asked to complete complex assignments after taking Modafinil and found out that those who took the drug were more accurate, which suggests that it may affect higher cognitive functions.

Although some of its long-term effects are yet to be studied, Modafinil is by far the safest drug that can be used in cognitive situations. Theoretically speaking, if a long exposure to VR can cause headaches and an inability to concentrate, then an appropriate dose of Modafinil can counter the effects of VR. It can be more suitable and useful to use on soldiers, whose cognitive skills are better than civilians, to test the full effect of a mix of virtual technology and pharmaceuticals. VR can be a significant military component and a simulation training program. It can provide new cognitive experiences based on foreign and unknown terrains that might be difficult to be approached in real life. New opportunities arise every day with the technologies, and if anyone wanted to take a significant advantage over adversaries in the cognitive warfare field, then VR would provide a useful tool for military decision-making.

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Science & Technology

Vaccine Equity and Beyond: Intellectual Property Rights Face a Crucial Test

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research coronavirus

The debate over intellectual property rights (IPRs), particularly patents, and access to medicine is not new. IPRs are considered to drive innovation by protecting the results of investment-intensive R&D, yet arguably also foster inequitable access to affordable medicines.

In a global public health emergency such as the COVID-19 pandemic, where countries face acute shortages of life-saving vaccines, should public health be prioritized over economic gain and the international trade rules designed to protect IPRs?

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), to which all 164 member states of the World Trade Organization (WTO) are a party, establish minimum standards for protecting different forms of IPRs. 

In October 2020, India and South Africa – countries with strong generic drug manufacturing infrastructure – invoked WTO rules to seek a temporary waiver of IPRs (patents, copyrights, trade secrets, and industrial designs) on equipment, drugs, and vaccines related to the “prevention, containment or treatment of COVID-19.” A waiver would mean that countries could locally produce equipment and vaccines without permission from holders of IPRs. This step would serve to eliminate the monopolistic nature of IPRs that give exclusive rights to the holder of IPRs and enable them to impose procedural licensing constraints.

Brazil, Japan, the European Union (EU), and the United States (US) initially rejected the waiver proposal. That stance changed with the rise of new COVID-19 mutations and the associated increase in deaths, with several countries facing a public health crisis due to vaccine supply shortages. The position of many states began shifting in favor of the India-South Africa proposal, which now has the backing of 62 WTO members, with the US declaring support for the intent of the temporary waiver to secure “better access, more manufacturing capability, more shots in arms.” Several international bodies, the World Health Organization (WHO), and the UN Committee on Economic, Social and Cultural Rights have voiced support.

Some countries disagree about the specific IPRs to be waived or the mechanisms by which IPRs should be made available. The EU submitted a proposal to use TRIPS flexibilities such as compulsory licensing, while others advocate for voluntary licensing. The TRIPS Council is conducting meetings to prepare an amended proposal to the General Council (the WTO’s highest-level decision-making body in Geneva) by the end of July 2021.

The crisis in India illustrates the urgency of the situation. India produces and supplies Covishield, licensed by AstraZeneca; and Covaxin, which is yet to be included on the WHO’s Emergency Use Listing (EUL). Due to the devastating public health crisis, India halted its export of vaccines and caused a disruption in the global vaccine supply, even to the COVID-19 Vaccines Global Access (COVAX) program. In the meantime, the world’s poorest nations lack sufficient, critical vaccine supplies.

International law recognizes some flexibility in public health emergencies. An example would be the Doha Declaration on TRIPS and Public Health in 2001, which, while maintaining the commitments, stresses the need for TRIPS to be part of the wider national and international action to address public health problems. Consistent with that, the body of international human rights law, including the International Covenant on Economic, Social and Cultural Rights (ICESCR), protects the right to the highest attainable standard of health.

But as we race against time, the current IPR framework may not allow for the swift response required. It is the rigorous requirements before a vaccine is considered safe to use under Emergency Use Authorizations and procedural delays which illuminate why IPR waivers on already approved vaccines are needed. Capitalizing on the EUL’s approved vaccines that have proven efficacy to date and easing IPR restrictions will aid in the timely supply and access of vaccines.

A TRIPS waiver may not solve the global vaccine shortage. In fact, some argue that the shortages are not an inherent flaw in the IP regime, considering other supply chain disruptions that persist, such as the ones disrupting microchips, pipette tips, and furniture. However, given that patent licensing gives a company a monopoly on vaccine commercialization, other companies with manufacturing capacity cannot produce the vaccine to scale up production and meet supply demands.

Neither does a temporary waiver mean that pharmaceutical companies cannot monetize their work. States should work with pharmaceuticals in setting up compensation and insurance schemes to ensure adequate remuneration.

At the College of Law at Hamad Bin Khalifa University, our aim is to address today’s legal challenges with a future-oriented view. We see COVID-19 as a case study in how we respond to imminent and existential threats. As global warming alters the balance of our ecosystem, threats will cascade in a way that is hard to predict. When unpredictable health emergencies emerge, it will be human ingenuity that helps us overcome them. Even the global IP regime, as a legal system that regulates ideas, is being tested, and should be agile enough to respond in time, like the scientists who sprang into action and worked tirelessly to develop the vaccines that will soon bring back a semblance of normal life as we know it.

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