Category Archives: Education

CEPIC clarification on the Copyright DSM Directive

It is still time to reach a balanced solution for a fair value sharing in a digital environment

On O5 July 2018 the European Parliament voted against the negotiation proposed by the Legal Affairs Committee, adopted on 20 June 2018, for the EU Copyright Directive proposal.  CEPIC regrets this rejection following four years of tireless work with EU institutions but will continue to work towards a balanced solution for a fair online marketplace for the creative sector and against online piracy.

Giving a free pass to platforms to override copyright kills creativity. Copyright is not against freedom of expression and innovation but, to the contrary creativity is the best nexus of cultural diversity and freedom of expression.

Images online

CEPIC represents hundreds of picture agencies and hundreds of thousands of photographers. CEPIC’s members have been digitizing visual content from the advent of the Internet. They license the resulting digital asset for all kinds of commercial uses, to newspapers, magazines, advertising, broadcasters, off and on-line, etc.

Images are widely shared online via search engines, social media and other aggregators and have highly contributed to make the Internet the vibrant and engaging place we enjoy today.

However, we have seen, over the last decade how heavy weight social media platforms (online content sharing service providers), which have built their success upon the posting and sharing of unlicensed images hide behind safe harbour provisions to avoid fairly compensating rights holders  for the use of their content and shift the liability onto the individual user. These platforms have contributed to fuel the internet with unlicensed content and deprive copyright holders of a stream of revenue.

What is referred as the “value gap” for most copyright material such as music and videos is more accurately called a “value block” for images as there is currently no opportunity for image providers to participate in any type of revenue scheme online. The situation of image providers is exacerbated by the practice of intermediaries distributing user up-loaded content by facilitating “framing”, or embedding.

According to CEPIC members 85% of images shared online by visual search systems are unlawful copies. Once uploaded or framed legitimately on a website, an image will be shared thousands of times leading, according to CEPIC members, to an economic harm of a couple of thousands euros per image. This free “availability” of images has been one major factor leading to decreasing value of images and to the demise of an entire sector.

Copyright online

CEPIC therefore welcomed the provisions in the proposed Copyright Directive which promotes effective licensing agreements between platforms and right holders with the possible, but non-mandatory implementation of effective technologies. It should be stressed that the draft Directive has gone through a long-detailed review of two years and has led to a positive vote of the Legal Affairs Committee on 20 June 2018, taking into account the conclusions of four other Committees.

We therefore regret the fact that MEPs have been targeted by a coordinated campaign of misinformation against the text of article 13 proposed by the JURI Committee, in a scale rarely seen before and in a clear attempt to obstruct the progress of the legislation that is vital for the protection of copyright online. Valid decisions cannot be based on scaremongering and mass intimidation. Clearly this situation calls for clarification.

If the Directive is approved, it will provide a better functioning online marketplace which will aim to:

–          Reinforce the position of right holders to negotiate licensing agreements and be remunerated for the online exploitation of their content on sharing platforms;

–          Fix the value gap by sharing the revenues to creators from the use of their content in online platforms;

–          Create a level playing field in Europe’s Digital Single Market which will stimulate creation of high-quality content;

–          Improve transparency online and give more control to creators by allowing them to determine whether, and under which conditions, their work is used online.

It will NOT:

–            End popular memes, parody or pastiche

Caricatures, parody or pastiche are protected by an optional exception – under Article 5(3)(k) of the 2001 InfoSoc Directive, allowing reproduction and communication of such content to the public and guaranteeing the authors’ freedom of expression.

Therefore, Article 13 of the proposed Copyright Directive will not affect the application of this exception. It only creates an obligation at the level of online platforms and not on their users who will be able to access and post their content.

The proposed Copyright Directive only adds the possibility for authors of memes or parodic content to tackle over-removal by online platforms through the mandatory redress mechanism included in the proposal which means that in case parodic content is removed, the creators of this content will be able to contest the removal and ask the content to be published based on the parody exception in place.

–            Filter the Internet. The proposal does not impose mandatory up-load filters and censorship in the internet.

In fact, the European Data Protection Supervisor has concluded, in its formal comments on the text of Article 13 proposed by JURI report 29.06.2018, that the balance of fundamental rights is preserved by Article 13, considering that the text requires Member States to ensure:

o   that any measure to be put in place must be “proportionate”;

o   the balance between fundamental rights of users and rightholders is preserved and;

o   that no general monitoring obligation of information transmitted or stored is imposed.

The proposal is not targeting users and their capacity to upload content in the internet. It targets large platforms, which have become major sources of access to copyright-protected content to collaborate with rightsholders. These platforms are required to put in place “effective and proportionate measures…in collaboration with the right-holders” to allow the functioning of agreements reached on the use of copyright-protected content, or to prevent the availability of unauthorised content if right-holders prefer not to have their content available on such platforms.

In fact, platforms, such as YouTube already use content ID technology to identify copyright protected content which allows authors to be paid when their content is used online. Other platforms, large and small, resort to third party technology to implement a “Take Down and Stay Down” service. We simply ask that this is standard across all online content sharing service providers.

–          Add an additional burden and barrier of entry on start-ups and other small businesses:

o  Firstly, the directive only targets platforms “with large amounts of user up-loaded content”

o  Secondly, the measures implemented are requested to be “proportionate”

We are facing a crucial time for the future of the creative industry as the Copyright Reform is being voted on. Copyright laws need to be modernised in order to protect the livelihoods of creators.

We will stay mobilized to start negotiating in order to lift all uncertainties left by the overwhelming misinformation campaign orchestrated by those opposed to the Copyright Directive and provide all information for a fair and informed vote on September 12th, 2018.

 

About CEPIC
CEPIC is a European not-for-profit trade association in the field of image rights. CEPIC was founded in 1993 to present a unified voice to advise and lobby on new legislation emerging from Brussels. It was registered as an EEIG (Economic European Interest Group) in Paris in 1999. As the Centre of the Picture Industry, CEPIC brings together nearly 600 picture agencies and photo libraries in 20 countries across Europe, both within and outside the European Union. It has affiliates in North America and Asia. It has among its membership the larger global players such as Getty or Reuters. Through its membership, CEPIC represents more than 250.000 authors in direct licensing.

For more information contact:
Sylvie Fodor
Executive Director
s.fodor@cepic.org
+ 49 177 2332 514
www.cepic.org

Copyright Law Rejected in EU Vote

A controversial bill in the EU seeking a rewrite of Europe’s copyright laws giving creators more power to restrict how their content is distributed has been rejected by lawmakers.  The vote was 318 against the legislation, known as The Copyright Directive, while 278 voted in favor, and 31 abstained, taking the reforms back to the drawing board.

The reforms to the law had two elements deemed particularly controversial by critics, Article 11 and Article 13.

Article 11, also called “link tax,” would force internet giants such as YouTube, Google, and Facebook to pay for using news snippets from publishers on their platforms.

Perhaps most contested is Article 13, which would require companies to monitor all content uploaded online to their platform to check it for copyright infringement. Critics said this could lead to the removal of internet memes, which often use copyrighted images.

The New York Times has a comprehensive article about the bill here.

 

General Data Protection Regulation Form

The General Data Protection Regulation, GDPR,  that goes into effect on May 25, 2018 will require companies that do business in the EU to provide a form to the companies that they are dealing with.  This regulation strengthens the privacy rights of individuals living in the European Union (not only E.U. citizens) and applies to anyone who does business with those persons, even if that simply means collecting data for marketing purposes.

Here is a form that you can use to facilitate this process.

General Data Protection Regulation Explained

There is some confusion over the GDPR, the General Data Protection Regulation,  that goes into effect on May 25, 2018. This regulation strengthens the privacy rights of individuals living in the European Union (not only E.U. citizens) and applies to anyone who does business with those persons, even if that simply means collecting data for marketing purposes.

Nancy Wolff, DMLA Counsel, has written a comprehensive explanation of the regulation that you can read here.

Importance of Net Neutrality

Net neutrality means that internet service providers should enable access to all content and applications regardless of the source, without favoring or blocking particular products or websites.  Seems simple, right?  Why has it become such a major political issue?

The Senate voted today to pass a measure that would repeal changes to net neutrality rules that were recently adopted by the Republican-controlled Federal Communications Commission. Chances are that the House won’t approve this repeal.

Why is Net Neutrality so Important?  In an article written by Tiffany Li,  an attorney and resident fellow at Yale Law School’s Information Project,  a big picture of the impact is presented.

 

GDPR Explained

by Nancy Wolff, DMLA Counsel

You may have noticed an increase in urgent messages from companies updating their privacy policies in anticipation of the upcoming deadline to become GDPR compliant. “GDPR” refers to a new European Union law – the General Data Protection Regulation that goes into effect on May 25, 2018. This regulation strengthens the privacy rights of individuals living in the European Union (not only E.U. citizens) and applies to anyone who does business with those persons, even if that simply means collecting data for marketing purposes.

Privacy is becoming more and more of a global issue, and the E.U. is leading the way in attempting to protect personal data. The policies behind the GDPR aim to increase transparency, in terms of both what personal data is collected and how it may be used, and the accountability of those who maintain and use that personal data. The regulation is complex and extensive and includes steep penalties for those who are not compliant – up to €20,000,000 or 4% of global revenue from the previous year, whichever is greater.

But before you think the solution is to simply exclude all European residents from your client base, or have a panic attack, it is important to recognize that the E.U. “privacy police” are unlikely to expect immediate full compliance or have the operational capacity to scrutinize every business transacting with E.U. residents. Your goal should be to reevaluate your privacy practices to be as compliant as possible given your type of business and your use of personal data.

The stock industry is not a business that primarily engages in personal data collection. The purpose of the industry is to aggregate and license content on behalf of contributors to those who legitimately incorporate it in their publishing, marketing, or other media works. Stock companies should continue to use best practices regarding the security of personal data, obtaining proper consent from those who they send marketing communications, and updating privacy policies to accurately reflect how information is used and how an individual can contact someone in your company about what personal data is collected. (A new sample privacy policy that can be modified to comply with your company’s practices will be provided shortly). There is a common understanding in recent literature published about the GDPR that many industries will be provided a soft launch period, despite the fact that the regulation has been published since 2016.

At its highest level, the GDPR requires any company who collect personal data to maintain it securely, and to provide transparency in what ways it may use the personal data. The definition of “personal data” is quite broad and includes anyinformationthat relates to an identifiable person. See GDPR, Art. 4, Sec. 1. The individuals whose data is collected are called “data subjects.” See GDPR, Art. 4, Sec. 1. Those who collect data are called “controllers.” See GDPR, Art. 4, Sec. 7. Those who process data for controllers are referred to as “processers.” See GDPR, Art. 4, Sec. 8.  Any content library with contributors, distributors, customers and model releases, is a controller and needs to keep its records that contain personal data secure.

The first step toward GDPR compliance is to audit your data practices. Make a list of what personal data you collect and how you use that data. Then, when you update your privacy policy, you can use that list to make sure that you have provided adequate disclosure of how you use the personal data.The regulations require that the notice is not written in legalese but inclear and plain language.In general, you should not collect or retain information that you have no legitimate business purpose to collect.

The privacy notice should address the following to sufficiently inform the data subject:

  • Who is collecting the data?
  • What data is being collected?
  • What is the legal basis for processing the data?
  • Will the data be shared with any third parties?
  • How will the information be used?
  • How long will the data be stored for?
  • What rights does the data subject have?
  • How can the data subject raise a complaint?

Further, if someone from the E.U. requests information about the personal data you collect, you have an obligation to respond to requests within 1 month and may not charge the data subject for responding. You also need to give the E.U. resident the ability to update that information and the ability to remove the information if there is no legitimate reason to maintain that personal data.Additionally,any data breach of personal information must be reported within 72 hours.

Individuals subject to the GDPR can enforce these new rules, as it provides for a private right of action, but there must be some material damage.

In terms of marketing to customers or potential customers in the E.U., the consent rule under the GDPR is an “opt-in” instead of “opt-out” rule. Consent must be very clear and cannot be buried in terms and conditions. There should be a separate check box for marketing and promotions and for accepting terms and conditions.

It is too soon to know how these new regulations will impact the image licensing industry. To some extent all photographs of recognizable people contain personal data. Some have asked whether the new “right to be forgotten” will affect the industry and whether models or subjects could request that images be erased or consent withdrawn. While these regulations have not been officially interpreted yet, this kind of overly broad interpretation would be contrary to the purpose of the regulations – which is to address privacy issues with data collection.

The regulations do acknowledge that there are legitimate business reasons to retain certain personal information. The licensing of editorial as well as commercial images by image libraries serves an important business and newsgathering function and model releases are required to be retained for many business and legal purposes, and are necessary to produce in the event of a claim. Further, the “right to be forgotten” is not absolute and the regulations acknowledge that other rights, such as the right to freedom of expression and information, including processing for journalistic purposes and the purposes of academic, artistic or literary expression must be reconciled with this right. These exceptions should insulate the licensing of images and restrict persons from demanding that images be removed.

This article is intended to be a broad overview of this new regulation and not a complete description of the GDPR or any company’s obligations. You are encouraged to seek further advice and there are many websites offering insights. Importantly, the regulations have not been interpreted and we will continue to monitor this topic. The GDPR will be included in the DMLA legal panel at the DMLA Annual meeting in October.

Keep Fighting for Artists’ Rights!

The letters that are being sent are starting to make a difference so don’t stop!

More members of the House Judiciary Committee need to be paying attention to H.R. 3945 – CASE Act!

Keep up the fight by sending a letter each week! The more we send, the closer we’ll be to getting the copyright protection YOU deserve!

You can find your a sample letter and your representative here.  It’s easy.  Just do it!

SUPPORT NEEDED FOR CASE ACT!!

I’m sure that you’re aware we been working for the last few years with a group of other associations on what is now the CASE Act (HR#3945) the SMALL CLAIMS TRIBUNAL BILL, a bill by Representatives Hakeem Jeffries (D-NY), Tom Marino (R-PA), Doug Collins (R-GA), Lamar Smith (R-TX), Judy Chu (D-CA), and Ted Lieu (D-CA). The bill is ready for write-up and we are now awaiting a date for that to happen based on a couple of issues still being worked out, but it looks like it could be as early as next week.

It has come to our attention that so far only about 2200 letters have been received by the Copyright Alliance platform which is less than 5 letters per member of Congress–barely even noticeable. We have been told by the players on the Hill that the passage of this bill will come down to grassroots support and this is a very poor showing. They need to see that we are behind this important bill for creators!

We need every member and their photographers and their adult children, friends and neighbors to send letters to their representatives!

I am asking you to send out a plea to your staff and photographers to help us get this bill passed by contacting their representatives. It is really easy. There are letters ready for them to use here. If we fail and small claims doesn’t make it through this year, it will be very difficult to get it passed in subsequent years. THIS IS OUR CHANCE! Please help all creators protect their copyrights!

Thanks so much for your help!

2018 DMLA Conference Help Wanted

DMLA Conference 2018 Los AngelesDear DMLA Members,

Throughout the years you have been participating in our annual conference as an attendee. This year we are in Los Angeles and as part of the change in locale, I would also like to open to all of  you to the opportunity to participate in the programming for the conference.
Los Angeles is on the Pacific Rim, a city of creativity that is the epicenter of entertainment, music, motion and still and the producers of much of the content for the US and beyond, this opens up many topics for panels and speakers.  What would like to talk about?  What issues do you think are important for this year’s meeting?
We are just beginning our Program Committee’s work and could use a few more volunteers too.
I look forward to working with you all to bring your passion and ideas to our conference October 21-23, 2018.
Please reach out to Cathy Aron at cathy@digitalmedialicensing.org as soon as possible with your suggestions.
All the best,
Ophelia Chong, Stock Pot Images
DMLA Program Chair

Fox News Network, LLC v. TVEyes, Inc.: Second Circuit Rejects Fair Use Defense for Mass Archiving and Re-Distribution of Copyrighted TV Content

By: Scott J. Sholder

A panel of the U.S. Court of Appeals for the Second Circuit today issued its much-anticipated opinion in the TVEyes appeal, reversing the decision of the U.S. District Court for the Southern District of New York, and holding that TVEyes’ copying, storage, and re-distribution for viewing, downloading, and sharing, of massive amounts of copyrighted TV content was not fair use.

Read the entire story here.