CEPIC Amendments for strong indiscriminatory Copyright
Ref.: Trilogue, 11/02/2019
Distinguished negotiators of the Trilogue on Copyright Directive,
We are writing to you as representative of the visual industry. CEPIC, Center of the Picture industry, represents the interests of hundreds of picture and news agencies as well as historical archives in Europe whose core business is the licensing of pictures created by more than 250.000 professional photographers they represent. Amongst CEPIC members are global players such as Getty Images, Magnum Photos and Alamy, fine arts libraries such as Bridgeman Images, historical archives such as Roger-Viollet and Fratelli Alinari, news photo syndication such as Le Figaro, news agencies such as Belga, TT and DPA as well as representatives for European trade associations AEAPAF, BAPLA, BLF, BVPA, SAB, and SNAPIG.
We hope you would be prepared to support the directive with the caveat that the following amendments to the text are implemented.
Our main and strongest objection is that there should be no discrimination against one particular work over another, that affects the livelihood of a creator and creative rightsholders.
Many creative professions, including photography are unduly penalised in the current text. If photographers and related rights holders are to continue generating incomes, which spans photographing works across a whole range of sectors both online and offline, then they must be able to unimpeded. It would be a catastrophe for an industry that has long been subjected to unequal treatment online against the backdrop of the enormous wealth accumulated by OCSSPs.
Our Red Lines :
Recital 21 – Row 45 a.
Any provision that discriminates one work over another and/or one profession over another is incredulous and unacceptable. The newly proposed last recital of Art. 21 should be completely deleted. While we have been supportive of provisions promoting the work of cultural heritage institutions in their work of preservation and conservation and providing access to cultural heritage, the recital goes much further. It is forgetful of the contribution of private owned libraries and their contribution, at no tax-payer cost, to the preservation of cultural heritage and its promotion in the wider public. This provision is foremost discriminatory to photographers, freelancing and commissioned to photograph works of art for cultural institutions.
Delete last paragraph of Recital 21: “The expiry of the term of protection of a work entails the entry of that work in the public domain and the expiry of the rights that Union copyright law provides to that work. In the field of visual arts, the circulation of faithful reproductions of works in the public domain contributes to the access to and promotion of culture (or access to cultural heritage). In the digital environment, the protection of these reproductions through copyright or related rights is inconsistent with the expiry of the copyright protection of works. In addition, differences between the national copyright laws governing the protection of these reproductions give rise to legal uncertainty and affect the cross-border dissemination of works of visual arts in the public domain. Therefore it should be clarified that certain reproductions of visual arts in the public domain should not be protected by copyright or related rights. This should not prevent cultural heritage institutions from selling reproductions, such as postcards.”
Recital 38b - Row 83
Second paragraph - Rightsholder information - “among other factors, the size of rightsholders and the type of their works and other subject matter”
Delete “size of rightsholders” – There is potential for discriminatory treatment against smaller rightsholders such as SMEs. The size of rightsholders and the type of their works means there would be a strong possibility of avoiding/ignoring image rightsholders who on the whole tend to be SMEs and have copyright content infringed across a broader spectrum. A significant majority of rightsholder within our Image Sector would be adversely affected by this, particularly as SME’s. The initial reason for Article 13 was to provide a fair marketplace for all rightsholder not merely for the largest.
Last paragraph/last sentence - “a number of elements should be considered, such as…avoiding the availability of different types of content” [Part of 13.4a - only where it refers to the types of works]
Delete “different types” – There should not be ‘one rule for one type of content over another’ it should be the same treatment across all types of content. Again it’s discriminatory, essentially all rightsholders types of content should be considered.
Legislation should apply to all rightsholders of all sizes and all types of content, irrespective of the size of the industry affected.
In Recital 38b (final paragraph) – Row 83 , delete the words “...or when no notification concerning the removal or disabling access to specific unauthorised works or other subject matter has been provided by rightsholders”.
This is because a rightsholder should not need to first provide notification concerning “removal or disabling access” in order for a service provider to be obliged to license their uploaded works. It should be sufficient that a rightsholder at any time provides the “necessary and relevant information on their specific works and other subject matter” (as provided earlier in the sentence). Moreover, more often than not, considering the walled garden nature of many service providers’ apps and platforms, it is simply not possible for a rightsholder to first identify its works stored by a service provider in order to notify of removal/disablement. Only the service provider has full visibility to the works that it stores.
Recital 38(d) - Row 85
First paragraph, line 6 - Delete words: “or when the revenue generated by their uploads are not significant in relation to the copyright relevant act of the users for which they are covered”
This is because even an overtly commercial purpose such as a major corporation uploading advertising material containing an unauthorised copyright work would not in itself generate revenue directly from the uploads, yet the commercial license fee normally charged for such use by a rightsholder would inevitably be far greater than any licensing revenue it could expect to receive from a service provider under Article 13 for that upload. The prior included words, “without any profit making purpose”, are sufficient to define commercial purposes in this context.
Article 13(4a) - Row 237 A)
UGC - A new right should not be created from exceptions
The uses listed already appears as ‘optional’ in the INFOSOC Directive Article 5(3)(d) and (k). Otherwise the new wording of Article 13(5) may make the copyright exceptions in Article 5(3)(d) and (k) de facto mandatory for Member States to ratify.
Therefore, the proposed text on UGC goes too far as the wording creates a “right” out of the exceptions in the Infosoc Directive. If such language is to be maintained at all (unnecessary due to observance of copyright exceptions elsewhere in the text), we suggest that the wording be changed from “users shall be allowed” to “users continue to benefit” from the exceptions of Infosoc Directive of quotation, criticism and review, pastiche or parody when they reproduce parts of works or other subject matter under those exceptions.”
CEPIC has shown consistent support for the intentions of the copyright directive, and recognises the enormous efforts made by the European Commission and by MEPs. We believe adopting these amendments is a crucial opportunity to show continuing support for:
In order that we can continue to grow, innovate, and reinvest in our visual cultural Heritage
On behalf of CEPIC members,
Yours Sincerely,
Sylvie Fodor
CEPIC Executive Director