Yesterday’s newspaper is today’s chip paper? Brussels' digital commissioner Gunther Oettinger doesn’t appear to think so, rather it is a way to claim levies for up to 20 years.
A leaked draft of Europe’s planned copyright law “could not be worse,” activists have claimed.
Article 15 of the draft directive addresses the “value gap”—so called because channels like YouTube allegedly drive down the value of the music or videos they host.
This proposed new “YouTube rule” would require intermediaries that store and provide access to large amounts of works uploaded by users of their services, “to take appropriate and proportionate measures to prevent the availability on their services of works” for which they don’t have copyright agreements.
The draft law stipulates that such intermediaries should “use effective content identification technologies,” and that rightholders should be able to dictate how these work.
"The [intermediary] services should provide rightholders with information on the type of technologies used, the way they are operated, and the success rate for the identification of rightholders content,” it states, to allow rightholders “to assess the appropriateness of the technologies."
Pirate Party MEP Julia Reda told Ars that such a move may be illegal as another EU law, the e-commerce directive, says that authorities may not impose “general monitoring obligations” on online intermediaries.
“The current draft basically forces any intermediary to act like YouTube, while not every intermediary has the same amount of money, power, and tools like Google. The costs of creating a system like YouTube’s ContentID would impede SMEs from creating new user generated platforms that could compete with the existing giants that exist today,” said Dutch MEP Marietje Schaake.
Reda claimed that “the real bombshell of the proposal is hidden in one of the recitals.”
She said: The commission is trying to change the limited liability for intermediaries through the back door. Clearly, recital 39 is aimed at YouTube, but it risks having a much more devastating impact on any online platform that interact with uploaded works
By way of example, Reda pointed out that Wikipedia shows a featured article of the day on its front page. Under the draft law, a court could conclude that such featured articles constitute “optimising the presentation of the content,” she said, making Wikipedia directly liable for copyright infringement.
The MEP also criticised the inclusion of ancillary copyright—the infamous Google Tax.
Draft article 11 creates a new right for publishers of news publications to authorise the online use of their articles. The reasoning behind this is contained in the proposed legislation:
Unlike Germany's ancillary copyright rule, which protects newspaper articles for one year, the European Commission appears to be seeking to extend the measure to 20 years.
“This proposal is the catastrophe that we have warned about,” said lobby group the Initiative Against Ancillary Copyright (IGEL, which stands for Initiative gegen ein Leistungsschutzrecht).
“This right would affect everybody who communicates online. Since the proposal lacks any distinction in terms of the addressed users/uses and does not limit the scope of protection to excerpts of a certain size, any kind of link that contains a snippet will be covered. No matter of who sets the link.”
Reda agreed. She said: “The proposal goes way beyond the existing German ancillary copyright. Where the German law only targets search engines and aggregators, the European one will require anyone who wants to copy or share parts of a newspaper article to get a licence—even if it’s just a sentence or two to describe a hyperlink to the article.”
Schaake was also disappointed in the proposals: “This draft lacks ambition and instead reads like a defence of old business models. We need a real copyright revolution instead, in order to update it for the digital era, and to help complete the digital single market. I really hope that this is not the final version of the proposed Directive.”
IGEL similarly expressed disappointment with the leaked draft. “No obligatory freedom of panorama. No right to remix, not to mention an open norm like fair use to keep exceptions up to date. So much for the mouthy announcement that the reform will adapt the European copyright regime to the digital world,” it said.
Meanwhile, publishers' lobby group News Media Europe—which was only formed in January this year—said it “wholeheartedly welcomed” the commission’s draft plans to include ancillary copyright. It said:
The proposed law is an update of the current InfoSoc Directive, which includes a list of exceptions—instances when copyright law need not apply—but it is up to each country whether or not to follow the rules. The new draft would make some of these exceptions mandatory specifically text and data mining by research organisations for the purposes of scientific research.
According to the 32-page document, this only applies to research bodies “that act either on a not for profit basis or in the context of a public interest mission recognised by the state. Organisations upon which commercial undertakings have a decisive influence… should not be considered research organisations for the purposes of this directive.”
Teachers may also make use of copyrighted work in an “educational establishment or through secure electronic network only accessible to staff and students.” A final exception is made in the case of the “preservation of cultural heritage.”
Surprisingly, despite a public consultation on the matter, the freedom of panorama is not mentioned in the draft directive. The freedom of panorama allows photographers and filmmakers to use public spaces, monuments, buildings, etc, without having to apply for a special licence.
The commission's official presentation of its proposals for the law is expected on September 21. It declined to comment on the leak