The meeting has been web-streamed and can be followed on the Commission’s web-streaming page at:
https://webcast.ec.europa.eu/copyright-stakeholder-dialogues-16-01-20
On January 16th, the European Commission opened the year with the 5th of ist series of meetings within Art. 17-10 of the EU Copyright Directive. This is the third and last phase of the Stakeholder Dialogue.
Ahead of the meeting, the European Commission had provided a catalogue of questions. The questions are worded in the legal jargon of the Directive, nevertheless it is the information extremely concrete and precise information the EC is after on how a system of authorization and identification will work within the implementation of Article 17.
The main takeaways from the meeting are the following:
• Licensing and VRT. There is an agreement within the “visual sector” that in terms of licensing to the platforms (“authorization to the OCSSPs”) Direct Licensing and Collective Licensing are not exclusive and that VRT (Vision Recognition Technology) will be necessary for licensing to take place effectively.
• Extended Collective Licensing. CMOs regrouped within EVA will propose ECL (Extended Collective Licensing) to the platforms, using their own VRT. How ECL will work in practice is not clear as ECL has no cross-border effect. According to Carola Streul, Secretary General of EVA, the problem may be solved through cooperation agreements between CMOs. It is also clear that picture agencies will be welcome to participate in the ECS schemes. In Germany negotiations between Bild-Kunst and BVPA are already in progress.
• Getty Images is keeping all cards on the table with regards to which licensing scheme they will ultimately favour but insist that platforms should carry the costs of the VRT, with platforms developing their own Content-ID system. While Getty Images expects platforms to invest into VRT and carry out the matching, collecting societies have started investing into VRT and wish to keep "control".
• The point of view of CEPIC. CEPIC represents a variety of players, of all sizes and with different business models, and national interests. A licensing system should accomodate to the fluidity of the market while providing the highest level of legal security to licensor and licensees. With the use of visual recognition technology, a system could ensure precise identification of rights holders, enabling picture agencies to stream revenue received from OCSSPs back to the individual right owner/photographer (in line with Art. 18 and 19 of the DSM Directive). Direct licensing between OCSSPs and agencies or independent third-party image aggregators plus matched based collective licensing via collective management organisations (CMOs) should be included to allow picture agencies and rightsholders the best option for them whilst creating a transparent competitive environment driven by market value. Specifically:
- Extended Collective Licensing is a possible form of collective licensing, not a necessary one ;
- The cost of technology to create a transactional VRT licensing system must be funded by the OCSSPs as part of the required "best efforts in accordance with high Industry standards of professional diligence";
- In the event VRT is provided by third-parties, OCSSPs must ensure as a minimum "Best Efforts" requirement that their platforms are open to enable visual image recognition matching ;
- Solutions might be worked out on a platform to platform basis.
FOLLOW-UP: The EC has asked for more technical details on how this can work.
- Getting access to the platforms for identification and/ or control
- Providing reference files (jpeg or fingerprint possibly with associated metadata)
• The point of view of the Platforms. Platforms (“OCSSP” in the Directive) will do anything and will test any legal argument to avoid paying one cent to RH. To be noted is their absence to the “Dialogue”: they only had two representatives: EDIMA (representing the main platforms including GOOGLE and Facebook) and YouTube.
• YouTube highlighted the “business model” argument presented at the Third SH meeting in reference to the definition of OCSSP provided for in the Directive. They say that while they have developed a Content-ID for Music and AV, it would be “disproportionate” to require from them and contrary to their business model to develop the same for images. Referring to the definition of "OCSSP" provided within the Directive, notable in Recital 62, an OCSSP should:
- play an important role in content market
- compete with other online services for same content and audience
In other words, when determining what "Best Efforts" are and in consideration of the "proportionality" criteria, the type of works should be considered, in relation to the purpose of the service. The objective of the Directive being to establish a "well-functionning functioning marketplace place for copyright" OCSSPs would be liable for acts of communication to the public only if their platform is not in direct competition to other platforms for same content and audience.
• In terms of defining "Best Efforts" EDIMA requires that "seeking an agreement" should be considered as "best effort", but not "concluding an agreement". Also platforms should not be required to seek permissions from all Rights Holders.
The point of view of CEPIC: Needless to say that this reading of the DSM Directive is inacceptable for image rights holders. Not only does it discriminate between rights holders but it is contrary to the overreaching goal of the Directive to create a "well-functionning market place for copyright". Competition arguments should not be used to delute the "Best Efforts" requirements anchored in the Directive.
• The point of view of the Consumers. The goal of the consumers is to avoid "preventive measures" i.e. keeping content down. They consider "exceptions and limitations" to be "Users Rights" situated higher than Copyright on the scale of Rights. Consumers are therefore:
- Keen to get precise guidelines published
- In favour of collective licenses
- In favour of a public database of works
- Expect rights owners to provide "legal justification" of ownership for removing a content online
Weakness: In terms of justification, they keep expressing the same concerns without providing any evidence beyond anecdote (individual examples and expression of the “fear” of users). However, they have a great influence on the EC team. Questions regarding Consumer Issues (the respect of exceptions (“memes”, over- blocking and redress mechanism) will be handled on February 10th.
https://webcast.ec.europa.eu/copyright-stakeholder-dialogues-16-01-20
At 10.28 H Getty Images and CEPIC on "Best efforts", followed at 10.48 H by EVA on Extended Collective Licensing
From 10.52 H YouTube and EDIMA develop their argument on how the business model of the platform, in consideration of the proportionality criteria, needs to be taken into consideration.
At 11.17 H (and after protestation from other stakeholders in the room on the reading of the Directive by YouTube ...) the EC asks YouTube to clarify their position using the example of the images of Sebastian Salgado.