The new regulations adopted by the EU Parliament will affect the digital market and the wider Internet. We have prepared a list of changes and comments regarding their shape and meaning, which is sometimes difficult to find.
On 26 March 2019 The European Parliament adopted the Copyright Directive in the Digital Single Market (hereinafter the Directive) 348 votes in favour, 274 votes against, at 36 Abstention votes. The greatest controversy was in the Directive Article 11 and Article 13 (in the final text the numbering of the articles has finally changed to Article 15 and Article 17).
Press releases become new related rights
Article 11 The Directives provide that Member States shall ensure that publishers of press publications are given the rights provided for in Article 2 and Article 3(2) Directive of the European Parliament and of the Council Directive 2001/29 of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.
The introduction of such a structure means that, with the entry into force of the Directive, publishers of press publications have the exclusive right to permit or prohibit the reproduction of press publications and their making publicly available, in whole or in part.
Press releases will therefore be protected by copyright and related rights.
Under the Directive, press publications are meant to fix a collection of journalistic literary works, which may also include other protected works or subjects, and which constitute a separate whole within a periodical or regularly updated under a single title of a publication, such as a newspaper or a magazine of general or specialised concern, to provide information on the news or other subject matter and published in any medium at the initiative of the service provider, under its responsibility and control.
The Copyright Directive adopted as it stands does not seem to follow the online reality, where the boundary between the creator and only the passive recipient has been significantly blurred
So, in theory, not only will the widely understood articles published on websites be protected, but also passages such as a header or snappets (an extended description of the website). By proposing a sound Article 11 The directives, the EU drafter, justified its content with the intention to recognise the organisational and financial contribution they make to the production of the publisher’s press publications and to create incentives for them to ensure the stability of the publishing industry.
The obligation to conclude licensing agreements will rest on service providers
Article 13 The Directives provide that providers of information society services which store and provide access to copyrighted or related material placed by their users shall, in cooperation with rightholders, take measures to ensure the functioning of contracts concluded with rightholders for the use of their works or other subject matter.
The Directive also requires the prevention of accessibility in works or other copyrighted or related subject-matter services and identified by rightholders in cooperation with service providers, indicating as potential means of achieving this objective the use of effective content recognition technologies of an appropriate and proportionate nature.
In addition, suppliers are required to provide rightholders with information on the operation and implementation of the measures and, where appropriate, an adequate report on the recognition and use of works and other subject-matter.
Fair compensation or a tax on links?
Covering press publications as copyright related rights means that in order to use the publication (link, hyperlink or citation) it will be necessary to obtain an appropriate licence. The burden of licensing contracts, as already mentioned, will rest on information society service providers, which enable users to store and make content publicly available. In the establishment of an EU legislator, such licences are to be paid in most cases and to ensure fair compensation for the use of the content generated.
Thus, the controversial provision in the assumption was to influence entities that are service providers based on aggregate content such as Google News, Squid, Appy Geek, AppDay or #techinformation, whose foundation of operation is to show links to other sources along with an extended description (snippet), from where the press publication originally originates.
The need to enter into licensing agreements for these content was intended to make the generated profits go to press publishers as well.
Article 11 The directives therefore raised first of all concerns about the fact that it introduces the so-called "link tax" (link tax) consisting in the need to ensure participation in the proceeds of the provision of aggregate content, under the cloak of the need to include press publications in the category of rights related to copyright.
Experience from Spain and Germany shows that the opposite effect is due to the protection of the relevant related rights in the press publications, which gives the possibility to license them for payment. Congregating content by posting titles and extended descriptions of press publications cause readers to flow to sources of publications, i.e. to publishers' websites.
The EU project promoter apparently missed out entirely the fact that providers of content-based services offering access to these content by an appropriate reference de facto already act in the benefit of publishers, as they increase the number of visits to source websites and thus increase revenue generated by advertising.
The IT giants, although they derive substantial financial revenue from the provision of aggregate content and have technical resources, are primarily interested in tangible economic results, and, in the case of additional and excessive costs threatening the profitability of the project, prefer to withdraw from it.
In the case of Spain, Google has decided to withdraw the Spanish language version of Google News completely, network traffic on press publishers' websites has decreased significantly and with it revenue has decreased.
In Germany, publishers, on the other hand, are again cooperating with the giant, under the conditions of the giant, because of the perceived lack of network traffic generated by visiting Google News.
It may therefore be that, in order to give greater protection to press publishers and to take care of their income, the EU legislature has done them a great service.
The possibility of granting free licenses for generated content does not offset the damage resulting from the decrease in the number of visits and network traffic on publishers' portals.
It is also difficult to state clearly how the new regulation will be reconciled in the so-called right of quote, both under international law and in the legal order of the Member States, which is an important element of public debate, exchange of views and thoughts.
Especially since so far simple press releases have not been treated like a track. Referring to press publications, quoting in part (subject to the source and the author's name) is part of a daily discussion, it serves to invoke certain circumstances, statements, positions.
Press publications and references to them are readily used by publicists, people who blog online, creators, as well as journalists themselves, part of creative activity, conducting as users of portals (Twitter, Facebook or individual publishers portals). The right-to-quote freedom often gives the modern possibility to verify the veracity of their claims by presenting it to a wide range of users (for example, users of the portal), commenting, or perhaps even overthrowing false messages that are a scourge of the information age, or so-called "fake news".
The Copyright Directive adopted as it stands does not seem to keep pace with the online reality, where the boundary between the creator and only the passive recipient has been greatly blurred. With the entry into force of the Directives, the already existing phenomenon of the use of copyright instruments in situations that are not covered by such copyright trolling may also increase.
Applying a upload filter, where my memes have gone
Entry into force Article 13 The directives mean that providers of services enabling users to share content (especially those such as Youtube, Facebook or present in the national Wykop.pl yard) will be required to enter into licensing agreements to allow the use of works which the user of his platform will place.
Furthermore, the service provider is obliged to take measures not only to ensure the functioning of the agreements for the use of the said content but also to take measures to prevent the availability of protected content. one such measures may include the use of content recognition technologies for preventive (pre-emptive) purposes, and is also referred to as ‘forward filters’.
It is precisely this obligation, which can be implemented through automated content recognition technologies, that raises objections to Article 13 The directives. The technologies seeking copyright violations already placed (follow-up control) of the materials are currently used and are not without faults.
They are far from perfect and often find it difficult to determine precisely whether a specific content violates copyright or not. There are multiple situations where, as a result of the notification of alleged infringement of the rights of entities, third the content is mistakenly removed by the filtering system.
A hypothetical content recognition technology to prevent content covered by copyright and related rights from being made available in first order would require a vast, constantly updated database, allowing comparison of the content sent to existing works.
Subsequently, technologies that automatically recognise content would have to be advanced enough to determine whether the content sent is potentially in breach of the rights of the parties third.
As already mentioned, the current filtering systems leave much to be desired and are unable to recognize whether the material is parody, review, or perhaps pasty or comment, or whether it falls within the limits of permitted use or right quote.
Since the service providers will depend on minimising the risk of possible infringements of the rights of the entities third due to the risk transfer of liability for the content made available to the service provider, it is easy to imagine a possible scenario of abuse of the transmission filter in which content relating to the already existing press or publication will continue to be suspended pending verification or the system will recognise them infringing the rights of operators third by notification or own initiative.
There is also a real danger of moderating using content algorithms appearing in the internet space, under the appearance of copyright infringement or related rights. The use of technological means to reduce the flow of specific content has already taken place due to certain worldly sympathy.
An example of this is the irregularities in the algorithms used by Facebook, which have been manipulated in such a way that the platform reduces the range of content provided to users associated with a concrete view of the world, or does not even show it to users.
To prevent specific content from appearing on the network for fear of violating or under the pretext of protecting related rights linked to press publications will consequently be a quasi-censorial action limiting the free movement of content on the Internet.
The vast majority of content made available on platforms provided by information society service providers is created by users in relation to other works.
An excellent example of such content is memes, which from a simple picture bearing two The text has evolved into one with the most popular online phenomena and manifestations of the creativity of network users.
The concerns of opponents of the Directive are justified enough that the official profile of the European Parliament on Twitter, in English version, on 28 February 2019, i.e. before the final vote, we can read that "Your memes are safe", which free in translation means that we should not be afraid for our memes because they are safe. But are you sure it will?
Author: Michał Skwarek - Advisor's Application in the Legal Department. Graduated from the Faculty of Law and Administration of the University of Warsaw.
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