Freitag, 24 November 2017

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Anyone that follows copyright in Brussels will have noticed it: summer break is over and forgotten and we’re being thrown back into the turmoil of the copyright debate.

On 6 September, the European Parliament had a variety of events all directly or indirectly linked to the copyright debate, looking at it from different angles:

  • the ‚censorship filter‘ perspective: Liberal MEP Marietje Schaake (Netherlands) organised a roundtable themed ‚Solving the puzzle: removing illegal content online while protecting human rights‘;
  • the aspiration to get academic thinking infused into the much too politically tinted debate: Greens MEP Julia Reda (Germany) organised a 3-panel debate event branded as ‚Better Regulation for Copyright: Academics Meet Policy Makers‘; and,
  • the current ‚fake news‘ buzzword: MEP Schaake co-hosted with liberal colleague MEPs an event on ‚protecting European democracy in a post-truth society‘, whilst Socialists MEPs Josef Weidenholzer (Austria) and Tanja Fajon (Slovenia) held an event on the political and legal challenges of fake news.

At the same time and in light of the recent Council leaks of (1) the Estonian Presidency’s compromise proposals on the press publishers‘ right (Article 11) & the censorship filter (Article 13) and (2) the ‘non-paper’ from a number of Member States asking the Council’s Legal Service questions on Article 13, combined with the impending meeting of the Council Working Party on Intellectual Property on 11-12 September in Brussels, voices are becoming louder to influence the discussions yet again.

I will spare you the details of all these events and just draw out a couple of ‘truths’ that are slowly emerging as discussions are going beyond catch phrases.

1. Nothing in the Press Publishers‘ Right (Article 11) is about quality journalism

The most annoying sentence you keep on getting when talking about the proposed Press Publisher’s Right (PPR) in Article 11 is: ‘but surely you are in favour of supporting good journalism’. Who isn’t (well, actually, these days, I guess some world leaders aren’t, but let’s not go there).

’nothing in the proposed PPR is aimed at supporting good journalism (…) the right rewards publishers’ investment , not journalists’ originality

The problem is that nothing in the proposed PPR is aimed at supporting good journalism. The ‚academic‘ representing the publishers‘ side during MEP Reda’s event confirmed this when he basically explained that the reason the PPR was needed is because the rights press publishers have today require them to demonstrate that their newspaper articles meet the ‘originality’ threshold required to be covered by traditional copyright. With a neighbouring right, no such fuss: the right rewards publishers’ investment , not journalists’ originality . So anything in a news publication is covered, including football game results , poorly written articles stemming from content farms and replicated ad nauseam from one publication to another, the numbers of last night’s lottery draw, etc..

Where is the quality catalyst there?

Obviously, it goes without saying that there is no obligation for the money that would be collected through this PPR (and analyses show that it’s actually not that much) to be at all used for any such thing as ‘quality journalism’. Or to go to journalists, for that matter.

Where is the link then with quality journalism?

It is hence clearly becoming evident that the debate is not motivated by quality journalism, but by a clear wish by a couple of major publishing giants to reinforce their market power, to the detriment of EU citizens, smaller publishers, and media pluralism and diversity in general.

2. Fake news has nothing to do with the creation of new copyrights

‚Other publishers that are not motivated by a financial incentive, but by a more political agenda, announce that their publications will not require any licensing fees, making their articles much more attractive to share and thus more prominent on the net‘

Linking ‘popular’ concepts to one another is in Brussels is quite common: it is often the best method for policy makers to draw attention to a debate that would otherwise not make the press headlines.

But beyond the PR tactics, common sense must kick in at some point. If Europe adopts a model whereby the digital use of press publications falls under a neighbouring right (the PPR), the following scenario could quite realistically occur:

The big ‘respectable’ publishers ask for a licensing fee for the digital use of their publications. Only those aggregators, search engines, and others that can afford this additional costs continue sharing their articles, whilst others refrain from doing so. At the same time, other publishers that are not motivated by a financial incentive, but by a more political agenda, announce that their publications will not require any licensing fees, making their articles much more attractive to share and thus more prominent on the net, this to the detriment of ‘legitimate news’.

Does that truly seem like a ‘fake news’ antidote?

And if the PPR is a ‚fake news‘ antidote, why did Germany feel compelled to adopt a fake news legislation on toip of its existing ancillary copyright, which is after all the inspiration behind the EU pushed PPR?

This view is reinforced by a recent article from Law firm Hogan Lovells acknowledging that ancillary copyright is not a solution to fake news, as is, for example, suggested by the EPP Group.

“(…) it is not quite clear how the phenomenon of fake news per se would be prevented by a ancillary copyright for press publishers: many of those spreading fake news are not interested in quality journalism. They either aim for targeted misinformation, or they simply do not care about the truthfulness of the information they pass on. Only too often, the core interest is to generate clicks on a website.

The phenomenon of fake news is well known. However, it is quite likely that the impact a new ancillary copyright would be limited because publishers who have committed themselves to quality journalism already (generally) refrain from passing on unverified information.”

The ultimate irony in the discussion is that many of the outlets that are associated to the distribution of ‚fake news‘ will actually benefit from this PPR.

3. Nothing in the Censorship filter (Article 13) is about fair remuneration of creators

Aside from the fact that the proposed filter for user uploaded content on online platforms has been shown to threaten fundamental rights of EU citizens and businesses, it is now also increasingly clear that it is not, nor has it ever been about fair remuneration of creators.

‚[Article 13] will mostly benefit the corporate ‘creative’ business who sign up performers and have the upper hand with respect to how they should be paid in return‘ – Fair Internet Coalition

This is evidenced by an open letter issued on 6 September by the ‘Fair Internet Coalition’, a group representing European performers, and which clearly states that “[Article 13] will mostly benefit the corporate ‘creative’ business who sign up performers and have the upper hand with respect to how they should be paid in return (…) Transparency measures may only be of use for a small minority of performers with enough leverage to negotiate ongoing payments. However, this is not the case for the overwhelming majority of performers who simply sign buy-out contracts”.

So on another article, the same pattern emerges: the whole discussion seems to be about consolidating a few big ones, to the detriment of all others, including creators. At the same time, the complaint voiced in this letter confirms a fact that is increasingly clear when looking at the numbers: the creative industry sector has been growing year in, year out, not shrinking. Yet for a majority of creators, that growth does not necessarily translate into a growth of their own financial health…Could it then be that the mythical ‘value gap’ does not sit where some pretend it to be? Could it be that the relationship between rightholders and creators is the one where a gap needs to be remedied?

Conclusion

It is time to leave this House of Mirrors for what it is: a set of delusions that have little to do with reality. Copyright is in dire need for improvement and most of what is on the table pushes it in the wrong direction. Let’s push the interests of a couple of big ones to the side and think of such revolutionary things as the public interest, including that of users and creators. Let’s be bold!

Caroline is coordinator of the Copyright 4 Creativity (C4C) coalition. She is also the founder and Managing Director of N-square Consulting (N²), a Brussels-based public affairs firm. She is the author of ‘iLobby.eu: Survival Guide to EU Lobbying, Including the Use of Social Media’.