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Monday, June 13, 2016

EU consultation on role of publishers in copyright value chain

My response to the latest EU copyright consultation below. These answers to the questions posed are an abridged version of an earlier attempt I made to submit a longish response through the Limesurvey site. Upon filling out the survey form and clicking the submit button there I got a "Bad Request The CSRF token could not be verified" error.

The submission was not recoverable.

So I'd recommend anyone considering responding before Wednesday's deadline do so via the official EC consultation site.

I would, nevertheless, recommend the #FixCopyright videos of Francois Grimonprez and Matt Lees and some of the suggestions made about responding to the consultation at the limesurvey site, especially if you're not particularly well acquainted with the intricacies of copyright policy. Don't take the limesurvey answers as accepted dogma - do apply your own critical faculties to any response.

Date: 13/06/2016 15:55:16


Public consultation on the role of publishers in the copyright value chain and on the 'panorama exception'
Fields marked with * are mandatory.
General information about you
The views expressed in this public consultation document may not be interpreted as stating an official position of the European Commission.  All definitions provided in this document are strictly for the purposes of this public consultation and are without prejudice to differing definitions the Commission may use under current or future EU law, including any revision of the definitions by the Commission concerning the same subject matters.

Fields marked with * are mandatory.
*I'm responding as:
An individual in my personal capacity
A representative of an organisation/company/institution
*Please provide your first name:

Ray
*Please provide your last name:

Corrigan
*Please indicate your preference for the publication of your response on the Commission's website:
Under the name given: I consent to publication of all information in my contribution and I declare that none of it is subject to copyright restrictions that prevent publication.
Anonymously: I consent to publication of all information in my contribution and I declare that none of it is subject to copyright restrictions that prevent publication.
Please keep my contribution confidential. (it will not be published, but will be used internally within the Commission)
(Please note that regardless the option chosen, your contribution may be subject to a request for access to documents under Regulation 1049/2001 on public access to European Parliament, Council and Commission documents. In this case the request will be assessed against the conditions set out in the Regulation and in accordance with applicable data protection rules.)
*Please indicate your country of residence
United Kingdom
The role of publishers in the copyright value chain
In its Communication Towards a modern, more European copyright framework of 9 December 2015, the Commission has set the objective of achieving a well-functioning market place for copyright, which implies, in particular, "the possibility for right holders to license and be paid for the use of their content, including content distributed online."[1]
Further to the Communication and the related stakeholders' reactions, the Commission wants to gather views as to whether publishers of newspapers, magazines, books and scientific journals are facing problems in the digital environment as a result of the current copyright legal framework with regard notably to their ability to licence and be paid for online uses of their content. This subject was not specifically covered by other public consultations on copyright issues the Commission has carried out over the last years. In particular the Commission wants to consult all stakeholders as regards the impact that a possible change in EU law to grant publishers a new neighbouring right would have on them, on the whole publishing value chain, on consumers/citizens and creative industries. The Commission invites all stakeholders to back up their replies, whenever possible, with market data and other economic evidence. It also wants to gather views as to whether the need (or not) for intervention is different in the press publishing sector as compared to the book/scientific publishing sectors. In doing so, the Commission will ensure the coherence of any possible intervention with other EU policies and in particular its policy on open access to scientific publications.[3]
*Selection
Do you wish to respond to the questionnaire "The role of publishers in the copyright value chain"?
Yes (Please allow for a few moments while questions are loaded below)
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[1]   COM(2015)626 final.
[2]   Neighbouring rights are rights similar to copyright but do not reward an authors' original creation (a work). They reward either the performance of a work (e.g. by a musician, a singer, an actor) or an organisational or financial effort (for example by a producer) which may also include a participation in the creative process. EU law only grants neighbouring rights to performers, film producers, record producers and broadcasting organisations. Rights enjoyed by neighbouring rightholders under EU law generally include (except in specific cases) the rights of reproduction, distribution, and communication to the public/making available.
[3]   See Communication COM(2012) 401, Towards better access to scientific information: Boosting the benefits of public investments in research, and Recommendation C(2012) 4890 on access to and preservation of scientific information.
Category of respondents
*Please choose the category that applies to your organisation and sector.
Member State
Public authority
Library/Cultural heritage institution (or representative thereof)
Educational or research institution (or representative thereof)
End user/consumer/citizen (or representative thereof)
Researcher (or representative thereof)
Professional photographer (or representative thereof)
Writer (or representative thereof)
Journalist (or representative thereof)
Other author (or representative thereof)
Collective management organisation (or representative thereof)
Press publisher (or representative thereof)
Book publisher (or representative thereof)
Scientific publisher (or representative thereof)
Film/audiovisual producer (or representative thereof)
Broadcaster (or representative thereof)
Phonogram producer (or representative thereof)
Performer (or representative thereof)
Advertising service provider (or representative thereof)
Content aggregator (e.g. news aggregators, images banks or representative thereof)
Search engine (or representative thereof)
Social network (or representative thereof)
Hosting service provider (or representative thereof)
Other service provider (or representative thereof)
Other
Questions
1. On which grounds do you obtain rights for the purposes of publishing your press or other print content and licensing it? (Multipe selections possible)
transfer of rights from authors
licensing of rights from authors (exclusive or non-exclusive)
self-standing right under national law (e.g. author of a collective work)
rights over works created by an employee in the course of employment
not relevant
other
2. Have you faced problems when licensing online uses of your press or other print content due to the fact that you were licensing or seeking to do so on the basis of rights transferred or licensed to you by authors?
yes, often
yes, occasionally
hardly ever
never
no opinion
not relevant
3. Have you faced problems enforcing rights related to press or other print content online due to the fact that you were taking action or seeking to do so on the basis of rights transferred or licenced to you by authors?
yes, often
yes, occasionally
hardly ever
never
no opinion
not relevant
4. What would be the impact on publishers of the creation of a new neighbouring right in EU law (in particular on their ability to license and protect their content from infringements and to receive compensation for uses made under an exception)?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain

The introduction of such rights in Spain and Germany has had a widespread negative impact
5. Would the creation of a new neighbouring right covering publishers in all sectors have an impact on authors in the publishing sector such as journalists, writers, photographers, researchers (in particular on authors' contractual relationship with publishers, remuneration and the compensation they may be receiving for uses made under an exception)?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain

The introduction of such rights in Spain and Germany has had a widespread negative impact
6. Would the creation of a neighbouring right limited to the press publishers have an impact on authors in the publishing sector (as above)?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain
7. Would the creation of a new neighbouring right covering publishers in all sectors have an impact on rightholders other than authors in the publishing sector?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain
8. Would the creation of a neighbouring right limited to the press publishers have an impact on rightholders other than authors in the publishing sector?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain
9. Would the creation of a new neighbouring right covering publishers in all sectors have an impact on researchers and educational or research institutions?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain

Educational institutions already face astronomical library and access to published materials costs. Compounding this problem with additional copyright costs would prove to be a tipping point for many of these institutions undermining their capacity to fulfil their core educational functions. In some cases it may even threaten the survival of these institutions.
10. Would the creation of a neighbouring right limited to press publishers have an impact on researchers and educational or research institutions?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain

The modern mainstream press is notoriously poor at evidence based substantive reporting, preferring instead to focus on superficial emotional response and capture of audience attention.  Subtle or complex academic enquiry has little place in such an information space. The introduction of further copyright barriers risks marginalising researchers and educational or research institutions even further
11. Would the creation of new neighbouring right covering publishers in all sectors have an impact on online service providers (in particular on their ability to use or to obtain a licence to use press or other print content)?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain

The European Parliament's JURI [legal affairs] committee has already rejected the notion of what has come to be called a "Google tax" in its report on updating copyright in 2015. When it was introduced in Spain, Google shut down their Google News service leading to a drop in online publisher traffic of up to 15%. In Germany a similar law led to similar drops in traffic and online publishers responded in the end by providing Google with a free licence to link to their content. The overall economic effect is consequently negative even if we simply count the costs of administering/managing the new Google licences, a cost that did not previously exist.

Google, Amazon, Apple, Facebook, Microsoft, big telcos and big tech cos generally can absorb these extra intermediary costs and offload them on their customers and end users. Online service SMEs get disproportionately affected as they can't rely on similar economies of scale.
12. Would the creation of such a neighbouring right limited to press publishers have an impact on online service providers (in particular on their ability to use or to obtain a licence to use press content)?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain

See previous answers
13. Would the creation of new neighbouring right covering publishers in all sectors have an impact on consumers/end-users/EU citizens?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain

Complex copyright provisions contribute to the drive towards industrial convergence in the communications and creative sectors. See for example Wu, Tim (2012) The Master Switch: The Rise and Fall of Information Empires and also Landes, William M., Posner, Richard A. (2003) The Economic Structure of Intellectual Property Law. Monopolistic/oligopolistic industries are bad for consumers/end-users/citizens.  As Thomas Babbington Macaulay said in his famous copyright speech in the House of Commons in the 1840s, they "make articles scarce... dear, and... bad" http://www.thepublicdomain.org/2014/07/24/macaulay-on-copyright/
14. Would the creation of new neighbouring right limited to press publishers have an impact on consumers/end-users/EU citizens?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain

See answer to q13
15. In those cases where publishers have been granted rights over or compensation for specific types of online uses of their content (often referred to as "ancillary rights") under Member States' law, has there been any impact on you/your activity, and if so, what?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
16. Is there any other issue that should be considered as regards the role of publishers in the copyright value chain and the need for and/or the impact of the possible creation of a neighbouring right for publishers in EU copyright law?
Yes
No
If so, please explain and whenever possible, please back up your replies with market data and other economic evidence.

It is long past the time when a "copyright" should be considered the basic economic unit of creative work in our information age. The very act of switching on or using a computer, a word processor or a browser, involves copying. Instead of the debate on copyright being constantly dominated by proposals to expand the economic rights of a privileged collection of incumbent economic actors, such as publishers, the EU should be considering fundamental structural changes to the legal infrastructure around creative rights. One starting point would be the 10 copyright principles espoused by international copyright specialist Paul Edward Geller available at http://www.criticalcopyright.com/copyright_principles.htm

Note in particular Geller's re-focusing of creative rights as authors' rather than publishers' rights. His ten principles:

 

 1. THE CORE RIGHT: Each author has the core right to disseminate her own creations, but no one may exercise this right to restrain others from creating or disseminating their own works.

 2. RIGHTHOLDERS AND SUBJECT-MATTERS: Each author has rights only in what each creates in any work that can be disseminated, but neither in techniques nor in materials or forms insofar as these are generated by techniques.

 3. MORAL RIGHTS: Authors may have themselves and their works respectively referenced when these are disseminated, be awarded actual damages for failure to so reference, and obtain equitable relief for impairments to integrity, notably for those made without creativity.

 4. ECONOMIC RIGHTS: Authors may obtain orders against the unauthorized dissemination of their own works, even in marginally creative derivative forms if irremediable harm is likely, and may be awarded actual damages or profit shares for unauthorized dissemination in any form.

 5. EXCEPTIONS: Authors’ rights, save the right to reference, do not apply to any single redissemination that common sense finds necessary for critical or informational purposes, such as commentary, explanation, illustration, news reporting, archival access, research, or teaching.

 6. LIMITATIONS: Authors’ rights are to be legislatively limited in their duration and may call for equitably limited remedies over time; overriding laws may limit relief in order to avoid undercutting such aims as assuring privacy, free expression, or open communication.

 7. ALLOCATION: Authors share rights in their own work among themselves, or with any principal, subject to the parties’ equitably construed consensus; authors may transfer economic rights to third parties through restrictively construed contracts or grants.

8.  CHAIN OF TITLE: A prior transfer of an economic right prevails over a subsequent transfer, subject to legally designated notice, but rightholders may not assert such rights in works licitly made public if they do not reasonably authorize uses.

9.  REMEDIES: Authors’ self-help may not be enforced beyond the scope of their rights, nor civil remedies imposed for specific acts that do not foreseeably lead to infringement, nor criminal sanctions for such acts not specified in statute.

10. CHOICE OF LAW: The cross-border infringement of authors’ rights is governed by the laws respectively in force where the work at issue is or might be received, subject to internationally compelling public policies in the field.
Use of works, such as works of architecture or sculpture, made to be located permanently in public places (the 'panorama exception')
EU copyright law provides that Member States may lay down exceptions or limitations to copyright concerning the use of works, such as works of architecture or sculpture, made to be located permanently in public places (the ‘panorama exception’) [1] . This exception has been implemented in most Member States within the margin of manoeuvre left to them by EU law.
In its Communication Towards a modern, more European copyright framework, the Commission has indicated that it is assessing options and will consider legislative proposals on EU copyright exceptions, among others in order to "clarify the current EU exception permitting the use of works that were made to be permanently located in the public space (the ‘panorama exception’), to take into account new dissemination channels.”[2] This subject was not specifically covered by other public consultations on copyright issues the Commission has carried out over the last years. Further to the Communication and the related stakeholder reactions, the Commission wants to seek views as to whether the current legislative framework on the "panorama" exception gives rise to specific problems in the context of the Digital Single Market. The Commission invites all stakeholders to back up their replies, whenever possible, with market data and other economic evidence.
*Selection
Do you wish to respond to this questionnaire "Use of works, such as works of architecture or sculpture, made to be located permanently in public places (the 'panorama exception')?
Yes (Please allow for a few moments while questions are loaded below)
Category of respondents
*Please choose the category that applies to your organisation and sector.
Member State
Public authority
Owner or manager of works made to be located permanently in public places (or representative thereof)
Library or Cultural heritage institution (or representative thereof)
Educational or research institution (or representative thereof)
End user/consumer/citizen (or representative thereof)
Visual artist (e.g. painter, sculptor or representative thereof)
Architect (or representative thereof)
Professional photographer (or representative thereof)
Other authors (or representative thereof)
Collective management organisation (or representative thereof)
Publisher (or representative thereof)
Film/audiovisual producer (or representative thereof)
Broadcaster (or representative thereof)
Phonogram producer (or representative thereof)
Performer (or representative thereof)
Advertising service provider (or representative thereof)
Content aggregator (e.g. news aggregators, images banks or representative thereof)
Search engine (or representative thereof)
Social network (or representative thereof)
Hosting service provider (or representative thereof)
Other service provider (or representative thereof)
Other
Questions
1. When uploading your images of works, such as works of architecture or sculpture, made to be located permanently in public places on the internet, have you faced problems related to the fact that such works were protected by copyright?
Yes, often
Yes, occasionally
Hardly ever
Never
No opinion
Not relevant
If so, please explain what problems and provide examples indicating in particular the Member State and the type of work concerned.
2. When providing online access to images of works, such as works of architecture or sculpture, made to be located permanently in public places, have you faced problems related to the fact that such works were protected by copyright?
Yes, often
Yes, occasionally
Hardly ever
Never
No opinion
Not relevant
If so, please explain what problems and provide examples indicating in particular the Member State and the type of work concerned
3. Have you been using images of works, such as works of architecture or sculpture, made to be located permanently in public places, in the context of your business/activity, such as publications, audiovisual works or advertising?
Yes, on the basis of a licence
Yes, on the basis of an exception
Never
Not relevant
4. Do you license/offer licences for the use of works, such as works of architecture or sculpture, made to be located permanently in public places?
Yes
No
Not relevant
5. What would be the impact on you/your activity of introducing an exception at the EU level covering non-commercial uses of works, such as works of architecture or sculpture, made to be located permanently in public places?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain

I'm an educator. I would not be using panoramic images for commercial purposes but for research and teaching.
6. What would be the impact on you/your activity introducing an exception at the EU level covering both commercial and non-commercial uses of works, such as works of architecture or sculpture, made to be located permanently in public places?
strong positive impact
modest positive impact
no impact
modest negative impact
strong negative impact
no opinion
Please explain

Blocking non commercial use interferes with education and research
7. Is there any other issue that should be considered as regards the 'panorama exception' and the copyright framework applicable to the use of works, such as works of architecture or sculpture, made to be permanently located in public places?
Yes
No
If so, please explain and whenever possible, please back up your replies with market data and other economic evidence.
Submission of questionnaire
End of survey. Please submit your contribution below.


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