Updated as promised on paper, and again and again

Brussels sprouted leaks

WHATEVER happens between the UK and the EU in the next few years, developments in EU policy are important here. It's possible that the UK government will agree to comply with future EU rules in return for tariff-free access to the Single Market - the "Norwegian model". We don't know, and we don't believe government has the faintest either.

Even if the hardcore Brexiteers win out, EU policy will set the main context for UK developments. And in September we were hit with a spate of leaks from the EU Commission - its civil service - on plans to change the law on authors' rights and copyright. Then these seem to have brought on the official propsal - a Draft Directive - a little earlier than expected.

The proposals are quite modest, and parts of them may indeed provide a platform for opposition to the expected efforts by Google, Facebook and company to move UK law in the direction of US copyright law post-Brexit, whatever that may be.

As expected, the Draft Directive does not live up to the pleasing noises made by their bosses the Commissioners (see the July Freelance) on dealing with the unfair contracts imposed on us. The failure to directly address imposed contract terms and particularly prices is hard to reconcile with a Commission Impact Assessment. This repeatedly asserts that payments to authors (including journalists) would automatically rise if the scope of the licences being paid for broadcast use of our work was expanded to the whole EU. This does not match our experience of how broadcasters and (particularly) "independent" producers operate.

Two pro-creator measures

The two pro-creator measures in the Directive could, however, be interesting. One demands transparent accounting for uses of work - particularly interesting for photographers. The other is a provision for authors and performers to request additional remuneration when what was first agreed "is disproportionately low compared to the subsequent relevant revenue" from the work. This allows at least for a share of "windfall" profits; could it do more? The European Federation of Journalists has welcomed these proposals, as has book author Philip Pullman for the Society of Authors.

The Fair Internet campaign (#FairInternet4Performers), representing performers in Europe, however, called the proposals "a lost opportunity".

Benoît Machuel, General Secretary of the International Federation of Musicians (FIM), said: "For the vast majority of performers, a mechanism to rebalance unfair contracts is simply not enough. What we need is a right for all performers to be paid each time a performance is used online on iTunes, Netflix or Spotify".

...and some worries...

There has been worry over the crucial question of income that journalists get through collecting societies for use of our works in education. The Draft Directive at least allows the current payments through collecting societies in the UK to continue. There is a controversial proposal for newspapers - not journalists - to claim money when snippets are used by search engines.

There is also a draft Regulation designed to encourage the availability of television programmes across borders. It would, if passed, provide that use of authors' and performers' work online simultaneously and in "catch-up" can only be licensed through collecting societies. This may be all very well in practice, but it'll never work in theory, as we explain below.


5 October 2016

OK, I've re-read the official Draft Directive.

Secondary uses and collecting society cash

The income that journalists get through collecting societies for use of our works in education is important to making independent journalism sustainable. The Draft Directive suggests the fairly small change of an "exception" to copyright for use of our work in "illustration" in classrooms (including virtual classrooms). It then leaves it to member states to decide whether to:

  1. have no exception where there is a licensing system in place; or
  2. compensate journalists in some other way; or
  3. neither.

So, if a Directive were passed in this form, journalists' organisations in each member state would have to lobby their government to ensure members got this income. Option (a) is already in UK law.

A new right for newspaper owners?

There is a proposal for a "neighbouring right" to copyright that in theory would allow newspaper owners to claim money when snippets are used by search engines.

But where a search engine is in what is politely called a "dominant position" in a market, it can simply say to the newspapers' owners: "set the licence fee at zero, or we stop sending people to your website". The fundamendal flaw in the proposal is that it would not put into law a right for journalists to share in any income that was collected.

Out-of-commerce works

There is a proposal for EU-wide Extended Collective Licensing (see our definition). This would, it seems, apply to "out-of-commerce" works only.

More on this, soonish.

‘Text and data mining’

This proposal looks harmless on the surface, because it appears to give only universities the right to comb through others' publications to "mine" them for interesting data patterns. True, any provision that was lobbied for on the basis that it could cure cancer should be looked at askance.

And... what's this in the preamble to the Directive about universities' "partners"? Those would be Google. It has illegally copied 15 million books - to feed its Artificial Intelligence and machine-translation systems for profit, much more than to help you look up references online. That has been declared "fair use" in the US. It was done in partnership with universities. So this is, among other things, a back-door way of retroactively legalising what Google wants to do.

TV sans frontières - it'll never work in theory

The Commission wants to encourage availability of TV across the EU. (At least one Commissioner keenly wants to be able to watch TV from the home country, in Brussels.) So there is a proposed Regulation to encourage this. (An EU Regulation, once passed by the member states in Council and the Parliament, takes immediate and direct effect in all member states. Before a Directive takes effect they each have to amend their national law.)

This Regulation would, if passed, provide that use of authors' and performers' work online simultaneously and in "catch-up" can only be licensed through collecting societies. This is the present position with cable retransmission.

It may be all very well in practice. All creators whose works are broadcast - including photographers whose stills appear onscreen - will get money through collecting societies that almost none could get individually.

But it'll never work in theory. Some will fear it's a move toward payment for much online use being mediated by collecting societies. The NUJ will be consulting with other creators' organisations...


10 October 2016

Re-reading it on the train to Brussels, some additional points become clearer.

Out-of-commerce works

The proposal is reasonable in its stated intent. The preamble to the Directive talks of collections in museums that were never intended to be in commerce... fair enough, but not what the substantive proposal says. I shall be promoting amendments to ensure that:

  1. an author or performer can "opt out" either the whole of their œuvre or selected works;
  2. we can do so once for the entire EU; and
  3. that the "customary channels of commerce" referred to in the definition of "out-of-commerce" specifically include self-publishing, including blogging in search of ad revenue.

If that's achieved, the provision should be mostly harmless.

The NUJ and others achieved (a) in the UK law allowing collecting societies to apply to issue extended collective licences, passed in 2014.

Online service providers’ obligations

Finally decoded this one. Google's Documents and YouTube subsidiaries, FaceBook, Twitter and indeed all "file-sharing" services will, if it is passed, be obliged to install software to automatically recognise copyright-infringing content and stop it being... "shared", in their preferred lobbying language.

This interests me, as a journalist, mostly for its knock-on effects on other areas of public policy, such as the current lawsuits over the victims of "revenge porn" having to play Whack-a-Mole™ each time the offending "content" reappears. The online service providers may publicly rail against it, but they will privately welcome it, because the alternative is for them to bear the full legal responsibilities of being a publisher, when they are acting as one, which is often.

Archiving

Libraries, museums and archives shall be allowed, throughout the EU, to make copies solely for the purposes of preservation. On third reading, I have still not found a malign interpretation of this.

The ‘transparency’ provision.

Beware the loopholes. Tirelessly lobby to have them taken out and stopped up.


17 October 2016

Accessible copies

A separate set of proposals deals with exceptions to copyright for the making and exporting of "accessible copies" for people with "print disabilities". The issue with this is the definition of "print disability", which includes not only the category traditional in the UK of people who are "visually impaired", but also "a person who has a perceptual or reading disability, including dyslexia". Without wishing to detract from the needs of people with actual disabilities: could this include, for example, people who are too lazy to read a piece?

It is, however, uncertain whether anything can be done to change this, because it implements the Marakesh Treaty negotiated at the UN's World Intellectual Property Organization, which the EU has signed up to.

Last modified: 17 Oct 2016; first posted 25 Sep - © 2016 contributors
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