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Raegan MacDonald is Senior Policy Manager and EU Principal at the software organisation Mozilla, home of the free Firefox browser and Thunderbird email client. She helps guide the development of the organisation’s global Internet policy agenda, with primary responsibility for formulating strategy and achieving policy impact within the EU. Before joining Mozilla, MacDonald was European Policy Manager at Access Now, where she focussed on privacy, data protection, and network neutrality.

GM: Could you please introduce Mozilla for those who may be unfamiliar with its work?

RM: Mozilla is an open source tech company that builds open source products. We are driven by a mission to ensure that the Internet remains a publicly-available resource that’s open to all. We are a hybrid company in the sense that we are a corporation, but we are also a non-profit foundation. So we build products but we also do a lot of grass roots outreach and community building to work with others around Internet health issues like Web literacy, digital inclusion, decentralisation, privacy, and security.

GM: Given that background, what is Mozilla’s interest in copyright issues?

RM: In the EU we think there is a very interesting opportunity to craft and update a legal framework that fosters innovation and creativity. From our point of view, we certainly see an important role for copyright. Mozilla as an organisation also has exclusive rights, so we consider ourselves a rights holder, but we also see the value in open source products. We want to make sure that there is an adequate balance [in] copyright law with enough flexibility for people to create and innovate.

In the EU copyright reform, we really focus on three or four major areas. One is on the exceptions. Even before we saw the reform, we were focussed on getting the European Commission to harmonise exceptions, because there’s a huge problem right now.

Copyright exceptions are a limitation on copyright protection that usually allows for non-commercial or certain types of issues that are deemed to be important for the public interest. One of which is education. Another exception that is very important is quotation – that you are allowed to quote from pieces of copyrighted works. Another important one is satire, that you have the right to make a parody, without having to ask permission from the rights holders. Those are examples of exceptions, [and] in the EU they are not harmonised. So we have a kind of broken copyright market. From the user’s perspective, from the curator’s perspective, it’s not really clear what rights they’re allowed.

When you put that into the Internet context it’s very complicated, because the Internet doesn’t have borders. The copyright directive is under [the umbrella of] this very ambitious project of the European Commission called the Digital Single Market, and this is something that Mozilla very much supports. It wants to make a single European market that is digital, so individuals, creators, small companies – particularly start-ups – would have legal certainty and be able to scale easier. From a user’s perspective their rights would be very predictable, they would have the same rights in Italy as in Slovenia. That makes sense for an online context.

We’re happy that the Commission is after nearly 15 years reforming this copyright framework – it’s sorely out of date. The original copyright directive was passed at a time when we were using VHS and CDs, so there is a really big need to bring copyright into the 21st century. Unfortunately the directive is very backwards looking – it’s actually copyright for the 20th century. It lacks ambition in terms of the exceptions, and it also proposes some very dangerous extensions of copyright.

We are in a digital transformation right now, a lot of business models are changing. The way that people consume content, the way that people access and purchase content, the way they remix it and add their personal touch and share it with the world, has really changed in the digital context. That gives us lots of opportunities, because individuals can be creators much more easily – they can contribute and express themselves in a more interesting way.

We are also seeing a lot more independent artists emerging, because they are learning how to harness the power of these different platforms to build a better relationships with their fan base and to be empowered to take control of their careers, so there are a lot of opportunities.

At the same time there are a lot of challenges. Some of the impetus behind Article 11, the neighbouring right, is that the dominant business model of the Internet, which is based on advertising and tracking, isn’t providing the reliable income that the news industry has relied on [in the past] and they want more copyright.

We understand that advertising as a dominant business model causes a lot of issues, and we’re certainly interested in figuring out how to reform that, but at the same time, more copyright is not the answer. There has been no evidence proposed by the Commission that a neighbouring right or an extension of copyright to snippets would be beneficial to the online ecosystem in the sense of ensuring media plurality, ensuring that users can still access content freely, and actually to benefit publishers themselves.

In fact, the evidence points in the opposite direction. Evidence from implementations in Spain, in Germany, and other attempted implementations in other markets in the EU including Belgium, have shown a complete and utter failure here. So we don’t understand the logic behind the European Commission in proposing a failed model that has been attempted in different and large markets across the EU, how multiplying that by 28 or 27 would actually make it work.

GM: As well as Article 11, another proposal in the copyright directive that has caused concern is Article 13: what are your views on that?

RM: Article 13 is one of the most dangerous copyright proposals [in the new directive], and it’s dangerous in a lot of ways. One is it’s extremely broad. It would have massive, potentially unintended, consequences on the health of the Internet, but it’s also very difficult to understand. It’s very confusing language, but basically what Article 13 does is three things.

One, it essentially obliterates the liability safe harbours for intermediaries, as established in the e-commerce directive. That provision in particular has been incredibly important for the growth of electronic commerce, and for freedom of expression online in the EU.

The second thing is it would mandate agreements in the form – we assume – of licences, if a platform wants to host copyrighted content. That is problematic because it is mandating a particular type of business model. There’s nothing wrong with licences, but we think in a digital context it’s more interesting to let a bunch of business models happen, and see what works. From the user perspective it’s good to have choice and options, and not mandate only licences.

The third thing is oblige these platforms to implement filters. After they become liable for the actions of their users, after they negotiate some kind of rights clearances in the form of licences with the rights holders, then they have to make sure that no infringing copyright is found on their platform. So they have to craft filtering technology that would be specific to their particular platform.

This is problematic on so many levels. One, from a freedom of expression perspective, it’s hard for us to imagine how this is in line with the [EU] Charter of Fundamental Rights. Secondly, also from a freedom of expression point of view, we’ve already seen what happens in a context where platforms are incentivised to take content down – they take it down. Platforms, particularly small companies, may not have an army of lawyers, [so] they want to minimise legal risk. If we create a legal framework whereby the operation of their online service would expose them to legal liability, then they will do everything to avoid that. We’ve seen it in the United States, we’ve seen it in Canada – everywhere.

So we would rather have a framework that incentivises content to stay up. And that’s what the e-commerce directive does, and that’s what the notice and action framework does. The platform is neutral, until they become aware of an infringement. Then they take action – they take it down, they block it.

By the way, it’s not just about video platforms. What Article 13 is actually asking for is for all copyright [to be filtered] – not just visual, not just audiovisual, not just music, not just films – and all intermediary liabilities, so all platforms. We’re talking about Amazon’s cloud services, eBay’s services, Wikipedia, which is full of copyrighted content. This problem is magnified in the EU, because we don’t have harmonised exceptions for copyright. We don’t have any type of fair use, or fair dealing, or flexible exception framework. So we know that there would be a lot of unintended consequences for perfectly legal content.

GM: What are Mozilla’s views on the text and data mining proposals in the directive?

RM: Text and data mining is an important exception. It’s debatable whether or not in the EU we actually needed an exception, but here it is. The reason why we support text and data mining is because in a big data world it is very important to be able to quickly read and mine datasets in order to understand them, in order to derive meaning. This shouldn’t just be for some companies, or some major organisations, this is supposed to be for everyone. So our issues with the text and data mining exception is that it is far too restrictive – we want this exception to apply to all beneficiaries.

We understand that now in today’s world, journalists, for instance, have been doing a lot of work with data-mining technologies, they should be able to do data journalism. Advocacy organisations should be able to have access to these tools, and freely mine data. At the moment it only applies to research organisations, so if you are officially affiliated with a university that acquires the necessary licences in order to access those documents, then you can mine them. That for us doesn’t really translate into something that would be useful for European citizens, for European startups, for growth and innovation in the single market. The ability to mine is like the ability to read.

We’re not talking about anyone is allowed to mine anything, and you can download whatever you want licitly or illicitly. We’re talking about lawfully acquired works, and being able to apply simple software that quickly would be able to mine that data.

So we would like that to be extended to more beneficiaries. A really common pushback on that is that it’s for non-commercial purposes. [EU institutions are] concerned that this exception is crafted to benefit only the big companies that use text and data mining – Apple and Google. But I don’t really understand that argument, because they just do it everywhere else. They can mine all of the data they want in the United States, Australia, China; it seems to be only in the EU that there is a restriction for that. So I think the ultimate question is: if we want to extend the beneficiaries of text and data mining, does the EU want to let EU companies text and data mine, does the EU want to let EU citizens, journalists, independent researchers, scientists, anyone [to carry out text and data mining], do they want [to give] the EU single market that opportunity?

GM: What about the panorama exception?

RM: When I first started at Mozilla, and I started working on copyright, I thought: oh, panorama, this is like the lowest-hanging fruit in the copyright reform. It is a perfect example of how copyright law is out of step with today’s technological ubiquitous environment.

Not having an exception for the right to panorama makes sense in an analogue world, because that was crafted in order to protect businesses that were taking pictures and selling them – like postcard companies. In today’s world, where everyone takes pictures, everyone has a phone in their hands, most people have more than one device, and to not be able to take a picture of you in front of the Eiffel Tower at night, and share it on Instagram, and [doing] that making you a copyright criminal, is absurd. This is causing a lot of problems, for open platforms, non-commercial platforms, like Wikipedia, who are actually not able to share [photos of] publicly-paid for buildings that are in a public space on a public, non-commercial platform that is designed to give knowledge to the world.

That freedom of panorama was excluded from the directive underlines the low level of ambition of this commission to truly reform copyright for the 21st century.

GM: How would Mozilla like to see copyright developing in the future?

RM: We would really hope that copyright regains its balance. We think back to what it is actually supposed to be for. To protect creators, yes, to remunerate artists, yes, but ultimately it was designed to be a system of incentives. To incentivise creation, to incentivise the development of scientific knowledge, of some kind of societal progress that ultimately benefits the public good. We think that in a lot of areas, an over-extension of copyright is not beneficial to innovation, or to creativity, particularly in the digital context.

Our Firefox browser is built on open source code, anyone is free to take that code and to make your own browser. You can even make your own browser based on Firefox code and profit from it. From our point of view, that’s what innovation is – you take an old idea, you make a new one and that contributes to society.

If the Digital Single Market really is about working with start-ups to get them to scale, then OK, let’s build that. We don’t think that’s going to be by regulating for a handful of corporations that are looking to the twentieth century, and trying to re-instate business models that no longer work in the digital context. We want to look forward and solve those problems in an open way.