Vervielfältigungen gemeinfreier visueller Werke

Thursday, Jun 25, 2020

Article 14 of the DSM directive (“Works of visual art in the public domain”) is my favorite part of the directive. Not only because i carry a certain amount of responsibility for the very existence of this Article, but also because it pretty much undisputedly fixes something that was broken and restores a certain amount of order to the universe.

Unfortunately we had to wait until yesterday to see how Member States affected by the new provision would implement it. The new German implementation proposal is the first one that contains a provision in line based on Article 141:

§ 68 Vervielfältigungen gemeinfreier visueller Werke

Erlischt das Urheberrecht an einem visuellen Werk, so erlischt auch der Schutz von Vervielfältigungen dieses Werkes durch verwandte Schutzrechte nach den Teilen 2 und 3.

This is short and sweet and does the job. It also leaves no ambiguities with regards to the application in time: Staring on the 7th of June 2021 there will be no more rights in reproductions of works of visual art in Germany anymore.

  1. None of the other Member States that have published proposals so far (BE, FR, HR, HU and NL) allow for the protection of non-original reproductions via neighbouring rights, so none of them have a need to implement the article. ↩︎

Imagine if there were no filters

Wednesday, Jun 24, 2020

Today Germany finally published its long awaited proposal for implementing Article 17 into national law. Back in April of last year, at the occasion of the final vote for the DSM directive, Germany had issued a statement in which it hat expressed the intention to implement the directive in a way that would avoid upload filters. And while today’s proposal breaks this promise (unsurprisingly there wil be filters) it reflects an honest intention to avoid their use as much as possible.

Diverging from the approach followed by all other Member States so far, Germany is proposing to implement Article 17 in a stand-alone law, the “Gesetz über die urheberrechtliche Verantwortlichkeit von Diensteanbietern für das Teilen von Online-Inhalten” or “UrhDaG” for short.

This proposed new law goes beyond merely transposing Art 17 and adds a number of interesting (and potentially controversial) provisions, which seem to be designed to strengthen the position of both users and individual creators. These include the addition of a remunerated de-minimis exception intended to safeguard common types of so-called “user generated content” (§6), the ability for uploaders to “pre-flag” legitimate uses of protected works in their uploads (§8), and the addition of a direct remuneration right intended to ensure that individual creators benefit from the new legal regime (§7).

Leaving aside any ideological preferences, the most notable thing about the German proposal is that it feels like the first attempt so far to make Article 17 “work”. The Ministry of Justice has clearly put a lot of thought into how the provisions would affect uploaders, creators, other rightholders and service providers. This has resulted in a proposal that imagines Article 17 working in a specific way, which is the complete opposite of the proposals we have seen form other member states that simply implement the often contradictory provisions of the directive and leave it to platforms and rightholders to resolve the mess. If nothing else, the ministry deserves to be applauded for this willingness to make choices.

Copyright + Authoritarianism = Strange bedfellows

Wednesday, Jun 17, 2020

As Péter Mezei points out on twitter it seems that Hungary is now the 2nd EU member state (after France) that has implemented a part of the DSM directive into national law. Yesterday, the Hungarian parliament passed the law “on transitional arrangements and health preparedness for the cessation of emergencies” which through Articles 323 to 327 modifies the existing exception for educational use to also allow digital uses of works both onsite and through secure electronic environments in line with Article 5 of the DSM directive.

This sudden implementation of Article 5 comes as a bit of a surprise, given that until earlier this month Hungary was still consulting on its national implementation of the DSM directive including the educational exception in Article 5.

As it turns out, Hungary had already made the changes to its educational exception on 15 April by way of an emergency decree signed by Prime Minister Victor Orban as part of a wider set of measures addressing the impact of the Corona pandemic (at the end of March the Hungarian Parliament had, in a widely criticised move granted Victor Orban wide-ranging emergency powers that allowed him to rule without any parliamentary oversight). The new law passed yesterday transforms a large number of these emergency measures (including the modification of the education exception) into permanent law.

What makes this whole situation remarkable (apart from the fact that modifying sustantive copyright law by decree as such is most likely unprecedented in the EU context) is, that on substance, the idea to expand the education exception to facilitate online education under the conditions of widespread lockdowns makes a lot of sense. But it is highly disturbing to realise that the only EU member state who has acted in line with this insight is the one run by an authoritarian government and that the ability to implement this policy is the result of its willingness to completely suspend democratic oversight.

Facebook to press publishers: Go screw yourselves!

Monday, Jun 15, 2020

In reaction to the Australian plans to make Google and Facebook pay for featuring new media content in their products, Facebook has now one-upped last years statement from Google in France and told press publishers that they can go screw themselves:

If there were no news content available on Facebook in Australia, we are confident the impact on Facebook’s community metrics and revenues in Australia would not be significant, because news content is highly substitutable and most users do not come to Facebook with the intention of viewing news. But the absence of news on Facebook would mean publishers miss out on the commercial benefits of reaching a wide and diverse audience, and social value would be diminished because news would be harder to access for millions of Australians.

Unfortunately for the publishers this is of course a pretty accurate description of the dynamics at play here. As i have argued before, from the perspective of the platforms it makes no sense whatsoever that they should pay for delivering customers to press publishers. As Facebooks response above shows, the only effect of such proposals is to make the platforms mad, and walk away from the table. This is precisely the reason why, instead of fabulating about questionable value transfers, we should rather think about taxing the value that platforms extract from the system as a whole.

Unleashing the filters

Friday, Jun 12, 2020

From the Verge:

Twitch plans to start automatically scanning clips of live streams for copyrighted music following a wave of takedown requests on years-old videos, which has frustrated streamers over the last week. Twitch says it will automatically delete clips with copyrighted music in them and that it will not penalize streamers — under its current rules, streamers can get strikes for copyright violations that could ultimately lead to a ban.

These takedown requests come from the RIAA which represents the major record companies that have been pinky swearing in the Commission’s stakeholder dialogue that they are not engaging in mass scale takedowns on YouTube. Yet here they are, going after fairly insignificant uses of music in old twitch clips (which, by definition, are shorter than a minute). Anyone who still believes that large corporate rightholders will not use all technological measures at their disposal to go after unauthorised uses of their works, now matter how insignificant, is a fool.

And the fact that a major platform like Twitch (which is owned by Amazon and thus has near indefinite ressources) can be pressured to delete wholesale all clips that contain copyrighted music (or at least the repertoire represented by the RIAA) does not bode well for what we can expect once Article 17 is in force and all platforms operating in the EU will be required to make use of the “services” offered by Audible Magic and the like.

"A deliberate lack of imagination"

Thursday, Jun 11, 2020

The Kluwer Copyright Blog is running a series of posts by Remy Chavannes on the proposed Dutch DSM directive implementation law. Based on the first two posts (the third is coming tomorrow) it is a pretty good summary of the more controversial elements of the law that accurately identifies the weaknesses of the proposal.

Recommended reading for anyone interested in understanding the legislative wiggle room and the resulting tradeoffs in implementing the DSM directive. Here is the high level summary:

Both the timing and the content of the legislative proposal show an acute desire to avoid the risk of late or incorrect transposition. In the operative provisions and explanatory memorandum, the government has sought neither to mitigate the directive’s limitations nor to offer original interpretations of its impossible compromises. This deliberate lack of imagination is arguably a quality and, while not without its own risks and drawbacks, is based on a pragmatic assessment of national legislators’ room for transpositional manoeuvre.

Single Market 2.0

Tuesday, Jun 9, 2020

Yesterday over lunch1 i attended an online seminar on “Single Market 2.0: the European Union as a Platform” by Andrea Renda (CEPS). Despite the rather silly “2.0” moniker in the title, his presentation turned out to be a veritable tour de force through the digital policy space in general and the digital policy issues currently on the agenda of the EU Commission. There is a lot to unpack and to learn here but for now i leave you with Renda’s sketch of his proposed architecture for the the Single Market 2.0:

Single Market 2.0 Architecture by Andrea Renda

For this to make any sense to you, you will either have to watch the recording of the seminar or read the underlying research paper.

  1. One of the perks of being part of an academic research institute in times of COVID is the multitude of little seminars that you can effortlessly slip in and out of at the click of a trackpad/touch on the screen. ↩︎


Monday, Jun 8, 2020

To document the work on our new reserach project on interoperability Alek has started a bi-weekly newsletter: The interoperability. In the first edition he reflects on policymaking as a form of worldbuilding. I particularly like this passage:

Policymaking, the crafting of reality through strategic documents, is in this context a deeply humanistic thing. If you try to build worlds with policies, there’s a high chance you believe that social norms and contracts, and democratic oversight, can trump technologies.

Go read the rest and subscribe here.

The Land of Data

Friday, Jun 5, 2020

I quite like how this map by Arturo Muente-Kunigami displays the tensions between the different conceptual approaches to data displays the inherent tensions between them:

The land of Data by @n0wh3r3m4n

The map is taken from an essay advocating for a more holistic approach to data. Here is the bit where he describes the different approaches/camps:

Take, for example, the Transparency and Access to Information camp, demanding that virtually all information should be made available to the public if requested (with few exceptions like national security and personal information). Close to their tent is the Open Data camp, requiring a proactive publication of all data (with similar exceptions) in machine readable formats and with an open license to both improve transparency and accountability while promoting innovation. We also have the Data Protection cluster, primarily concerned about the potential violation of rights and discrimination that could arise from unregulated collection and use of personal data. Next, a growing group of Technology Enthusiasts, mostly from the private sector, promotes the use of all data available to fuel new technologies (notably, artificial intelligence, big data analytics, and automation) under the promise of a more effective and efficient delivery of goods and services. This group includes a subset of more aggressive vendors buying unstructured data to target consumers with personalized proposals. Digital Government Authorities are promoting the concept of “data sharing” (interoperability) so that citizens don’t have to present information to one public agency if another agency already has it. And close by, Cybersecurity folks are prompting everyone (governments and private companies) to put in place security measures, highlighting the potential threats that arise from the mere existence of these huge pools of data and the harm that criminals could inflict to the economy should they get their hands on them. There sure are other groups that have not been listed.

The main problem with this description is the use of the term “tech enthousiasts” instead of the much more appropriate “surveillance capitalists” for describing those who “promote the use of all data available to fuel new technologies”.

Cognitive load balancing

Thursday, Jun 4, 2020

This reminded me of how we have been working at COMMUNIA for the past few years:e

Split the information you’re consuming amongst your team, whether that team is your colleagues, family, friends, or your professional fellow travelers. Read different sources, sorted by local and global, social and technical, known reliable correspondents or experts, and so on. Sort the light from the heavy, the narrative from the data, or whatever way works best to keep you from carrying the burden of all of that cognitive load alone.

Individuals build specialized knowledge, develop good critical radar for sources, and track rises and falls in information trends quite well. A group with diverse interests, tolerances, knowledge of industry dialects and players, strategically spread across time zones, can work together to keep their eyes on the landscape, and save any one person from burning out on breadth, depth, and span of material. This approach can also help mitigate overly negative or overly positive views of one person.

It is a passage from a longer essay titled “Managing Abyss Gaze In a Time of Difficult Futures” written by Scott Smith that is pretty insightful (if you can tollerate the pretty thick layer of post-consultancy lingo). (via BruceS)

Making the case against automated copyright filters

Wednesday, Jun 3, 2020

For a while techdirt has been doing an admirable job at documenting the failures of the copyright filters. This week has been a particular good week with two new cases that demonstrate the shortcomings of filtering technology (or rather automated systems build on top of such technology):

On Tuesday they reported about NBC universal and National Geographic claiming to own NASA footage of the recent launch of the SpaceX Crew Dragon and as a result taking down YouTube clips and streams of anyone else using this footage. The issue here are incorrect rights claims that even in obvious cases like this one are not caught by YouTube. As long as the entities making such claims have to face no consequences for such behaviour this will continue to be a side effect of the deployment of any automated filtering system.

Now preventing others from showing images of an overhyped commercial spectacle is relatively harmless from a freedom of speech perspective. Today techdirt reports about another case that is almost the textbook example of copyright filters blocking political speech: YouTubes Content ID has blocked reporting from the ongoing anti-racism protests in the US because it contained music by 2Pac and Marvin Gaye playing in the background. This well documented failure mode of copyright filters should rule out their use under almost all circumstances.

Thanks to techdirt for continuing to remind us that the issues we have been highlighting in the discussions around the implementation of Article 17 of the Copyright Directive are not merely theoretical but very real problems that even the self styled leaders in content identification have failed to solve despite massive investments into their technology.

The consultation trap

Tuesday, Jun 2, 2020

Today the Commission published its long awaited public consultation on the Digital Services Act [announcement , pdf consultation document]. While such consultations are certainly intersting and answering to them is important, we should also not over estimate the importance such consultations play in shaping legislation. Historically the EU’s track record with listening to consultation responses is rather bad. In the case of the copyright directive, where the 2016 proposal was preceded by a broad public consultation in 2014, the responses to the consultation where largely ignored and the issues that would turn into the most controversial parts of the legislative proposal where not even part of the consultation.

Instead, while civil society and academia spend their ressources on responding to the consultation (and in other public fora such as hearings), the entertainment industry was busy pushing its own agenda and narratives via closed door meetings with high ranking commission officials.

To shape the outcome of the discussion on the Digital Services Act, we will need to make sure that we are not too focussed on public feedback. Instead we will focus on building narratives and reach out to the decision makers on the political level.

On public space

Friday, May 29, 2020

Speaking about vertical video: This NY Times feature about street skating in New York City during the lockdown really resonated with me:

When you take an avenue, in the center of it, and there are no cars, and you can even see the end of the avenue, and it is so long and big — and you just feel like, Wow, I am floating.

The quotes from these skaters should be required reading for anyone trying to understand the concept of public space.

Horizontal vs landscape

Wednesday, May 27, 2020

More evidence that Instagram TV is encroaching on YouTube as an online outlet for creators. The Verge is reporting that Instagram will share revenue with creators for the first time through ads in IGTV. The article does not really go into my previous question of how Instagram will be dealing with the use of copyright protected third party content in user uploads, but it seems that for those videos and creators that will be allowed to monetize their uploads they are taking a better-safe-than-sorry approach. They will manually screen all uploads before allowing monetisation:

Osofsky says Instagram is human-reviewing every IGTV video before it’s accepted for monetization during this first phase. Eventually, the hope is to deploy a combination of human and software review. He says Instagram will rely on Facebook’s moderation work in terms of both the “technology and the people that do the reviews.”

It will be interesting to see if Instagram manages to build a less controversial system here that can scale beyond he limits of human review, or if they will be happy to keep this limited to a set, of hand-picked, advertiser-friendly, copyright law-abiding creators.

I also find it fascinating that this move by Instagram is potentially another stepping stone in the rise of portrait-orientation video replacing landscape-orientation video. As the Verge notes the …

…introduction [of monetizable ads] sets Instagram to compete directly with YouTube, especially if creators start prioritizing their vertical video shoots over landscape and brands spend their money on Instagram ads rather than YouTube.

Given that Instagram has already surpassed YouTube in total advertising revenue1, creators have very good incentives to do so.

  1. According to media reports YouTube generated USD 15 billion in advertising revenue in 2019 while Instagram pulled in 20 billion. ↩︎

It is time to kill Directive 2012/28/EU

Tuesday, May 26, 2020

So for some reason a request from someone in an unnamed EU canditate country to review amendments to their copyright law implementing the 2014 EU Orphan Works Directive landed in my inbox. It is a genuine request from an undoubtably well meaning person, but after calculating the likely impact of the OW directive, i just cant bring myself to do this:

Since its entry into force in 2014 the cultural heritage institutions in the 28 (former1) member states of the EU have identified a grand total of 12.847 orphan works and registered them in the EUIPO database. That is 0,000025 Orphan works per inhabitant of the EU28. If we take population as a proxy for the capacity to identify orphan works then this would suggest that the 4 western Balkan candidate countries will identify a mere 305 oprhan works in the five and a half years after having implemented the directive (ranging from 16 works in Montenegro to 177 in Serbia).

It is pretty cruel and shameful that we make accession countries implement failed legislation that will do them (or anyone else) no good whatsoever as a condition for joining the EU. It is one thing to keep failed legislation on the books because no-one has the guts to publicly admit to its failure2, but it is another thing to subject ressource-strapped countries to implement this legislation just because it exists. Someone should take note of this and get rid of the directive before it wastes even more ressources without doing any good.

  1. Intrestingly 47% (6.103) of all EU Oprhan works have been identified by institutions from the UK, which makes you wonder what will happen to them once Brexit has taken full effect. Will the EUIPO have to remove them from its database? ↩︎

  2. Case in point: according to the review clause in Article 10 of the directive the Commission should have submitted a review on the application of the directive by the 29 of October 2015. The fact that no such report has materialised almost 5 years after that date probably says more about the effectiveness of the directive than any report written by a commission official could ever do. ↩︎

US copyright office still mad at dancing baby

Monday, May 25, 2020

Last week the US copyright office released it’s long awaited (in copyright circles at least) Section 512 Study1. Section 512 of the US copyright code codifies the notice and takedown rules for Online Service Providers (OSPs) that were established by the Digital Millennium Copyright Act (DMCA) in 1998. In the area of copyright this is essentially the equivalent of the Article 14 of the e-Commerce directive that has been at the center of much of the controversy surrounding Article 17 of the Copyright in the Digital Single Market directive.

The Section 512 Study is a first step towards a possible legislative reform of the US rules that the entertainment industry has been lobbying for since the DCMA. At first glance the study stops short of fully endorsing the entertainment industry’s wishlist: It does not include Article 17 style requirements for OCPs to make best efforts to prevent the availability of works (i.e an indirect obligation for upload filtering), or to implement notice and staydown systems.

On the other hand a lot of the findings seem to undermine the legal position of online platforms (and their users2) and strengthen the position of rightholders. On the Kluwer copyright blog Pam Samuelson provides a first assessment which contains this passage:

The biggest disappointment for me in the Section 512 Study was its cavalier and largely dismissive attitude toward fair use. The Study discounted evidence of wrongful takedown notices offered by OSPs and civil society groups. It criticized as wrongly decided the Ninth Circuit’s decision in Lenz v. Universal Music Group Corp. [] (9th Cir. 2016). Universal sent a takedown notice to YouTube regarding Lenz’s short video of her baby dancing with some Prince music in the background, which Lenz thought was fair use. The court in Lenz held that a copyright owner could not claim that it had a good faith belief of infringement before sending a takedown request if it did not consider whether a use such as Lenz’s might be fair.

The Study notes that some OSPs have decided not to remove content alleged to infringe when the OSPs were convinced the challenged uses were fair. The Study chided them for doing so: “OSPs do not appear to be fully honoring the requirement in § 512(c)(1)(c) that upon receiving a takedown notice that is compliant with § 512(c)(3), they ‘respond[] expeditiously to remove or disable access to’ the material.” Under the Office’s interpretation of § 512, in other words, OSPs must remove or block access to content about which a takedown notice has been received regardless of whether the use is fair.

This approach would render fair use a meaningless protection for freedom of expression on online platforms. The attempt by rightholders and copyright maximalists to frame exceptions and limitations to copyright as privileges that can only be claimed ex-post (be it in the form of the DCMA counter notice process or the new complaint and redress mechanism established in Article 17 of the DSM Directive) has the potential to do serious damage. While it remains to be seen if this new attack on fair use as a ex-ante users’ right protection will be successful, it is worth noting the the EU system with its specific exceptions may ultimately provide stronger legal safeguards here3.

  1. The study references one of my recent writings in a (fairly innocent) footnote (fn 339 on page 63) ↩︎

  2. The study makes the same mistake that policy makers made during the EU copyright reform discussion: It frames the the copyright debate as one between two industries and ignores that users have a distinct stake in copyright policy discussions that does cannot be collapsed into the position of the tech industry (although there is some overlap). As Samuelson notes in her analysis: “The Study’s assumption that OSPs and copyright industries are the only stakeholders whose views on the DMCA safe harbors should be heeded is disturbing. What about, for instance, the user-creators who depend on OSPs such as Etsy or Ravelry to make their creations available? What about Internet users more generally?” ↩︎

  3. Especially now that the exceptions for the purposes of quotation, criticism, review, caricature, parody and pastiche are mandatory and that in its recent case law the CJEU has recognized that these exceptions “􏰇confer rights on the users of works”. ↩︎

Bots aren’t great listeners

Friday, May 22, 2020

The Washington post has a great piece ("Copyright bots and classical musicians are fighting online. The bots are winning.") that illustrates a substantial flaw of copyright filters:

These oft-overzealous algorithms are particularly fine-tuned for the job of sniffing out the sonic idiosyncrasies of pop music, having been trained on massive troves of “reference” audio files submitted by record companies and performing rights societies. But classical musicians are discovering en masse that the perceptivity of automated copyright systems falls critically short when it comes to classical music, which presents unique challenges both in terms of content and context. After all, classical music exists as a vast, endlessly revisited and repeated repertoire of public-domain works distinguishable only through nuanced variations in performance. Put simply, bots aren’t great listeners.

It is well known that copyright filters cannot recognise the context of a particular use of a copyrighted work, which pretty much disqualifies them when it comes to determining if a particular use is lawful or not. The WaPo article shows that the problem runs much deeper than that. State of the art content recognition technologies (the WaPo article mainly discusses YouTube’s ContentID and Facebooks Rights Manager) are also incapable of reliably differentiating between different recordings of a work.

This is even more evidence for the fact that automated content recognition technology is simply not up to the job that proponents of Article 17 of the DSM directive have envisaged it to play. At the very minimum this means that content matches involving classical music must always be subject to human review before they can result in blocking or takedown actions.

Corona vs. the stacks of unread books

Wednesday, May 20, 2020

So far i had assumed that the (literary) publishing sector would be relatively immune to the crisis. After all people being stuck have more time to read and books are relatively easy to deliver1 So i was rather surprised to learn this moring that the Europeam publishing sector has seen a substantial decline in sales since the onset of the pandemic. According to Anne, people do read a lot more while stuck at home but they mainly read books they have already and ebooks (also due to the fact that in most European countries bookstores where closed during the height of the pandemic).

In response to this development The Federation of European Publishers and the European and iInternational Booksellers Federation have launched a call for governments to support the book sector by funding programmes that would allow libraries and other institutions such as schools to aquire books though local bookstores.

It is not very often that i am fully aligned with proposals coming from the publishing sector, but this seems like a pretty clever idea to me that would benefit an entire value chain from authors all the way to libraries and schools.

  1. Case in point my go to bookstore in Amsterdam, the American Book Center, has seen its delivery volume increase so much that it now makes sense for them to do the delivery themselves. If you order at ABC and you live in Amsterdam within the Ring, an ABC employee will deliver your order by bicycle. ↩︎

Connecting all of the demand with all of the supply

Tuesday, May 19, 2020

Meanwhile the Humboldt Institute for Internet and Society has published the recording of the Lecture by Philipp Staab that i mentioned here a few weeks ago:

In Staab’s analysis the key characteristic of digital capitalism is the ability of a few “leading companies of the commercial internet” (Apple, Google, Facebook and Amazon) together with smaller platforms that “rotate around these mega platforms” (Uber, AirBnB, Netflix, Spotify etc) to set the rules for the the markets that they control. It is this control over proprietary markets that underpins the power of digital platforms. According to Staab “.. they are the markets. For the scope of the commercial internet, they connect almost all the supply to all the demand (everyone who has a device).”

This feels like a very good theoretical conceptualisation of the current moment and helps to explain why everyone seems to be attempting to build market places these days. It also leads straight to the question of how we can imagine technology platforms that leverage other mechanisms than (privatised) markets in order to produce societal benefits.

A very similar observation is made in this recent episode of the Track Changes podcast by Paul Ford:

It feels like the idea that everything has to be a marketplace or have a transaction built in has just taken over our industry. And I think there’s more to platform thinking and thinking about ways to connect and empower people than just that, right?

Unfortunately the subsequent discussion, while certainly interesting fails to come up with a real answer to this question.

Conspiracy theories = Culture of the digital

Wednesday, May 13, 2020

In 2016 Felix Stalder published “Kultur der Digitalität” ("Digital condition"). The central theis of his book is that the cultural expressions brought forward by digital technologies are characterised by “Referentialität, Gemeinschaftlichkeit und Algorithmizität” (“Referentiality, commonality and algorithmicity”). Today Felix made the following observation:

In which he notes that while this did not come to his mind when writing the book, conspiracy theories are an excellent example of the type of culture enabled the digital environment:

They are referential (“they consist of hardly anything other than the merging of existing material which is given a new meaning”), they are communal (“not only because they are endlessly rewritten by different people, but also because they generate a shared world view and action orientation among their followers”) and they are algorithmic (“because their distribution is directly fueled by the recommendation algorithms of social media”).

I think this observation is spot on, and it fills me with joy to see a new observation perfectly fit an existing thesis/analytical framework.

"the short end of the stick"

Tuesday, May 12, 2020

In my evolving thinking about the press publishers right and the question if online information aggregators should somehow subsidise news media producers, one of the most difficult things to describe accurately is the nature of the shift of advertising business from media producers to aggregators. Describing this shift is easily misunderstod as an argument that aggregators are somehow ‘taking away’ ad-revenue from media creators. This is of course not what is happening (no business is entitled to revenue of whatever sort).

However the fact that advertisers have moved much of their business from media creators to aggregators is real and it is causing real problems for them. Over at Stratechery, Ben Thompson eloquently describes this dynamic:

This is the same idea behind nearly every large consumer-facing web service: Netflix, YouTube, Facebook, Google, etc. are all predicated on the idea that content is free to deliver, and consumers should have access to as much as possible. Of course how they monetize that convenience differs: Netflix has subscriptions, while Google, YouTube, and Facebook deliver ads (the latter two also leverage the fact that content is free to create). None of them, though, sell discrete digital goods. It just doesn’t make sense.

This model is pretty good for consumers: they get access to an abundance of content for a set price. It’s great for the Aggregators: because they have so many consumers, the suppliers of content are forced to accede to the Aggregator’s terms, even as Aggregators are best placed to serve advertisers. That is another way of saying that it is the individual content maker that is getting the short end of the stick.

What would Schuman do?

Monday, May 11, 2020

From “What would Schuman do?", an essay published the European Cultural foundations André Wilkens on the occasion of Europe Day 2020 (emphasis mine):

Is there a lesson to be drawn? What is the most essential resource of economic power today? What has the biggest potential of division and destruction today? Or the other way around: What has the greatest potential of community, sharing and solidarity? What offers the biggest potential of pooling resources? For Schuman this was not primarily money but something concrete, something which was already there but unevenly distributed and a potential source of power friction. What is the coal and steel of today? Hospital beds? Ventilators? Face masks? Toilet paper? Kurzarbeitergeld? Eurobonds? A Corona vaccine? A Corona health app? What can neutralize tension and create a European bond instead? My initial thought is digital. This is the strategic resource of today. Europe is weak and divided. It has no major digital industry and relies mainly on infrastructure and suppliers from outside Europe. Europe could be a stronger actor and a standard-setter if it pooled its digital capacity. This can connect Europeans in a safe digital space. We better pool our creativity and become our own masters rather than being just vulnerable customers of US and Chinese operators.

This of course aligns very well with what we are trying to achieve via our Shared Digital Europe project. Interestingly it seems that the European Commission is thinking along similar lines (and is going to fund exploratory research into this direction)

The revival of instagram filters? (the Article 17 kind)

Sunday, May 10, 2020

Teresa highlighted the fact that a lot of music has moved to Instagram Live over the last few weeks and that (at least in Portugal) IG is not paying a single thing to artists or labels, even though there is a lot of reuse of musical content in the form of DJ sets and the like. With more and more music moving from YouTube to IG this makes you wonder how IG/FB is getting away with this and if Article 17 of the new copyright directive (once implemented) will make a difference here.

Seems like IG is a much more interesting case to watch in order to understand if/how Article 17 works in practice than YouTube (which essentially have Article 17 compliance build in already).

Related: The NY Times has a longish piece on how hip-hop has found a new home on Instagram live which contains the following passage which calls the whole perfomance rights situation on Instagram Live “murky”:

Instagram Live is also an area of murky performance rights and song clearances. (None of those involved with the major events of the last few weeks noted any issues with copyright, but other D.J.s have complained of having their streams muted or interrupted, presumably for infringement.)

Virtual music value chains

Saturday, May 2, 2020

So these days fortnite (the battle royale game) has a separate party environment where players can hang out and party and watch live concerts without risking to be shot. Tonight they hosted a Diplo concert/DJ set. Together with the tweet announcing the concert, the official fortnite account also tweeted this:

To most people this will likely sound like gibberish, but this provides an interesting insight into the complexities of music industry value chains these days. From a copyright perspective the whole setup is pretty mind boggling:

A remix artist is performing a set that largly consists of songs recorded by others in a virtual environment. The company that runs they virtual environment feels the need to tell creators (in this context: people who stream tehir exploits in games and virtual worlds as a means to make a living) that if they stream the concert their streams will be demonetised (i.e the recoding industry will claim all the ad revenue generated by these streams) but that there will be no takedowns and no copyright strikes against them if they stream the concert.

It would be really fascinating to understand the money-flows involved in this setup. Which parts of an advertising dollar spend on a youtube video that includes footage from the Diplo concert ends up in whose pockets?

German Court on legality of sampling: it's complicated!

Thursday, Apr 30, 2020

New ruling by the Bundesgerichtshof in the more than 20 year long legal fight between Kraftwerk and Moses Pelham on the legality of a 2 second sample in a 1999 hip hop song by Sabrina Setlur. Instead if reaching a final verdict (which one might expect given that this case has already traveled all the way to the CJEU which answered questions of the BGH) the outcome is still not clear. The BGH ruling states that the use of the sample was likely legal before 2020 (before the InfoSoc directive was implemented in Germany) and likely infringing after that date, but they cant really tell because it’s complicated, so the lower court will need to take another look.

Julia Reda makes the very good point that this flies into the face of the conventional wisdom that fair use creates legal uncertainty while systems with specific exceptions and limitations lead to legal certainty. It is indeed fairly remarkable that in 2020 the European legal system has still not been able to determine if a foundational artistic technique such as sampling that has shaped multiple generations of artists is legal or not.

Evidence please!

Wednesday, Apr 29, 2020

Good op-ed by Chloé Berthélémy and Diego Naranjo in EURACTIV on the role of technology in online content moderation. This passage points to a systematic problem for the digital policy making capacity of the EU:

This appalling lack of evidence for a new legislation follows a standard pattern in the Commission’s content moderation policies: whether in the fight against child abuse material or hate speech, the Commission has systematically failed, so far, to provide any statistics on how much of the content being deleted as a result of its legislation is actually illegal or on the impact of these legislative measures.

This is of course not limited to CSAM, terrorism or hate speech. Another case in point: The article 17 stakeholder dialogue organised by the Commission to ensure (among other things) that the implementation of Article 17 of the Copyright directive does not result in automated takedowns of non-infringing content, where the Commission has so far been unable to provide any empirical evidence on the prevalence of the problems being discussed, because it does not have access to such data.

This inability of the Commission to present empirical evidence pertinent to digital policy issues is deeply worrisome and means that most policy making happens based on hearsay and prevailing sentiments (and a healthy dose of selective disclosure by stakeholders affected by such regulation). If the Commission wants to establish itself as a credible regulator in this space then it will urgently need to create the ability to collect data from digital platforms by establishing disclosure and transparency requirements and it needs to stand up capacity for analysing such data.

The Crisis of Digital Capitalism

Monday, Apr 27, 2020

Excellent talk on the Crisis of Digital Capitalism by German Sociologist Philipp Staab as part of the Making sense of the digital society lecture series this evening (the recording of the stream is not available yet but should eventually show up on the Youtube Channel of the Humboldt Institute). For me this concept of Digital Capitalism as something that extends beyond Zuboff’s Surveilance Capitalism and that is primarily characterised by privatised markets seems very useful. Highly recommend watching this once the recording is available.

"a remarkable provision"

Sunday, Apr 26, 2020

The European Copyright Society has published a Comment on the Implementation of Art.14 of the Directive (EU) 2019/790 on Copyright in the Digital Single Market calling Article 14 on the reproductions of works of visual art in the public domain…

…a remarkable provision which, for the first time in the EU, grants a positive status to works belonging to the public domain, by prohibiting any regaining of exclusivity therein.

Article 14 is by far my favorite article of the DSM directive not only because rights a wrong that has been bothering me for more that a decade, but also because how it came into existence. As a result of determination of a tiny group of people and healthy dose of luck. Having a much larger group of renowned copyright scholars call it a “remarkable provision” is hugely rewarding - thanks!

Greenwashing strong IP rights

Thursday, Apr 23, 2020

Apparently next Sunday is World IP day and for this year the bright minds at WIPOs communication department have come up with an extra clever slogan: Innovate for a Green Future! This is an almost text book example of greenwashing: Associate your product with the current societal focus on all things green. In the case of IP rights a direct association is a bit tenuous hence the detour via “innovation” (WIPOs favorite proxy for string IP rights although that correlation is highly questionable in itself).

In order to celebrate World IP day WIPO would like everyone to make a pledge to support innovation for a green future and add that pledge to a map. While this whole attempt to greenwash strong IP rights would be rather silly under normal circumstances it really makes you question WIPOs priorities. Seems to me there are much more urgent things to do like ensuring that strong IP rights do not stand in the way of making finding and distributing answers to the current health emergency. In this light it would make much more sense for WIPO to promote the open COVID pledge, which - in full respect of IP rights - is designed to ensure that finding answers to the current crisis are not hampered by strong IP rights.

The virus vs. cars

Wednesday, Apr 22, 2020

from this morning’s Playbook:

MOVE OVER, CARS: Now look at this creative use of the pandemic: The city of Brussels will give priority to those moving on foot or by bike throughout its entire city center — anything inside the petite ceinture ring road — from May. There will be a 20 kilometer per hour speed limit for vehicles.

The goal is to give people more space in the sometimes narrow streets of the inner city and make it easier for people to respect social distancing rules. But if it also helps people get used to the current, very pedestrian friendly, state of street coexistence, or persuades them to make more of their errands on foot or by bike, Socialist Mayor Philippe Close and his Green coalition partners will be the last ones to complain. These are new rules that are likely to outlast the lockdown. More here from Aitor Hernández-Morales.

This is smart and much overdue. One of the most starteling realisations of the whole COVID-19 situation is how much nicer the center of Amsterdam has become without all the car traffic that is usually clogging the place. I have wondered for a long time why on earth non-residents can still enter the center of Amsterdam by car. So i really hope that Amsterdam (and other cities) will use the crisis to radically limit the amount of vehicular trafic in the city center.

Eternal copyright?

Tuesday, Apr 21, 2020

Back in March when the scope of the COVID-19 pandemic became clear, i has somewhat jokingly suggested that it would be only a matter of time before the French would suggest an extension of the term of copyright corrosponding for the duration of the crisis to compensate artists for tehir losses (a la “Mort pour la France").

Less than a month later this prediction has now been fulfilled (well sort of). French composer (and copyright functionary) Jean Michel Jarre has proposed to create “the concept of eternal copyright”.

To be clear, Jarre is not arguing for a prolongation of individual copyrights, but for assigning copyrights to a global fund that would distribute money to creators in need, which at first sight is an interesting idea, although it would raise a all sorts of practical issues: How to make sure that this benefits creators instead of institutional rightholders, who qualifies as a creator and how to make sure that this stifle creative appropriation?

Addendum: Alek calls this “a communist version of Youtube”

Press publishers right done right?

Monday, Apr 20, 2020

from the Verge:

The Treasurer of Australia has ordered that country’s competition watchdog to create a code of conduct for Facebook and Google which would force the tech giants to pay Australian media companies for using their content, ABC News (AU) reports. The Australian Competition and Consumer Commission was working on developing a voluntary code of conduct, but told the Australian government it was “unlikely” to get a voluntary agreement around the issue of payment for content.

This comes a few days after the French competition authority has ordered Google to engage in good faith negotiations with French press publishers after Google had made it clear that it felt no obligation to pay publishers based on the new EU press publishers right.

Instead of creating a completely useless press publishers right Australia seems to plan to simply compel Facebook and Google to pay publishers for profiting from their content. At first glance this seems like a much better approach: No new right that publishers can excercise indiscriminately against anyone (except powerful intermediaries) and instead a targeted intervention aimed at dominant information aggregators. Will be interesting to see how this plays out.

Update: i wrote a longer piece about this for Shared Digital Europe

is Paul Keller providing strategic advice and doing research at the intersection of technology, copyright, culture & public policy. Depending on the task, I can shape-shift between being a systems architect, a researcher, a lobbyist, an activist or a cyclist. Say hello!

Adress: Bonairestraat 58, 1058XC Amsterdam, the Netherlands KvK: 73684848 VAT: NL002395685B68 IBAN: NL15RABO0336834225