The last meeting of the “Stakeholder Dialogue” took place on Monday 10th February.
Webstream: https://webcast.ec.europa.eu/copyright-stakeholder-dialogues-10-02-2020
The 6th meeting was an informative meeting. It concerned over-blocking of “legitimate content” i.e. content falling under an exception to copyright and how to avoid this.
Main take-aways:
1. Not all Users organisations are as extremist as those around Julia Reda. Some common grounds may be found.
2. CMOs still need to learn to use VRT to allocate revenues from platforms in a transparent way and the most fairly as possible.
• Should Users be allowed to contest blocking up-stream and if they are should disputed content be taken down or stay up the time the dispute on a potentially applicable exception is resolved? Communia (Paul Keller) made an interesting and concrete proposal of a complaint and redress mechanism that could work for users. In their vision, users uploading content would, in the case of a match with protected content coupled with a “blocking rule”, receive a notice with the possibility to provide a “declaration of good faith” explaining why in their view the uploaded content is protected under an exception. The immediate ensuing and pressing question from the European Commission was whether this content should stay up or come down, the time of dispute resolution.
A largely shared view within the picture industry is that content contested on the ground of a possible applicable exception should remain up the time the dispute is resolved. This view is not shared by representatives of rights holders from the video, music and sports sector. They were all opposed to the solution presented by Communia: they argue that it stretches the interpretation of the Directive and this is not the role of the EC when publishing guidelines to re-interpret the Directive. EVA too is not open to allowing consumers to contest the blocking of content upstream, even in the event when an exception or limitation may apply. They are afraid that the system may be abused of and leads to additional legal costs.
Legal and technical considerations around this issue dominated the discussions of 6th meeting.
• Extended Collective Licensing – How can it work for picture agencies? Vincent van der Eijdn, president of EVA, made a short presentation in which he pointed out that no Identifier existed for images, implying thereby that only blanket licenses are possible in this sector.
While this may be true, this argument used in favour of blanket licenses might be stretched to justify an alleged impossibility of identifying rights holders and determining the use of their images in a precise way with the use of recognition technology. Lack of transparency of collecting societies has long been a point of controversy in their relationship with picture agencies. It was therefore important to precise that, although it is true that there is common identifier for images, the fingerprint technology is reliable and the image file itself may be used as an identifier.
CEPIC members are not opposed to collective licensing as long as a down-stream identification of rights holders takes place in order to ensure a transparent allocation of revenues. Picsel in the UK has brought more money to BAPLA members than DACS, simply because they are using vision recognition tools and are not basing distribution on flat fees as DACS or/and CLA.
This raises the issue of “discrimination” between EU member States. In Germany, France or the Netherlands, collecting societies will include picture agencies in their membership and thereby in the distribution of revenues via an ECL scheme. Unfortunately, this perfect scenario will not be able to be played everywhere in the EU. If nothing is done against that, the next fight to close the “value gap” will not be one opposing visual rights holders and online platforms but one opposing picture agencies, photographers and collecting societies.
Next steps for CEPIC:
1. Coordinate CEPIC’s position with members
2. If necessary, organise a meeting asap with EVA to see whether they can work out guidelines.
Next steps for the EC: The Commission will now "reflect on the input received and on a way forward". At the next meeting at the end of March – March 30th - they will "share initial views on the content of the guidelines".