Text and photography by Christian Ernhede
Perhaps unsurprisingly, stakeholders are in almost universal agreement on the need for reforming the current copyright framework for it to be relevant in a world where digital distribution channels are increasingly dominant. What form a reformed copyright directive should take and even what the proposal that the European Commission presented in September 2016 entails is however still far from clear.
The Commission is unrelenting in its backing of the proposal despite the apparent lack of clarity on what its implementation would mean practically. Understandably, acknowledging any weaknesses in the proposal might be seen as a setback for the Commission in the ongoing negotiations with the other EU institutions, but it is regrettable for democratic discourse that the discussion cannot move beyond what the current proposal would entail if implemented as it stands. Giuseppe Abbamonte, director of the Media and Data Directorate at European Commission, maintains that the lack of clarity in discussions is not due to any ambiguity in the proposal but due to the complexity of the issues and “certain people trying to confuse the discussion.”
One of the most controversial and dividing aspects of the proposal is the creation of a new neighbouring right for press publishers. The new right would grant press publishers protection for a duration of 20 years to the “digital use” of their publications independent of any rights that they acquire through licensing of the authors’ rights.
The proposal states in an introductory recital that the reasoning for creating a press publishers right is that “in the transition from print to digital, publishers of press publications are facing problems in licensing the online use of their publications and recouping their investments.” According to Mr. Abbamonte, the licensing difficulties identified include a difficulty for press publishers to assert their rights in court proceedings in some member states due to having to prove the existence of licenses from a large number of contributors, as well as a need to address the issue of “free-riding” by mayor online platforms like Facebook, Twitter and Google on press publishers’ investment in the production of original content.
There is however widespread confusion on how the new press publishers right would address this. According to Mr. Abbamonte, the new neighbouring right does not change the scope of copyright protection while Wout van Wijk, Executive Director at News Media Europe, claims that “creating a neighbouring right would give additional bargaining power to publishers when granting licenses for the reuse of their content in social media.” The question in many stakeholders’ minds is likely to be how a new right can create additional bargaining power without changing the scope of the right that it grants. According to Julia Reda, a member of the European Parliament representing the German Pirate Party, and one of the most vocal opponents to the proposed neighbouring right, there is however little doubt that the the proposed new right is broadening the scope: “neighbouring rights always have a broader scope than copyright, because they don’t have a threshold of originality. Whereas single words or very short sentences cannot be protected by copyright, they would fall within the scope of the neighbouring right.” She adds that “the proposed new right would make links to news articles subject to a fee, even if only the headline is repeated in the link. That’s a serious threat to freedom of information online.”
Undeniably, online platforms do profit from the sharing and linking to content produced by other online publishers (including but not limited to press publishers). A Google without other websites would not be much to speak of. The decision to address the issue through the introduction of what has been dubbed by some as a “link tax” is however a controversial route for the Commission to take. Similar laws have already been introduced in Germany and Spain, and there they have been unable to reduce the “free-riding” of online platforms; the thinking is arguably that an EU-wide law would give it the needed scale to take them on. According to Ms. Reda, the dominance of a few large internet platforms may however be more of an issue for competition law than copyright law and she says that the idea of introducing a “link tax” is flawed because you cannot legally force a company to pay for a service it does not want. She also points out, in apparent reference to the consequences of the German law, that “a collecting society giving a service for free to one service provider and not to another may very well be illegal”.
While Cédric Manara, Senior Copyright Counsel at Google, makes it clear that Google opposes the proposed press publishers right, they and other market-dominant internet companies are likely to benefit from the proposal by further entrenching their market position. As Ms. Reda points out: “[in Germany] only Google got free licenses whereas smaller competitors did not”; the rationale being that new entrants will not have the economic clout vis-á-vis publishers to obtain free licenses.
One aspect of the proposal that is steeped in disagreement is whether the neighbouring right for press publishers will have retroactive effect. Article 18(2) of the proposal is clear: “the provisions of Article 11 [on protection of press publications] shall also apply to press publications published before [the date of the directive entering into force]”. Mr. Abbamonte has however consistently maintained in public discussions that the proposal will not have retroactive effect, and he is partly right in that article 18(3) of the proposal makes the exception that it “shall apply without prejudice to any acts concluded and rights acquired before [the date of the directive entering into force]”.
In the context of the digital use of press publications and website linking, the Court of Justice of the European Union has recently held in GS Media v Sanoma that not removing a link may be a communication to the public and thus a continuous activity. The exception in article 18(3) to acts concluded before the proposal would enter into force is thus unlikely to be applicable to typical publishing on the internet. Mr. Abbamonte has not replied to questions asking for clarification on the Commission’s reasoning for maintaining that it will not have retroactive effect.
In practice, retroactive effect of the directive would force websites to adapt already published content to ensure that they do not infringe on press publishers’ neighbouring rights going back 20 years from when the proposal would enter into force. Doing so is all the more challenging given the lack of clarity on the scope of the proposed right.
Therese Comodini Cachia, a member of the European Parliament and holder of the key position of rapporteur for the proposal recently stated in an interview that one of the key aspects of the press publishers right is that “press publishers will no longer depend on the rights of artists and of journalists”. Ms. Comodini Cachia thus also highlighted one of the key controversies of the proposal. The Court of Justice of the European Union has already held in the case of Football Association Premier League Ltd v QC Leisure that neighbouring rights are independent rights and does not require any underlying author rights. In the context of the new proposal this would open up for the possibility for press publishers to have copyright protection for articles generated through the use of algorithms.
In a twist of fate, Ms. Comodini Cachia was also one of the co-authors of a report on civil law rules on robotics that was recently approved in European Parliament’s legal affairs committee. The introduction to the report states that “humankind stands on the threshold of an era when ever more sophisticated robots, bots, androids and other manifestations of artificial intelligence seem to be poised to unleash a new industrial revolution, which is likely to leave no stratum of society untouched.”
Journalism is at the forefront of that revolution. Publishers in data-intensive areas such as sports and financial news have been producing high volumes of news articles through the use of algorithms for years; the Associated Press has for example been using algorithms to write large numbers of news articles about company earnings announcements since 2014.
Messaging bots that interact and respond to user questions on news topics is another area where algorithms are currently being put to use by press publishers such as The New York Times, CNN and The Wall Street Journal. Such usage is likely to further expand to other journalistic domains as well as new communication channels with the increasing capabilities of computer algorithms. One can for example already anticipate the usage of autonomous drones to compete with human photographers in certain areas of photojournalism.
While algorithmic automation of writing legible articles may seem like science fiction, presumably it is not unfamiliar to Ms. Comodini Cachia whose draft robotics report originally called on the Commission for “elaboration of criteria for ‘own intellectual creation’ for copyrightable works produced by computers or robots”. That passage was however removed from the final report. According to Ms. Reda due to that “it would break with the fundamental principle that copyright protects only authors’ own intellectual creations.” The lack of public discussion and clarity from the Commission on this aspect of the proposal is thus particularly regrettable. If some form of copyright protection should be introduced for computer-generated content, it should be done in a clear and open process through proper public discussion, and by setting out clear limits to such a right, not through the backdoor in the name of protecting journalism. A press publishers right, proposed as a measure to protect critical public discourse, may inadvertently support its demise by equating the copyright protection of human writers (arguably a unique source for critical thinking) with that of algorithms.
Mireille Van Eechoud, professor at the Institute for Information Law at the University of Amsterdam recently summed up much of the thinking on the proposal: “frankly, the proposal is quite cavalier in its assessment of its negative impact.”