Dear all,
as Alfonso reported in an earlier mail, we had a meeting with the European Commission on 13 February. The meeting was with the Cabinet of Maria Gabriel, Commissioner for the Internal Market (includes copyright issues). Ms Gabriel was nominated to this position by Mr Junker after Mr Oettinger had been promoted to the Budget of the EU.
We met with:
Manuel Mateo, whose porfolio in the Cabinet includes:
and Sarah Jacquier, Legal expert/ national adviser at the European Commission. She was part of the team drafting the DSM directive and is now following the consultations at EP and EU Council level.
The EC is still involved in the making of the Directive. If the text adopted by EU Parliament and Council is too far from their original version or from its spirit, they have the possibility to withdraw the text completely.
It was a good meeting.
It was a good meeting is the sense that we can count on the Commission's support in the Framing issue provided we provide the correct legal argument.
That is tough.
Sarah Jacquier agreed that the amendments put forward at the European Parliament are insufficient.
She pointed out that the compromises put forward by the presidencies of the European Council do not cover "Framing". She indicated how proposing amendments to Article 11 might be possible, as proposition covers concepts such as "length", "originality", economic relevance" or "substitution" of content.
This is an important information and I will work with the relevant trade associations in Brussels to make propositions: EVA, the European Federation of Journalists and the European Publishers Council.
Follow-Up telephone call with Sarah Jacquier
With Sarah Jacquier, we now have a friend at the European Commission and a direct contact. She contacted me last Friday on the CEPIC's announcement on the Getty Google deal, as it had been published in MLEX in Brussels. I explained to her how we had been careful to separate copyright and competition issues: But that we were exploring all means to solve the high piracy rate in online photography. She asked me to send her as much information as possible. She will circulate any relevant information to her colleagues in the Commission.
Other positive signs
As Martin's observation this morning rightly shows, other industries are concerned and hurt by Framing. We must join forces. We have built alliances with collecting societies for visual arts, with photo-journalists associations, with publishers associations. Getty Images will continue supporting our efforts to change Framing legislation. Museums should be contacted and press agencies.
In the US, a court decided that last week that embedding a tweet (in this case a photo) should be considered as a copyright infringement.
https://www.eff.org/files/2018/02/15/goldman_v_breitbart_-_opinion.pdf
Most articles on line are quite negative about the decision but they are written by High Tech friendly magazines. The decision itself is very plain on how:
- the defendant "took active steps to put a process in place that resulted in the transmission of the photos"
- jurisprudence providing for a "server test" is not convincing and not in line with US copyright legislation
- the case for a "devatating economic impact" on photography was stronger than the one of a "chilling effect" on the internet
Conclusion
We are therefore making small steps in the right direction. It is a slow process to make courts and legislators understand that the technic referred to as "framing", "embedding" or "in-link" is a special form of hyperlinking whose recognition as a copyright relevant act would not bring down the internet!
Sf, 20.02.2018
FRAMING - Where Are We Now?
Main points on Framing
Framing or Embedding allows the reproduction of content online (photography or text) with a deep link. Due to unclear EU legislation and jurisprudence, Framing is not considered as a "communication to the public", therefore is not covered by copyright. Framed pictures are free pictures. Also in the US, Framing is not covered by copyright.
The draft EU DSM directive does not provide for any provision against Framing. The provisions on the so called "Value Gap" in Article 13 cover content "up-loaded by the users" and "stored". Art. 13 is very controversial: it may not be adopted or adopted in a weakened form.
Only one amendment clearly referring to Framing has been introduced to the "Committee on Legal Affairs" (JURI). It is a weak amendment as it only refers to one Recital. Unfortunately, Constance Le Grip, the French MEP who has put this amendment forward has now left the European Parliament. This weak amendment has no backing.
Another French MEP, Jean-Marie Cavada, has proposed amendments covering "previews" in search engines. If these amendments are adopted, collecting societies for visual artists will be allowed to charge for the previews in search engines. This may mean some revenue for some photographers, but not for Picture agencies.
Compromises amongst MEP are difficult to reach: vote on the amendments has therefore been postponed from one meeting to the next. At the moment, the vote in JURI is scheduled on 27 March. This leaves some time for more lobbying: more meetings, more consultations, more letters ...
CEPIC, EVA and the European Federation of Journalists in Brussels have joigned forces Framing should be considered as a communication to the public. A common letter is in preparation. We are also pursuing consultations with the European Commission: a meeting with the copyright unit of the EC is scheduled on 13 February (See Agenda below).
sf