Copyright - How to lose friends and alienate people

With more melodrama than the latest ‘must see’ T.V. series, stakeholders on most sides of the copyright debate reacted with disappointment and no little amount of fear to the European commission copyright proposal, released on 14 September.

The proposal will be the biggest change to the copyright landscape since the 2001 InfoSoc Directive and will attempt to reflect the radical changes that have occurred since that time. From VHS and cassette tapes in a Walkman to smartphones and music in the cloud, the copyright landscape has changed drastically. The Commission’s attempts to reflect these changes have not been received well universally. So just who is unhappy with it and why?

Who is saying what?

Never ones to miss a good soundbite, lobbyists on different sides have described the leaked proposal as ‘breaking the internet’, ‘an analogue approach in the digital age’, ‘a 19th century approach for the 21st century’, or most witheringly, a ‘copywrong’.  

Digital platforms and intermediaries are strongly against the proposals for an ancillary copyright on linking to news stories and proposals for an increased role for intermediaries in monitoring and taking down copyright infringing content.

Consumer and digital rights groups were equally taken aback with the proposal – lamenting the potentially limiting effect on consumers’ access and ability to create the ruler of modern society, namely content.

Commercial TV broadcasters and rightsholders are concerned that proposed changes to Video-on-demand services online will in effect amount to pan-European licensing and create a race to the bottom for licensed content and exclusive rights.

MEPs, such as Julia Reda and Marietje Schaake, have also called for the proposal to go further regarding freedom of panorama, which concerns the use of images of buildings/art/monuments that are in public areas but are covered by copyright protections.They want to see unlimited freedom of panorama across the EU.

The Commission have managed to please some interest groups, namely news publishers, through the aforementioned ancillary copyright, and music publishers through the provisions for online platforms to take increased measures to protect the use of copyrighted (e.g. content recognition technologies). Music publishers feel that this will put more responsibility on platforms to protect and monitor for copyright infringing content and address the ‘value gap’ between what platforms generate from their online content and what is received by artists and creators.

So what are the main concerns?

One of the biggest concerns expressed by digital rights and consumer groups is that of potential limits on user generated content through requiring online services to create content filtering technology to identify copyrighted material. In theory this could prevent content such as lectures online which use small clips of copyright content or a group of friends singing along to a rock classic. While the former would indeed have negative consequences when we talk about a free and open internet and knowledge sharing, the latter may just be some welcome quality control!

In addition to potential limits on freedom of expression and the free and open internet some fear that the proposal would create a sort of policing by major tech companies through their content id filtering systems. The companies themselves are strongly against the proposal as it would undermine the limited liability regime for intermediaries (no general monitoring obligation) that is enshrined in the e-commerce Directive. Any sort of general monitoring system would be timely and expensive. For example, there is over 300 hours of video uploaded onto YouTube every minute, so to create a system that monitors, accurately identifies and then eventually removes copyright infringing content takes serous engineering manpower and advanced technology.  Whatever impact this may have on established companies it would be a serious deterrent for potential start-ups.

Another major issue for digital rights and consumer groups is the freedom of panorama, For example, some world famous landmarks such as the Colosseum and the Little Mermaid statue in Copenhagen require permission before publishing photos. While that would likely come as news to most tourists, in theory they could be prevented from putting their photos on Instagram or Facebook. In practice this is not likely but many want to see the proposal contain unlimited freedom of panorama across the EU in order to provide certainty.

The Commission’s plans to make broadcasters’ online transmissions more readily available across borders (by applying the country of origin principle of the Satellite and Cable Directive to Broadcasters online video on demand services) has, you guessed it, been met with dismay from commercial broadcasters and rightsholders. In principle, this change would allow broadcasters to show content on their online platforms across the EU after securing the rights in their home country e.g. BBC’s iPlayer could offer licensed shows to viewers outside the UK. The European Broadcasting Union (which represents public broadcasters) is in favour of this proposal. But commercial broadcasters and rightsholders feel it may dilute the value of their content and ability to sell exclusive rights in different EU member states.

News publishers could be happy with the proposal for an ancillary copyright (‘neighbouring right’) whereby they would have the right to charge online services when they show snippets of their news. However, given the experience of similar systems in Germany and Spain, this can result in news aggregators simply no longer linking to the news sites thereby reducing traffic and revenue for the website. How this may work in practice would also be a major sticking point, and indeed, even it is workable, could result in cementing the positions of dominant players in the news aggregator market. This would strike a self-inflicted blow by the European Commission on their quest to encourage innovation and start-ups in Europe.

What’s next?

We can expect to see intense lobbying, changes and ultimately a vastly different copyright reform to what has been proposed. With so many different stakeholders affected and so many contentious issues on the table, it is no surprise that the previous Commission attempts didn’t seek a major overhaul of copyright in the EU. While the leaked proposal may not have been received with open arms, the coming months/years will be the opportunity to sculpt a copyright regime that is fit for modern times.


By George Niland, Account Manager