Response to Green Paper on Copyright & Neighbouring Rights in the Information Society (1995)
Response of the Coordination of European Picture Agencies to the Green Paper
Copyright and Related Rights in the Information Society presented by the Commission
General preliminary remarks
CEPIC was founded in Berlin in 1993 as a European Economic Interest Group in accordance with the Council of the European Community Decree. CEPIC comprises 11 national organisations in 8 EU and EFTA countries. It therefore represents the interests of 650 agencies and 30,000 photographers across Europe.
This Statement represents the common opinion held by CEPIC members. It focuses on questions of particular interest to picture agencies and libraries. Beforehand it should be clearly stated that the complete harmonization of European copyright law is regarded as highly desirable. CEPIC holds the opinion that the existence of a competitive market represents the necessary condition for the maintainance of high-quality standards in the field of photography as well as for other visual works. Picture agencies and libraries all around Europe have preserved the European cultural heritage for years and will continue to do it in the Information Society.
The growing importance taken by visual works in the multimedia industry and on the networks of the Information Society cannot be sufficiently stressed. This is a point which, as it seems, the Commission has underestimated in its Green Paper. As a matter of fact visual works are economic goods, millions of which are produced worldwide each year for the use in print media as well as electronic products and on the information superhighway. Multimedia products are in fact dominated by visual works and music. The importance of photography and other visual works is likely to grow in the new digital era.
This means all the more that special legal attention has to be given to the protection of the moral right and that exclusive rights have to be reaffirmed. It is the assurance for the photographer and the picture agencies to get a proper remuneration, and so, be rewarded for the creativity of the work. This in turn guarantees continued high-quality production in the field of photography.
Picture agencies and libraries play and will further play a key role as marketing intermediaries between the photographer and the user/client. This role will grow in view of the internationalisation of the markets paralleling technological developments.
Last but not least, CEPIC believes that, on the contrary to individual licensing, „one-stop-shop“ licensing schemes do not meet the demands of the Information Society in photography and other visual works. Not only does individual licensing in its present form secure in the best possible way the moral right of the photographer and exclusive rights, but it also meets the needs of the multimedia industry. Whereas musical works integrated in a multimedia product, as well as literary works, are mainly, or all, pre-existing works, this is not the case for photographic works which include millions of newly produced, unpublished images. Those new images secure the originality of multimedia products. Their licensing can only occur on an individual basis. It is yet conceivable however that individual licensing may be possible under a centralised form, with the setting of common databases refering to the rightholder and/or its representative.
I. Applicable Law
At the outset it should be clearly stated that although this point is certainly of prime importance, legal consultation is however necessary to answer it with accuracy. Considering that the information superhighway is still developing and that at this stage future markets are insufficiently known, we believe that this question is not only too complex to be answered within the limited scope of this paper, but also premature. Further reflection paralleling the development of the use of visual works in the digital world is necessary.
Given this, some general remarks can be made.
From the Community’s point of view, the country-of-origin’s solution seems the most practicable solution within the Community, given that community law is harmonized and made transparent. With respect to photography, this means that exceptions to exclusive rights and moral right have to be harmonized as well as the concept of „originality“, „work of art“ etc. in photography.
However, because networks operate worldwide, these problems also need to be addressed at worldwide level. In this respect the WIPO could play an important role in setting common international standards. This gives rise to two critical remarks: 1) With regard to the technological/market superiority existing today in favour of the United States and Japan, EU law, or law from EU-Members, would not apply in most cases. 2) How can a user in a EU (or, as a matter of fact, a third) country be aware of the copyright rules applying to a picture sent to him from other European countries which do not belong to the Community or other regions of the world? The country-of-origin-rule may lead to infringment of copyright by ignorance.
We understand that the Commission’s interest is to preserve a clear state of law. However, it is also important that the protection of rightsholders remains intact. Only a close inspection of law systems outside the EU could give an answer to this.
2. Exhaustion of rights and parallel imports
It seems logical to keep as many rights as possible and therefore adopt the solution of the Rental Right Directive. CEPIC members think that systems providing for international exhaustion can coexist with others which do not.
2) Should it be reaffirmed that there is no exhaustion of any rights in respect to the supply of services?
This point is crucial to the photo industry. It should definitely be reaffirmed that there is no exhaustion of any rights in respect to the supply of services.
3. Reproduction rights in a digital environment
1) Do you think that the digitization of works and other protected matters should be covered by a reproduction right? Would exceptions to the exclusive character of this right be justified ? If so, what exceptions and why?
2) Do you think that private copying of digitised works and other protected matters .should be fully subject to this reproduction right .should be subject to this reproduction right, except that a single copy would be permitted should be authorized, with or without a system of remuneration?
The digitisation of works should definitely be protected by a reproduction right. There should be no exception to this rule. With respect to photography it means that this right should include reproduction of all or part of the image and should not include the right to manipulate the image.
A right of private copying should also be excluded. The definition of what private copying is on the network is at this stage too imprecise. However, if it is to be authorized, in what ever form, this should only happen with a system of remuneration.
At this stage, and on the contrary to clearly defined and specific uses that cannot be controlled individually, collective societies can play a useful role in gathering and distributing payments. However, the scope of their involvement depends on the stand and the development of technology. Technology itself creates new possibilities of solving the complexities of licensing in a digital environment and may in the future enable rightsholders to monitor and control their rights on an individual basis again.
4. Communication to the public Definition of communication to the public / private use
Definition of Communication to the Public
Visual authors have always held that a communication to the public exists as soon as several persons receive an image. Given this, the nature of the transmission or of the persons communicating (wether they know each other or belong to the same family) is not relevant. A public body should be regarded as a grouping of many persons.
Networks pose specific problems. The word "network" itself implies that many people are connected at the same time. A "chain communication" for instance should be regarded as a communication sent to many people and, according to the definition given above, a communication to the public. Also noteworthy is that on the Internet (yet not on on-line services controlling access to the network), the nature of the user cannot be checked.
In this respect, and from the perspective of picture agencies and libraries, an image originating from their files sent on the net by any user/client represents a communication to the public and must open the right to adequate remuneration.
4) Do you think that copyright and related rights apply to the act of connecting a server, which holds works protected by copyright, to the network? if so, which rights apply?
Yes. All rights apply.
7. Moral right
2) Could it be decided that problems of moral rights are to be resolved by contract? When material is placed on the network, for example, or even when it is digitized, the author might agree to certain types of modifications such as dubbing, subtitling, reformating etc.?
3) Could the very fact that the author has agreed to digitization be taken to give rise to a presumption that he has agreed to certain modifications?
4) Do you think that the acceptability of modifications could be defined in collective agreements between authors and performers on the one hand and producers and publishers on the other?
No. Moral rights should not be negotiated collectively.
5) Do you think that solutions should be negotiated globally or sector by sector? (Music, literrary works, images)
Solutions should be negotiated sector by sector in order to take the individuality of each sector into account and therefore ensure a higher degree of protection.
The photo industry is characterized by its marketing conditions. The photo sector produces millions of pictures continuously. Unlike the music or literary sector which provide pre-existing works (that is already published works, in book or disc form) to the electronic products industry, photo agencies can provide new works, which in turn implies an individual licensing system.
8. Acquisition and management of rights
1) What form should be taken by centralized schemes set up by rightsholders and managers? Would a „one-stop-shop“ system be desirable or indeed sufficient to deal with the demands of the information society. - 2) Should these centralized schemes be confined to issuing licences for the creation of multimedia works, or should they become general mechanisms ? 3) Do you think that competing schemes can coexist in the same Member State, in the Community as a whole or at the world level ? How could such a competition work in practice?
This problem represents a vital point for the whole photo industry. The survival of the latter depends on the solutions that will eventually be worked out on a legal basis and implemented into Member States.
Collective schemes are definitely not desirable in the photo industry. Individual management of rights remains possible in the Information Society.
A close analysis shows that centralised schemes would not be sufficient to meet the demands of the Information Society. Oversized administrative bodies are formed, devoid of the necessary know-how in the management of artistic works and focusing on the distribution of fees. Because they use flat tariffs and issue blanket licences, centralised schemes can only lead in the long run to a reduced protection for rightsholders.
This particularly applies to the field of photography where licences are negotiated on an individual basis, ensuring a high protection of the moral right of the author as well as an appropriate remuneration for each single picture. Agencies manage millions of photographs. How could a single body cope with this amount? The present system has existed for years and has proved its efficiency.
Furthermore the particular marketing conditions of the photo industry are not taken into account by such schemes. Photo agencies and libraries market millions of unpublished images produced yearly (first use) and represent therefore a crucial link between the photographer and the user. By finding a market for visual works and ensuring that a proper remuneration is paid, they actually support the creativity and vitality of the production. They are not beside the production system, they are within it. A collective body could not play such an active role.
Competing schemes can coexist. Collecting societies should be restricted to areas in which individual control is unfeasible such as mass distribution or cable transmission. Other schemes (agencies in the photo industry) should continue to negotiate licences on an individual basis. Central systems are however conceivable: rightsholders would gather their information into a central database allowing licensing on an individual basis. Several competitive central systems can coexist.
Against the argument of the multimedia industry claiming a lack of transparency of the market and therefore difficulties to track down the rightsholder, it is important to point out that the number of agencies is not so high as to lead to a loss of transparency of the market. CEPIC represents some 650 agencies all over Europe. The total number of European agencies amounts to l,000 at the most. From those agencies, only 20% (approx. 200 agencies) provide probably 80% of all the images. The amount of rights managed do not constitute an argument : as a matter of fact print media such as dictionaries and encyclopedia have always cleared many thousands of rights.
4) Assuming that the Information Society will operate on a worldwide basis, do you think that the licences granted by a scheme of this kind should be worldwide licences? 5) Do you think that licences for a more limited territory will continue to be a possibility?
The nature of the Information Society makes the granting of worldwide licences a necessity for certain electronic publications if the product is to be marketed throughout the world. Prices and conditions of those licences should be based on national decisions. It is the opinion of some members that licences for a more limited territory could nevertheless remain possible and practicable.
6) Do you think that alongside the existing competition rules the Community legislation should lay down guidelines for collecting societies or centralized management schemes?
The only conceivable legislation would be a legislation protecting competition in the market, forbidding the emergence of monopolies. Otherwise, no regulation of the market is desirable.
9. Technical systems of protection and identification
Protection and identification
1) Do you think the Community, in co-operation with the Member States, should make provisions for legal measures which guarantee compliance with: identifying tags; standards for protection against private digital copying ; other technical systems 2) What sort of information should the identifying contain? 3) How should it be determined wether works and other protected matter are in the public domain?
It must be clear that any kind of sophisticated protection, if it is to be effective, is rather expensive. From the point of view of SME’s in general and of photo agencies in particular, many cannot afford to set a protection system on an individual basis. From the point of view of multimedia producers, such protection systems would put pressure on their costs, and therefore on the consumer price.
However, if a standardised system of identification is to be implemented, it should include :
- identification of the work and location of the original;
- identification of the rightsholder including his name, nationality and life datas;
- identification of the licensees or managing parties;
- source of the work (on-line service, database etc.).
All other information that may become rapidly out of date is superfluous.
All works, also works that have fallen into the public domain, should have the same kind of identification. They should remain available on demand (no lock) although at a lower image quality.
3) Should works and other protected matters originating in non-community countries be prevented from entering the Internal Market if it does not incorporate systems of identification compatible with those recognized in the Community?
This is impractical as this would prevent the entrance of 60 to 70 % of world photography.
5) Should the importation and marketing of any equipment not containing such systems be forbidden?
The importation and marketing of any equipment not containing such systems should be forbidden.
6) Do you consider that the eventual effectiveness of technical systems of protection depends upon the creation of international standards?
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