It is still time to reach a balanced solution for a fair value sharing in a digital environment
On O5 July 2018 the European Parliament voted against the negotiation proposed by the Legal Affairs Committee, adopted on 20 June 2018, for the EU Copyright Directive proposal. Â CEPIC regrets this rejection following four years of tireless work with EU institutions but will continue to work towards a balanced solution for a fair online marketplace for the creative sector and against online piracy.
Giving a free pass to platforms to override copyright kills creativity. Copyright is not against freedom of expression and innovation but, to the contrary creativity is the best nexus of cultural diversity and freedom of expression.
CEPIC represents hundreds of picture agencies and hundreds of thousands of photographers. CEPICâs members have been digitizing visual content from the advent of the Internet. They license the resulting digital asset for all kinds of commercial uses, to newspapers, magazines, advertising, broadcasters, off and on-line, etc.
Images are widely shared online via search engines, social media and other aggregators and have highly contributed to make the Internet the vibrant and engaging place we enjoy today.
However, we have seen, over the last decade how heavy weight social media platforms (online content sharing service providers), which have built their success upon the posting and sharing of unlicensed images hide behind safe harbour provisions to avoid fairly compensating rights holdersÂ for the use of their content and shift the liability onto the individual user. These platforms have contributed to fuel the internet with unlicensed content and deprive copyright holders of a stream of revenue.
What is referred as the âvalue gapâ for most copyright material such as music and videos is more accurately called a âvalue blockâ for images as there is currently no opportunity for image providers to participate in any type of revenue scheme online. The situation of image providers is exacerbated by the practice of intermediaries distributing user up-loaded content by facilitating âframingâ, or embedding.
According to CEPIC members 85% of images shared online by visual search systems are unlawful copies. Once uploaded or framed legitimately on a website, an image will be shared thousands of times leading, according to CEPIC members, to an economic harm of a couple of thousands euros per image. This free âavailabilityâ of images has been one major factor leading to decreasing value of images and to the demise of an entire sector.
CEPIC therefore welcomed the provisions in the proposed Copyright Directive which promotes effective licensing agreements between platforms and right holders with the possible, but non-mandatory implementation of effective technologies. It should be stressed that the draft Directive has gone through a long-detailed review of two years and has led to a positive vote of the Legal Affairs Committee on 20 June 2018, taking intoÂ account the conclusions of four other Committees.
We therefore regret the fact that MEPs have been targeted by a coordinated campaign of misinformation against the text of article 13 proposed by the JURI Committee, in a scale rarely seen before and in a clear attempt to obstruct the progress of the legislation that is vital for the protection of copyright online. Valid decisions cannot be based on scaremongering and mass intimidation. Clearly this situation calls for clarification.
If the Directive is approved, it will provide a better functioning online marketplace which will aim to:
–Â Â Â Â Â Â Â Â Â Reinforce the position of right holders to negotiate licensing agreements and be remunerated for the online exploitation of their content on sharing platforms;
–Â Â Â Â Â Â Â Â Â Fix the value gap by sharing the revenues to creators from the use of their content in online platforms;
–Â Â Â Â Â Â Â Â Â Create a level playing field in Europeâs Digital Single Market which will stimulate creation of high-quality content;
–Â Â Â Â Â Â Â Â Â Improve transparency online and give more control to creators by allowing them to determine whether, and under which conditions, their work is used online.
It will NOT:
–Â Â Â Â Â Â Â Â Â Â Â End popular memes, parody or pastiche
Caricatures, parody or pastiche are protected by an optional exception – under Article 5(3)(k) of the 2001 InfoSoc Directive, allowing reproduction and communication of such content to the public and guaranteeing the authors’ freedom of expression.
Therefore, Article 13 of the proposed Copyright Directive will not affect the application of this exception. It only creates an obligation at the level of online platforms and not on their users who will be able to access and post their content.
The proposed Copyright Directive only adds the possibility for authors of memes or parodic content to tackle over-removal by online platforms through the mandatory redress mechanism included in the proposal which means that in case parodic content is removed, the creators of this content will be able to contest the removal and ask the content to be published based on the parody exception in place.
–Â Â Â Â Â Â Â Â Â Â Â Filter the Internet. The proposal does not impose mandatory up-load filters and censorship in the internet.
In fact, the European Data Protection Supervisor has concluded, in its formal comments on the text of Article 13 proposed by JURI report 29.06.2018, that the balance of fundamental rights is preserved by Article 13, considering that the text requires Member States to ensure:
oÂ Â that any measure to be put in place must be âproportionateâ;
oÂ Â the balance between fundamental rights of users and rightholders is preserved and;
oÂ Â that no general monitoring obligation of information transmitted or stored is imposed.
The proposal is not targeting users and their capacity to upload content in the internet. It targets large platforms, which have become major sources of access to copyright-protected content to collaborate with rightsholders. These platforms are required to put in place âeffective and proportionate measuresâ¦in collaboration with the right-holdersâ to allow the functioning of agreements reached on the use of copyright-protected content, or to prevent the availability of unauthorised content if right-holders prefer not to have their content available on such platforms.
In fact, platforms, such as YouTube already use content ID technology to identify copyright protected content which allows authors to be paid when their content is used online. Other platforms, large and small, resort to third party technology to implement a âTake Down and Stay Downâ service. We simply ask that this is standard across all online content sharing service providers.
–Â Â Â Â Â Â Â Â Â Add an additional burden and barrier of entry on start-ups and other small businesses:
oÂ Firstly, the directive only targets platforms âwith large amounts of user up-loaded contentâ
oÂ Secondly, the measures implemented are requested to be âproportionateâ
We are facing a crucial time for the future of the creative industry as the Copyright Reform is being voted on. Copyright laws need to be modernised in order to protect the livelihoods of creators.
We will stay mobilized to start negotiating in order to lift all uncertainties left by the overwhelming misinformation campaign orchestrated by those opposed to the Copyright Directive and provide all information for a fair and informed vote on September 12th, 2018.
CEPIC is a European not-for-profit trade association in the field of image rights. CEPIC was founded in 1993 to present a unified voice to advise and lobby on new legislation emerging from Brussels. It was registered as an EEIG (Economic European Interest Group) in Paris in 1999. As the Centre of the Picture Industry, CEPIC brings together nearly 600 picture agencies and photo libraries in 20 countries across Europe, both within and outside the European Union. It has affiliates in North America and Asia. It has among its membership the larger global players such as Getty or Reuters. Through its membership, CEPIC represents more than 250.000 authors in direct licensing.