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Tech Giants Win a Battle Over Copyright Rules in Europe

https://mobile.nytimes.com/2018/07/05/business/eu-parliament-copyright.html

European Parliament lawmakers rejected a bill backed by news outlets and music publishers to restrict the use of their content on platforms like YouTube and Facebook.Frederick Florin/Agence France-Presse — Getty Images

 

It’s a fight nearly as old as the internet.

On one side are news organizations, broadcasters and music companies that want to control how their content spreads across the web, and to be paid more for it. On the other are tech companies such as Facebook and Google, which argue that they funnel viewers and advertising revenue to media outlets, and free-speech advocates, who say that regulating the internet would set a dangerous precedent and limit access to information.

That battle flared up in Europe on Thursday. Two powerful industries faced off — technology against media, platforms against publishers — in an unusually aggressive lobbying campaign in the European Parliament over a bill that would impose some of the world’s strictest copyright laws, which would have required tech companies to filter out unlicensed content and pay for its use.

On this occasion, tech prevailed; the proposal was voted down.

The decision came amid broader efforts in Brussels to rein in tech giants. European regulators have already brought in tough new privacy rules, and are considering enhancing them. They have hit Silicon Valley companies with hefty antitrust fines, and are investigating them over their tax practices and handling of data. And like elsewhere in the world, they are increasingly skeptical of the argument made by internet companies that they are simply impartial platforms that cannot be held responsible for what is posted on their pages.

“Making content available on the internet does not come without responsibility,” said Eleonora Rosati, an associate professor on intellectual property law at the University of Southampton’s law school in England, who has been tracking the bill. “Rights holders want to control how their content is made available, shared and indexed.”

But after a well-coordinated effort by companies including Facebook, Google, Reddit and Wikipedia, as well as a grass-roots campaign by backers of an open internet, the European Parliament on Thursday rejected the proposed copyright law. Though lawmakers can still revise the bill and call another vote, the result is a blow to media companies that had believed that, if ever there was a good time to impose tougher rules on tech giants, this was it.

Media businesses like Axel Springer of Germany have become frustrated because even as their content has spread online, it is platforms like YouTube, owned by Google, and Facebook that have grown into advertising powerhouses on the back of the material.

Those media companies have been seeking a rewrite of Europe’s copyright laws that would give them more power to restrict how their content is distributed. They also cited concerns that Silicon Valley was not playing a strong enough gatekeeper role when it came to curtailing hate speech, violent extremism and fake news.

Supporters of the bill argued that stricter copyright laws would give content creators more leverage against internet behemoths such as Google. Publishers have long complained that such companies profit from the work of others.

“The real issue is Google’s market power,” said Lionel Bently, a law professor at the University of Cambridge who focuses on copyright. “The content industry feels it can’t negotiate on a level playing field.”

Influential policymakers in Brussels such as the president of the European Commission, Jean-Claude Juncker, have seemed receptive to such arguments. A proposal was put forward to require websites to use filtering technology to block unlicensed content from being posted and to obligate them to pay fees for news articles and other material posted online.

The proposed rules would have added up to a sweeping change to copyright law.

Operators of websites have long been protected from liability when unlicensed content is posted by a user. Instead, they are required only to remove infringing material once it is brought to their attention. In effect, if someone posts a movie clip on YouTube, or shares the text of an article on Reddit, those websites are not held legally liable.

The new European proposals would put more responsibility on website owners, creating a potentially costly problem for sites that depend on user-generated material.

The most contentious provision of the plans would require websites to use filtering software to screen such content before it was posted. YouTube already has a system to weed out unlicensed material, but the European rules would have gone further by requiring others to use similar tools. Another requirement, favored by book and news publishers, would prevent websites from using pieces of their content without authorization.

Critics of the bill argued that it would lead to many unforeseen consequences, warning that it could even affect satirical content or the use of images in internet memes. They said it would restrict what was available online, and some described a provision requiring permission before websites used publishers’ content as a “link tax.”

“There’s no way that those algorithmic filters are going to be able to decide that something is fair use, parody, a meme or a mash-up,” said Danny O’Brien, international director of the Electronic Frontier Foundation, a digital rights nonprofit group that opposed the bill.

In defeating the proposal, the technology industry showed that it still held considerable influence, even as it has faced widespread criticism over privacy violations, the spread of misinformation, accusations of anticompetitive business practices and concerns about smartphone overuse.

The coalition against the proposal that came together over the past month was similar to defenders of net neutrality in the United States, a mix of corporate giants and open internet activists. They said the copyright bill would limit the access to information and would overburden operators of websites, especially those without the resources of an American tech giant, with the costly task of screening user-generated content before posting it.

Wikipedia blocked access to articles on its site in many European countries and encouraged its users to call on their representatives in the European Parliament to vote against the proposal. Scientists credited with creating the internet sent a letter urging that it be rejected. Even David Kaye, the United Nations rapporteur on the protection of freedom of expression, raised concerns.

Wikipedia said on its website that the measure “threatens online freedom and creates obstacles to accessing the web, imposing new barriers, filters and restrictions.”

Lobbying ahead of the vote was “extraordinary, something we don’t experience on a normal basis here in the Parliament,” said Umberto Gambini, a senior aide to Ramon Tremosa, a Spanish member of the European Parliament.

Mr. Gambini said he had received hundreds of messages from individuals and organizations attempting to win Mr. Tremosa’s support. There was one from a Polish business group, he said, another from an artists’ organization, and others still from news publishers and associations representing tech companies.

He added that one message had come from the musician Paul McCartney, who wrote to members of the European Parliament in support of the tighter copyright rules.

But Mr. McCartney’s efforts were in vain: Mr. Tremosa ultimately opposed the bill.

Copyright on the Wild Side: With a Push of a Button, Monkey Raises New Question About Copyright Authorship and Ownership of Photographs

 

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By Scott J. Sholder and Marissa Lewis, Attorneys at CDAS

It’s been theorized that if you give a million monkeys a million typewriters, they will eventually produce the entire collected works of William Shakespeare.  It’s been proven, however, that if a troupe of monkeys steals a camera, one will eventually take a really good selfie.  By now you’ve probably heard this story, but just in case, the facts are as follows.

In 2011, British wildlife photographer David Slater traveled to the forests of Indonesia, equipment in tow, to follow and photograph the endangered crested black macaque species of monkey.  According to news reports, during his trip, Slater set up his camera and tripod and briefly stepped away, and when he came back, a group of macaques had, in the words ofThe Telegraph, “hijacked” his camera, ultimately taking hundreds of shots.  Many of the shots were, as expected, blurry or otherwise unusable, but several actually came out quite well, including a crystal-clear selfie of a female macaque showing off her large amber eyes and huge toothy grin.  Slater sold the image to several publications, and soon the story – and the selfie – caught fire in the media, filling inches in the Guardian, the Telegraph, and the Washington Post, among other media outlets.  The selfie soon ended up on Wikimedia Commons (owned by the parent company of Wikipedia), which is advertised as a repository of over 22.3 million free public domain images.

In early 2012, Slater asked Wikimedia to remove the selfie from its online archive, claiming that he owned the copyright rights in the image.  Wikimedia complied, but when the image reappeared again later, Wikimedia had a change of heart, noting that works originating from non-human sources are not protected by copyright, and rejected Slater’s demands.  In other words, Wikimedia took the position that because the selfie was taken by a monkey, Slater could not claim that he owned the copyright in the image.  Slater claimed, and continues to claim, among other things, that his failure to press the shutter himself should not deprive him of copyright in the image, that the photographic equipment was his, that he spent considerable money on the equipment and on his trip to Indonesia, and that he not only “set up the shot,” but edited, processed, and published the selfie after it was taken.  Slater is now considering taking legal action against Wikimedia in the United States, and this has given the story new life.

This scenario raises fascinating questions concerning copyright ownership of photographs.  Under U.S. copyright law, ownership is determined, in the first instance, by authorship.  Unless the work is a work made for hire, the author of a work is the original owner of that work, and remains the owner of that work unless another person or entity acquires ownership by a written and signed agreement.  Here, the work-made-for-hire doctrine is easily ruled out: to say that Slater and the monkey were in an employer-employee relationship would be a stretch of the imagination.  We can also confidently conclude that no combination of Slater, Wikimedia, and the monkey put pen to paper to effectuate a transfer of ownership.  The owner of the monkey selfie must be the one who authored it.

The Supreme Court long ago defined an author as “he to whom anything owes its origin; originator; maker.”  Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).  In other words, the author is the one who had the “creative spark,” or made the “intellectual effort,” and caused the work to be created.  So who is the author of the monkey selfie – Slater, the monkey, both, or neither?  The question is not at all black and white, and leads to a number of other questions.  For example: Can a monkey qualify as an “author” in the first place?  Did Slater contribute sufficient copyrightable expression to be the “author”?  How much significance should be ascribed to who pushes the shutter, who owns the equipment, and who expended the money and effort to travel and prepare for the shoot?

First, authorship traditionally includes a human element – some sort of intellectual effort or creative expression that only a human being is capable of.  Although this notion has been challenged – most commonly in the context of computer-generated works – membership in the human race remains a prerequisite to copyright “authorship,” even if a non-human happened to “create” the work.  In fact, both the current U.S. Copyright Office Compendium of Copyright Practices (Compendium II) as well as a draft of the Compendium III released August 19, 2014, state: “The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being . . . [but] will not register works produced by nature, animals, or plants.”  The drafters of the Compendium presumably had this very case in mind when they listed “[a] photograph taken by a monkey” as the first example of a work not eligible to register.  SeeCompendium III § 306.  It follows then that not only is the monkey not the author of the infamous selfie, but she cannot be an author either.  In other words, the selfie cannot be a “joint work” because a joint work must be “prepared by two or more authors.”  17 U.S.C. § 101.

Because works that originate solely from non-human sources are not copyrightable and immediately fall into the public domain, if the monkey was the only “creator” of the work, then the selfie is in the public domain, and therefore free for anyone, including Wikimedia, to use.  But this of course begs the question whether the monkey was, indeed the sole creator.  Regardless of the monkey’s authorship status, Slater may be able to lay claim to be the sole owner of the selfie by virtue of his own role in the creation of the photograph before the camera was taken by the monkey.

That the monkey, and not Slater, snapped the photograph is not determinative.  Fixation is a requirement for copyrightability, but the author does not necessarily have to be the one who does the fixing.  Rather, what is crucial is that the author contributes creative and original expression to the work.  In interviews, Slater has emphasized that he incurred considerable personal expense by purchasing photographic equipment and traveling to Indonesia, but U.S. courts no longer equate this “sweat of the brow” with copyrightable expression.  See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).  Likewise, that the camera equipment belonged to Slater is irrelevant; indeed, photographers often rent equipment, yet the ultimate owner of the equipment is not the owner of the photographs captured by the equipment during a shoot.

However, Slater may have a colorable argument that the monkey selfie was a product of his creative decisions.  If Slater can prove that he made creative choices in setting up the shot, and that the monkey merely acted as a substitute for Slater’s hands when she stole the camera and clicked the shutter, then the question of copyright ownership may resolve in his favor.  In fact, a professional photographer often acts as a kind of director – setting up a shot from a creative standpoint – and then has an assistant press the shutter.  Lastly, like all professional photographers, Slater only published the “perfect” photographs, in which everything was in focus and the composition was pleasing.   

This creative decision-making is the key aspect photographers should focus on when embroiled in a dispute over the ownership of a photograph with another potential author (human, ape, or otherwise).  Rather than dwelling on ownership of equipment or expenditures of money or effort, photographers who are putative authors should readily be able to articulate how, for example, they chose the lens, focus, and filters, set up the camera, picked the location, determined the proper distance, angle, and time of day, framed the subject, adjusted the lighting and shading, set the mood, or timed the shot.  Even after the shoot is over, photographers may alter the selected images for publication by making creative choices through cropping, rotating, editing, and otherwise enhancing or touching up the resulting shots using common image software, and should weave these potentially creative decisions into the story of their authorship in order to demonstrate maximum creative direction.  Notably, the completed selfie could potentially be a derivative work, with Slater owning all the enhancements made in the final production, and Slater could copyright and register the newly added creative material.

Given all of the publicity the monkey selfie case has already garnered, it will certainly continue to be one to watch.  Besides, one can never really predict what circumstances ultimately lead to interesting substantive rulings in copyright law, and it could be that one arises from the most unlikely of sources – a primate in the jungles of a Southeast Asian archipelago”

About Cowan DeBaets Abrahams & Sheppard LLP

For over 25 years, Cowan DeBaets Abrahams & Sheppard has provided legal counsel to leading media and entertainment clients.  A boutique firm, it provides transactional services to the media and entertainment industry, handles all forms of copyright, trademark and media disputes and has a rapidly growing digital media and venture law practice.www.cdas.com