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.

Retroactive Effect

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.

Robot Journalists

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.”