As the world becomes more interconnected, the need for broader and modernised intellectual property law has increased.
Copyright leads the way in the queue for reform, and two proposed reforms in particular are promising to reshape the protection and enforcement landscape.
The argument now centres on how to implement change. Those who, in unison, called for updates to outdated systems now sit on either side of the fence, debating which reforms favour infringers, which favour rights holders and which, if any, should be implemented.
Commenting on the UK’s Digital Economy Bill, Jim Killock, executive director of the Open Rights Group says that these reforms, in practice, seem to “load the rules to suit copyright holders at the expense of internet platforms”.
For example, the UK’s Digital Economy Bill, which is currently being debated, will enforce a new 10-year prison sentence for online copyright infringers.
Killock says that a sentence such as this could only be justified for “really serious criminality”, but says that the proposal will not work in that way.
Killock asks for certain thresholds to be implemented to avoid criminalising various kinds of minor infringement, including non-wilful infringement.
He says: “As they stand, more or less any infringement can be seen as causing a loss, and any infringement that allows others to reuse the content causes a ‘risk of loss’.”
“The real risk is the abuse and threats from copyright trolls, which this would help.”
A copyright conundrum
Across the channel, in mainland Europe, Killock identifies the copyright proposals tendered as part of the EU’s Digital Single Market initiative as another threat. Specifically, Killock focuses on the proposed 20-year link right, which would allow publishers to claim royalties from search engines and other intermediaries that use their content for up to 20 years after publication.
Killock says this proposal “seems to add very little to what they already have in copyright”. It will add “complexity and shift power from authors to publishers, but will do little or nothing to shift revenues from Google and other platforms to news publishers”.
Recently, the Centre for International Intellectual Property Studies (CEIPI) asserted, in agreement with Killock, that the proposals would be “detrimental for authors” and “fails to explain how an additional layer of 28 national rights might promote the Digital Single Market”.
“While the impact assessment accompanying the direct proposal concludes that the ‘introduction of a related right covering digital uses of press publications is not expected to generate higher licence fees for online service providers’, it fails to assess the impact of the directive proposal on authors.”
Further, CEIPI said: “As the ‘pie’ does not get any bigger, the authors’ share will inevitably decrease. Ultimately, this might undermine the overall functioning of the copyright system, especially because it should primarily secure fair remunerations to creators, while at the same time providing access to users.”
Responding on behalf of publishers, Angela Mills Wade, executive director of the European Publishers Council, disagreed with this argument, stressing that “strong economic rights benefit publishers and authors alike”.
Mills Wade says: “Being acknowledged in law as a rights holder brings clarity to the market to facilitate licensing, and before the courts to ease enforcement action at the publisher level on behalf of all who contribute to press publications.”
“This will provide an important basis for publishers to maintain sustainable journalism and would benefit all of our contributors whether employees or freelancers.”
“Such a right aims to protect the investment and the creative endeavour of putting together and the making available of the various digital press products online and via mobile, not the individual article. The only people who will notice any changes at all are those who today free-ride for commercial gain on publishers’ investments without permission or payment.”
“Who are they? Well not the readers, authors or individual users, but commercial organisations whose business models and significant economic benefits depend on the use of publishers’ journalistically-produced content.”
Killock says that the 20-year link right proposal will cause increased censorship and make it difficult to exercise quotation, parody and incidental usage rights.
He adds that this definition also applies to what he calls the EU’s ‘filtering’ proposal, otherwise known as Article 13 (see box out).
This proposed filtering would work in a similar way to YouTube’s Content ID system, but would be required of all websites that aggregate or publish content.
Content ID scans videos uploaded to YouTube for protected content against a database provided by copyright owners. The system allows a rights owner to automatically choose to monetise a flagged video through adverts, block it, mute its audio, or track it.
But Killock says that this sort of ‘filtering’ system would have striking differences to Content ID. For example, content would be blocked when uploaded, not after the copyright holder reviews it, and what qualifies as a sufficient measure would then be up to the copyright holders.
“In essence,” he says, “if a platform did not do enough, they could be taken to court, and there are no thresholds about the size of platform or amount of infringement that means a platform would have to implement such measures. The aim is to ‘modernise copyright’ and create a ‘digital single market’ but in practice, that seems to mean to load the rules to suit copyright holders at the expense of internet platforms.”