The European Union's plan to get YouTube clean up its act – the proposed updates to copyright for the Digital Single Market – went through 37 revisions before emerging earlier this month: and the movie chiefs were nervous.
Wiggin’s partner and Brussels chief Ted Shapiro lifted the lid on the backroom wrangling that led to the final draft for us this week. Shapiro co-authored the “bible” of how to implement the European Copyright Directive, and his navigations through the mind-boggling complexity of European law are always frank and sometimes unprintable.
He also cautioned that it would be years before the mooted copyright proposals are implemented.
Two elements in the great wodge of compromises got much comment. One gives digital press publishers the right to ask Google for money for the snippets Google scrapes. The other obliges (some) user-generated content (UGC) platforms (eg, YouTube) to filter out infringing material.
Neither idea was in the Commission’s original thinking. In fact, the Commission’s marquee policy (which the Commissioners assumed would be really popular) of mandating cross-border access to content, aka “geoblocking”, turned out not to be quite so straightforward, and has mostly been slung into a separate waffle fest.
Policy-based Evidence-Making: from a leaked European Commission draft, April 2015
The “Value Gap” obligation to filter UGC uploads is aimed at the heart of YouTube. See our Prestige Boots analogy to see why YouTube was singled out – Google had found a uniquely convenient loophole, originally designed for companies like Dropbox. This concerned UGC and it is not one Apple or Spotify can exploit: they had to sit down and negotiate licences like everyone else. Google can maintain an unlicensed supply chain alongside the licensed supply chain - which is something everyone (bar Google) thought gave Google an unfair advantage.
“YouTube is making a fortune on the back of User Generated Content, compared to directly licensed sites like Spotify. The music authors’ societies and music producers are providing blanket licences for UGC platforms, but they consider the money on offer from YT and other similar platforms to be derisory,” Shapiro explained.
But the move made some nervous.
“In the view of the film sector it would have been much better if none of it was happening at all. There was unease about tampering with important exclusive rights. Indeed, the film sector tends to be nervous about changes to existing copyright rules at the EU level. However, the European Commission had become convinced that the Value Gap had to be bridged. The difficulty was devising a solution that did not screw up the exclusive right of communication to the public, and the hosting privilege in the E-Commerce Directive.”
He added: “A lot of lobbying was done.”
How much? 37 iterations of different proposals apparently.
“Finally what emerged on 14th September was a new provision that requires certain platforms to take measures to ‘ensure the functioning of agreements with rights holders, or filter out the bad stuff’. That is not an approach based on opening up the right, but seems to walk a tightrope between the E-Commerce Directive and existing case law, and it probably works and of course this is just the beginning of the legislative process.”
But nothing is totally straightforward in the EU, where application of the law is fairly arbitrary.
“It is clouded by Recital 38. Recitals are supposed to be guidelines – but I’ve seen the CJEU pluck out words in recitals and base an entire case on them: as in the Premier League case. Individual words will be fought over in a Recital. A Recital isn’t something you want when you really want something, but you will settle for it as a side protection.”
Next, let’s examine the new "Related Right" or "neighbouring right" thrown to press publishers.
So what’s a related right?
“A neighbouring right is like a poor cousin of an author's right. It lives in the same neighbourhood – just on the other side of the train tracks.” “We have related rights for music and film producers, for music and film performers, and for broadcasters”.
Neighbouring rights have an odd history. Once upon a time, Shapiro explained, performers sought the same rights as authors at the international level, but the French Government and French Music Authors Society at the time refused to allow the Performers into Berne the Berne Convention. So performers’ rights were first dealt with under the Rome Convention, and later in the WPPT and Beijing Treaty, but not under Berne. And US performers were completely stiffed, as the USA refused to sign Rome Convetion. US performers only got their rights for recordings before 1972 thanks to a civil action a couple of years ago.
See the ℗ symbol on all your records? There you go - that's like the secret symbol for Silent Tristero. Now you’re going to start seeing it everywhere.
Occasionally a new bone is thrown out if somebody shouts loudly enough. The new bone here is the “Press Publishers Related Right”. But don’t let the name fool you: it’s no use if you have a printing press.
Firstly, Shapiro noted, the justification for establishing a related right is based on the fact that because publishers don’t have copyright at the EU level, they rely on the rights they license from authors.
“Publishers didn’t even qualify for the value gap problem. In the Commission’s view they currently lack the requisite leverage to negotiate with platforms, and it made enforcement more complicated as well. The CJEU’s decision in HP v (collective rights management organisation) Reprobel helped lead to the Commission being convinced (particularly by German news publishers) and came up with a “Press Publishers Related Right”.
Secondly only some publishers qualify. Scientific publishers, academic publishers and regular publishers don’t qualify. It’s only for digital uses. It only lasts 20 years (not the 50 years that broadcasters get).
Social Justice Warrior and Pirate Party MEP Julia Reda
“There is going to be a huge, huge battle over this, because Julia Reda and many anti-copyright groups think publishers will destroy the internet and bring us back to the Stone Age,” he noted, before trying to dispel their fears .
“It puts press publishers at the same table as other rights-holders. They get what everyone else already has. They don’t get the ability to tax every link – most links are not subject to copyright anyway,” he explained.
Try explaining that to the tinfoil-hat nutters, though. Last year Reda’s office posted a video asserting that “Your daily life is illegal.”
The last big push to overhaul copyright in Europe appeared on December 10, 1997. Working at breakneck speed, Brussels passed it into law in 2001. It then took five years to implement in the member states.
That takes us to 2025, or in the UK, nowhere at all. ®