A very technical paper

Tuesday, Sep 15, 2020

“This is a very technical paper. Unfortunately, it is so because copyright law has become too complicated.”

This is the first line in the new, updated version of João Quintais and Martin Husovec’s paper on licensing Article 17. The original version of this paper, published almost a year ago made a significant contribution to the discussion about Article 17 by arguing that Member States have in fact considerable policy options when implementing Article 17. Their argument has turned out to be extremely influential having found its way into the legal arguments made by the Commission in front of the CJEU in Case C-682/18 (YouTube), the German discussion draft for implementing Article 17 and the Commission’s consultation on the Article 17 guidance.

And while the paper is indeed very technical, Quintais and Husovec have done a really good job at making their argument more accessible in this new version. See for yourself here

"it turns out it’s much better to have an AI feeding you stuff"

Monday, Sep 14, 2020

I re-installed TikTok on my phone a few minutes ago (to the delight of the kids) because you never know. And while we are waiting for the whole banning TikTok saga to conclude (or more likely to peter out?) here is a perspective on how TikTok became what it is shaped by the constraints of operating in an authoritarian environment that i found quite interesting. From last week’s Stratechery interview with Paul Mozur on Technology in China:

The algorithm side is important and, and we just wouldn’t know and I think one thing that’s really important — I don’t know how much people agree with me on this, but I think it’s true — I think TikTok comes from censorship. I think the way you get a social network with a social feed that’s basically disconnected from friends and populated by an AI, that comes from a Chinese system basically because WeChat was created to make things not super viral, to be safe and not fall afoul of the Chinese government. So that created a space where there wasn’t a super viral really buzzy social media sort of territory or product, and that’s what ByteDance stepped in and created with a Toutiao and then with Douyin, and so to do it and make it in a way that wasn’t gonna freak out the government. Well, instead of having people, make it something you can control, and what better to do than a bunch of a series of algorithms that make things go viral and decide what goes viral, and can be cut off instantly for human review when you need to do it, and that’s the heart of where TikTok‘s recommendation engine and the design of how it’s a content delivery mechanism comes from. And it turns out it’s much better to have an AI feeding you stuff than your friends, because the AI will find way cooler stuff and be way more addictive and so lo and behold, it’s sort of unleashed on the world. Ultimately it does come from a sense of state control, but whether TikTok is actually being used in that way right now we have some smoke, there’s certainly indications, like a lot of videos about Xinjiang on TikTok seem to be very pro Xinjiang […]

Is it automatic?

Friday, Sep 11, 2020

I quite enjoyed reading through AG Szpunar’s opinion on in the the VG Bild Kunst v Stiftung Preußischer Kulturbesitz that was published Yesterday. Szpunar’s legal reasoning is a joy to read and while there are some hair-raising interpretation of core internet concepts overall the opinion shows that he does know what he is talking about.

As to his conclusion, this one is likely to be quite far reaching. He is effectively proposing a new scope of the communication to the public right in the context of hyper-linking, abandoning the all encompassing “new public” test with a more nunaced(?) “is it automatic?” test.

From an internet perspective this certainly looks quite silly. But from a copyright perspective (if one approaches copyright acknowledging that the purpose of copyright is to give creators some limited amount of control over how their creations are used) it is actually quite elegant.

I think what he proposes works well in the context of understanding the internet as people-browsing-webpages-and-looking-at-things. What i am concerned about is that this may have all kinds of limiting effects in the internet understood as machines-talking-to-machines context. It seems important to explore this notion further (which strikes me as being part of a much larger discussion about machines interacting with copyright without much human involvement, which also covers the AI and copyright discourse).

"a quid pro quo benefit"

Thursday, Sep 10, 2020

Thinking about platform regulation, i found this section from Wednesdays edition of The Interface newsletter insightful (it discusses the issue in the context of the debate of Section 230 in the US but this is equally relevant in the context of the Digital Services Act in the EU):

As it so happens, there’s a sharp new report today out on the subject. Paul Barrett at the NYU Stern Center for Business and Human Rights looks at the origins and evolution of Section 230, evaluates both partisan and nonpartisan critiques, and offers a handful of solutions.

To me there are two key takeaways from the report. One is that there are genuine, good-faith reasons to call for Section 230 reform, even though they’re often drowned out by bad tweets that misunderstand the law. To me the one that lands the hardest is that Section 230 has allowed platforms to under-invest in content moderation in basically every dimension, and the cost of the resulting externalities has been borne by society at large. Barrett writes (PDF):

Ellen P. Goodman, a law professor at Rutgers University specializing in information policy, approaches the problem from another angle. She suggests that Section 230 asks for too little — nothing, really — in return for the benefit it provides. “Lawmakers,” she writes, “could use Section 230 as leverage to encourage platforms to adopt a broader set of responsibilities.” A 2019 report Goodman co-authored for the Stigler Center for the Study of the Economy and the State at the University of Chicago’s Booth School of Business urges transforming Section 230 into “a quid pro quo benefit.” The idea is that platforms would have a choice: adopt additional duties related to content moderation or forgo some or all of the protections afforded by Section 230.

The Stigler Center report provides examples of quids that larger platforms could offer to receive the quo of continued Section 230 immunity. One, which has been considered in the U.K. as part of that country’s debate over proposed online-harm legislation, would “require platform companies to ensure that their algorithms do not skew toward extreme and unreliable material to boost user engagement.” Under a second, platforms would disclose data on what content is being promoted and to whom, on the process and policies of content moderation, and on advertising practices.

This approach continues to enable lots of speech on the internet — you could keep those Moscow Mitch tweets coming — while forcing companies to disclose what they’re promoting. Recommendation algorithms are the core difference between the big tech platforms and the open web that they have largely supplanted, and the world has a vested interest in understanding how they work and what results from their suggestions. I don’t care much about a bad video with 100 views. But I care very much about a bad video with 10 million. So whose job will it be to pay attention to all this? Barrett’s other suggestion is a kind of “digital regulatory agency” whose functions would mimic some combination of the Federal Trade Commission, the Federal Communications Commission, and similar agencies in other countries.

It envisions the digital regulatory body — whether governmental or industry-based — as requiring internet companies to clearly disclose their terms of service and how they are enforced, with the possibility of applying consumer protection laws if a platform fails to conform to its own rules. The TWG emphasizes that the new regulatory body would not seek to police content; it would impose disclosure requirements meant to improve indirectly the way content is handled. This is an important distinction, at least in the United States, because a regulator that tried to supervise content would run afoul of the First Amendment. […]

In a paper written with Professor Goodman, Karen Kornbluh, who heads the Digital Innovation and Democracy Initiative at the German Marshall Fund of the United States, makes the case for a Digital Democracy Agency devoted significantly to transparency. “Drug and airline companies disclose things like ingredients, testing results, and flight data when there is an accident,” Kornbluh and Goodman observe. “Platforms do not disclose, for example, the data they collect, the testing they do, how their algorithms order news feeds and recommendations, political ad information, or moderation rules and actions.” That’s a revealing comparison and one that should help guide reform efforts.

Nothing described here would really resolve the angry debate we have once or week or so in this country about a post that Facebook or Twitter or YouTube left up when they should have taken it down, or took down when they should have left it up. But it could pressure platforms to pay closer attention to what is going viral, what behaviors they are incentivising, what harms all of that may be doing to the rest of us.

On general monitoring - platforms being hypocrites

Wednesday, Sep 9, 2020

With the DSA consultation closed there is now the predicatble onslaught of statements, position papers and other writings (here is a highlights reel from Euractiv. While it will take some time to properly analyse all of the responses to the consultation this paid-for opinion piece by EDiMA caught my eye today.

In it EDiMA (the trade association representing internet platforms in the EU) is unsurprisingly arguing that everything is fine and that the EU legislator must leave the key principles of the e-Commerce Directive intact. Among the key pillars of the the ECD that EDIMA wants to preserve is the prohibition of general monitoring obligations in Article 15 ECD:

The Prohibition of a General Monitoring Obligation means that service providers cannot be forced to monitor every action of their users, protecting the fundamental rights of European citizens.

Now it is good thing that tech platforms care about the fundamental rights of European citizens, but this is a fairly hypocritical position for an organisation representing platforms whose entire business models are build on permanently monitoring the behaviour of their users.

While EDIMA is correct to point out that we would all be worse off should EU member states be allowed to require online services to monitor their users, the fact that they do so without being required is just as problematic for the fundamental rights of European citizens.

In the context of the discussion about a possible Digital Services Act, this means that in addition to preserving the prohibition on a general monitoring obligation we will also need to think about measures that prohibit general monitoring by platforms of their users (as part of their business models). I doubt, that once such measures are on the table we will hear EDiMA invoke the fundamental rights of European citizens.

Visionary thinking

Tuesday, Sep 8, 2020

Today the German Council presidency hosted a conference on “Datenökonomie, KI und geistiges Eigentum”. On the occassion of the event a number of the participating academics have issued a memorandum on the future of the creative ecosystem in Europe (titeled “Copyright Law 2030”) which tries to shift the very practical (cough - DSM directive - cough) discussion of the last few years towards a more fundamental discussion about the future of the EU copyright system. As part of this the authors make a number of important observations:

Relief from false expectations: As a society, we need to develop an understanding of copyright’s core tasks: Copyright law must create the proper incentives and provide access rules that, jointly, promote creativity and protect authenticity and that are sensitive to social communication practices. It is not the purpose of copyright law to protect business models.

Plurality of governance instruments. Large parts of copyright law’s current regulatory content could be left to the market and to technology (governance by technology). However, this would require an appropriate legal framework (governance of technology). Copyright law is an integral part of this framework. Thus, regulators should always inquire whether copyright law is the right means to achieve their desired objective; copyright law’s regulatory deficits shall not be tolerated with reference to other regulatory instruments.

Develop a new architecture. The copyright law of the 21st century must learn from past experience but should not stick to the instruments and solutions applied in the analogue age. Digital, internet-based uses require modified (sector-specific) regulation. One possible solution is a shortened term of protection; any renewal could be subject to fees and registration. This would incentivise right holders to evaluate the subject-matter’s economic potential and would strengthen the public domain. Publicly controlled registers could relieve the system and foster exploitation and accessibility in the interest of both stakeholders and the general public. At the same time, authors’ moral rights should be strengthened in the digital context.

Unfortunately their ideas for how any of this could be achieved (their “Theory of Change”) is rather naïve. Being academics, the authors, in an act of visionary wishfull thinking, propose that policy makers should, for once, listen to the academics.

Visionary thinking. Any modern copyright law must take into account trends and scenarios of the near future. To this end, the European academic community should work together and submit joint proposals – proposals which may put the existing European or international legal framework up for discussion. The institutions of the European Union and its Member States should promote this research programme and pay attention to its results.

This is of course not how things work in the real world and so it is high time we develop a more realistic theory of change.

From the Ministry of Justice

Tuesday, Sep 8, 2020

The Kluwer Copyright blog has published a “Third take on the Hungarian implementation of of Article 5 of the DSM directive” which feels a bit like a response to my earlier observations on the topic. This “third take” is authored by David Ujhelyi, the head of department at the Ministry of Justice, i.e one of the drafters of the law.

In response to my criticism of the procedure that lead to the introduction of the new exception, Ujhelyi makes an effort to stress the legal basis of the new law and its necessity in light of the pandemic. Reading the post it is fascinating to realize that that if one completely removes the political context (the quasi-authoritarian rule established by Orban) the actions of the Hungarian givernement are a perfectly rational response by a government responding to the pandemic.

Good riddance Zwarte Piet

Tuesday, Aug 11, 2020

Tonight dutch social media are in minor frenzy because of a relatively minor update to Facebook’s community standards that has added “Caricatures of black people in the form of blackface” to its list of banned dehumanizing comparisons, generalizations, or behavioral statements (in written or visual form). While this will seem like a sensible update in most parts of the world, a substantial portion of dutch society sees this as an attack on its national culture, because in the their view racists stereotypical depictions of people of colorin the form of “Zwarte Piet” are part of dutch national heritage. As a result there is much complaining about corporate censorship and the outsize power of social media platforms.

While it is true that this is yet another demonstration of the power to shape political discourse that social media platforms have amassed, (reminiscent of the way that Apple and Google settled the discussion about exposure notification apps by virtue over tehir power over the mobile phone operating systems) this is hardly something that the Dutch can legitimately complain about. They have only themselves to blame as they have had ample time to realize that their cherished, and deeply racist “Zwarte Piet” has been well past its expiration date.

With today’s decision by Facebook (which means that publicly funded programming featuring racist stereotypes produced by the national public broadcaster will have to be removed from Facebook going forward) and the cancellation of this year’s Sinterklaas parades because of the CODID-19 emergency it seems increasingly likely that the days of Zwarte Piet as an official sanctioned form of cultural expression are finally numbered.

Non-personalized is just as effective

Thursday, Aug 6, 2020

I completely missed this when it happend in January of this year, but it turns out that the NPO (the Dutch public broadcaster) has stopped selling targeted advertising on its web properties and has instead switched to contextual advertising. Bravo!

Now Wired reports on this change in an excellent long read that captures the NPO’s decisin making process that started with 90% of online visitors opting out of third party trackers and points to a future of online advertising that is sustainable both in terms of user privacy and economic returns for publishers:

If privacy wins out, however, and if NPO’s experience is any guide, then the future of digital publishing could be one in which a lot of money shifts back to the organizations producing the articles people want to read and the videos they want to watch. If advertisers start paying to appear in a certain context rather than to target a certain user, it will advantage publishers whose content is actually good—and put out of business the long tail of low-quality or outright fraudulent sites that currently soak up much of the money spent on automated programmatic advertising.

How to get paid on TikTok

Tuesday, Aug 4, 2020

It seems like everyone has a to have a take on TikTok these days, including David C Lowery over at The Trichordist who chimes in to argue that along with the US treasury getting ‘key money’ songwriters should also get tehir share of the spoils of a forced sale of the platform:

Songwriters have been forced to finance the hyper growth of the social media phenomenon. So why shouldn’t they be rewarded like any other venture capitalist? Further why should the venture capital firms like SoftBank be rewarded for knowingly financing an apparent criminal RICO racket. Give songwriters their share. […] Given the scale of the apparent willful infringement and the rumored $30 Billion price tag for TikTok. Two billion dollars is quite reasonable.

Lowery argues that songwriters have seen no income from TikTok (while music publishers and record labels have managed to make deals). And while it seems that this description is largely accurate, it is also worth noting that in the EU collective management organisations representing songwriters are still in the negotiations with TikTok. As the IPkat notes:

The music industry and collecting societies for rights in musical works have been trying to negotiate agreements with TikTok, threatening legal action against the social media platform for copyright infringement in the absence of such an agreement. They want to see songwriters, composers, musicians and artists directly remunerated for the use of their songs on the social media platform by way of royalty payments.

Last year, ICE (a joint venture representing the digital music rights of PRS in the UK, GEMA in Germany, and STIM in Sweden) attempted to reach an agreement with TikTok that ended up being referred to the UK’s Copyright Tribunal in July 2019. However, by December 2019, the dispute was withdrawn from the tribunal, as the parties announced that they would be entering into arbitration to agree the terms of a licensing deal that would include retrospective use of copyright material on TikTok. The outcome of the arbitration is yet unknown.

It will be interesting to see which approach will result in songwriters getting paid. My money is on the EU collecting societies, rather than on President Trump suddenly starting to care about poor songwriters.

In the meanwhile the IPkat entertains the question if TikTok videos qualify as parodies and are thus covered by the - now mandatory - parody exception:

This Kat is wondering if the videos created on TikTok are parodies? In the UK the government guidelines say that a parody for the purpose of the copyright exception is “a comedian may use a few lines from a film or song for a parody sketch.” They UK law states: “Fair dealing with a performance or a recording of a performance for the purposes of caricature, parody or pastiche does not infringe the rights conferred by this Chapter in the performance or recording.” Does a 13 second sound clip, used for the purpose of a musical-meme qualify?

Does a 13 second sound clip, used for the purpose of a musical-meme qualify? This Kat consulted Sabine Jacques’ book on Parody; where she says “a parody is something distinct from a mere re-working or altered copy. A parody communicates a new distinctive message from the earlier work it reproduces, and typically results in the creation of a new expression which may be eligible for copyright protection.”

We know that, at least under Chinese copyright law, these videos can be eligible for copyright protection. Perhaps some of the videos uploaded to TikTok might be considered a parody – for example, when a user creates a funny lip-syncing video using a sound clip from a reality TV show, to create a new scene. However, when users simply copy a dance routine to a song, this Kat is of the opinion that this is simply a re-working and does not create a new distinctive message. Therefore, whilst it is possible that some of the user’s videos fall within the parody exception, probably most of them do not. In any event, it would seem that even if the users’ videos were considered parodies, that TikTok’s use of the sound clips still require a copyright licence.

As i have argued elsewhere, it seems to me that the pastiche exception would be a much better fit for the creative practices that have developed on TikTok. In a recent paper Prof Martin Senftleben has argued that the various definitions of “pastiche” are a surprisingly good fit for what is happening on TikTok:

The Merriam-Webster English Dictionary defines “pastiche” as “a literary, artistic, musical, or architectural work that imitates the style of previous work.” It also refers to a “musical, literary, or artistic composition made up of selections from different works.”69 Similarly, the Collins English Dictionary describes a “pastiche” as “a work of art that imitates the style of another artist or period” and “a work of art that mixes styles, materials, etc.”

As Senftleben outlines in his paper, a remunerated pastiche exception could serve as a way to ensure that creators remain free to post to TikTok while at the same time making sure that songwriters, composers, musicians and artists would be remunerated for the use of tehir works on TikTok (and other platforms). Seems to me that such an approach is much preferable to the current state of affairs described above.

Virtual Theatrum Anatomicum

Monday, Aug 3, 2020

Back to work after the summer break. My first (real!) meeting of the day was at Waag to provide input for their research on the possibility of building an “Online European Public Space”". The three person meeting was held in the Theatrum Anatomicum which Waag has configured as a socially distanced meeting room, which, ironically, made me think of this work (credited to Colin Lyons), which i had come across online during my vacation:

Context: Rembrand’s Anatomy Lesson of Dr. Nicolaes Tulp depicts the Waag’s Theatrum Anatomicum.

EU, the worst of the four internets?

Tuesday, Jul 21, 2020

Ben Thompson has a publicly available follow-up post that expands the yesterdays analysis into a model of “four internets” (US, China, EU and India) in which he doubles down on his criticism of EU style internet regulation:

Europe, through regulations like GDPR and the Copyright Directive, along with last week’s court decision striking down the Privacy Shield framework negotiated by the European Commission and the U.S. International Trade Administration (and a previous decision striking down the Safe Harbor Privacy Principles framework), is splintering off into an Internet of its own.

This Internet, though, feels like the worst of all possible outcomes. On one hand, large U.S. tech companies are winners, at least relative to everyone else: yes, all of the regulatory red tape increases costs (and, for targeted advertising, may reduce revenue), but the impact is far greater on would-be competitors. To put it in allegorical terms, the E.U. is restricting the size of the castle even as it dramatically increases the moat.

E.U. citizens, meanwhile, are likely to see their data increasingly protected from the U.S. government, which is a win; other protections, meanwhile, seem unlikely to be particularly effective or outweigh the general annoyance and loss of relevance that comes from endless permission dialogs and non-targeted content. Moreover, per the previous point, the number of alternatives to established incumbents are likely to decrease, particularly relative to the U.S.

It also seems unlikely that European competitors will fill in the gap. Any company that wishes to achieve scale needs to do so in its home market first, before going abroad, but it seems far more likely that Europe will make the most sense as a secondary market for companies that have done the messy work of iterating on data and achieving product-market fit in markets that are more open to experimentation and impose less of a regulatory burden. Higher costs mean you need a greater expectation of success, which means a proven model, not a speculative one.

Worst of all, at least from the E.U.’s perspective, is that this approach doesn’t really have any upside for European governments. That’s the thing with rule by regulation: without a focus on growth it is harder to create win-win situations.

Again what this misses is that Europe might be shifting away from a model where the online services dominate the online space. This criticism only holds when one assumes that the online space is one that must be treated as a market where growth is the primary objective. In the concluding sentence of the post, Thompson correctly observes that…

What differs Europe’s Internet from the U.S., Chinese, or Indian visions is, well, the lack of vision. Doing nothing more than continually saying “no” leads to a pale imitation of the status quo, where money matters more than innovation.

which makes it clear that his analysis should not be read as a criticism of regulation but as a reminder of the need for a more ambitious vision for a Shared Digital Europe.

Is the EU worth the trouble?

Monday, Jul 20, 2020

Not entirely unexpected Ben Thompson has a slightly different view on the Schrems II ruling [subscribers only] that i discussed here last week. His analysis places the ruling in the context of the larger more regulation benefits dominant players that can more easily shoulder the cost of regulatory compliance argument (that also constitutes the core of his criticism of the GDPR):

Speaking of Facebook, many of the usual suspects are hailing [Schrems II] as a loss for the social network in particular, which makes sense given that the underlying case was explicitly about Facebook’s transfer of data. It seems pretty obvious, though, that the implications are going to be similar to GDPR: pain on an absolute basis for Facebook and other Internet giants, but far greater pain on a relative basis for basically everyone else, including would-be competitors.

Even once SCCs are knocked out, though, the solution for a company like Facebook is pretty obvious: simply build out data centers in the E.U. that import algorithms and machine learning models from the U.S., while doing all data processing locally. Sure, this is going to be more expensive and less effective than treating all Facebook data the same, but Facebook can afford it — as can Google, Microsoft, Amazon, Apple, etc. Things will be much more difficult for smaller sized companies; expect increased reliance on the big cloud providers to offer geographic data management as a service.

Still, while this is obviously another reason for the U.S. to consider its own national privacy law (which, notably, is the best way to address The TikTok War), the biggest losers are likely to be European citizens. Not only will this ruling reduce the likelihood of services entering the E.U. market, but another casualty will be companies considering opening E.U. offices, or hiring E.U.-based personnel. Is it really worth it to run a separate data center for that free-lancer in Belgium, or that five-person team in Berlin — not to mention the increased legal risk that comes with local operations for sales and services from the U.S.? If you’re not a big company, it’s increasingly hard to see how the E.U. is worth the trouble; perhaps E.U.-based companies will pick up the slack.

So what Thompson is missing here is that from the EU perspective this outcome looks more like a feature than a bug. In the long term a EU digital strategy cannot be based on foreign “services entering the E.U. market”, but must be based on EU services operating from a strong home market (even with the UK gone, the EU still has a population of 445 million). Having strong privacy rules in place and requiring an equal level of protection from government surveillance for anyone touching personal data from EU data subjects can (and should) be a competitive advantage. Especially since nothing in the Schrems II ruling should prevent EU based services from processing data from outside of the EU in the EU even it comes from countries where government surveillance is rampant.

Moving towards Splinternet

Thursday, Jul 16, 2020

It will probably take some time before the significance of todays CJEU ruling in Schrems II case will become apparent. With the court invalidating the Privacy Shield and stipulating requirements for the Standard Contractual Clauses that are very hard to fulfil for US companies (in its ruling, the court has already more or less concluded that the US doesn’t fulfil them) there seem to be 3 basic options:

  1. The Commission will simply ignore the ruling and it will be business as usual
  2. The platform companies will push for fundamental reforms of the US surveillance system (as Schrems seems to hope)
  3. We will see a further splintering of the internet with US platforms moving parts of their operations to Europe and separating them from the rest of their operations.

It seems to me that the third option is the most interesting here, because it would increase Europe’s regulatory leverage over the digital space. This would of course come at the cost a further splintering of the Internet as a truly global communications platform (although we need to be carefull here not to conflate the dominant platform intermediaries with “the Internet” as such). This sprintering fits into a bigger pattern that is already well underway and may fundamentally undermine the US hegemony in the online environment. Over on stratechery Ben Thompson describes this pattern in the context of the discussion about the US possibly banning TikTok:

First, if it becomes generally acceptable for nation-states to block apps, Facebook is one of the biggest losers. Currently the service is dominant almost everywhere but China, which means it has a lot more to lose the more splintered the Internet becomes. This is something for the U.S. to think about more broadly: the dominance of U.S. Internet companies all around the world is a real strategic advantage, and banning TikTok may win a battle and lose a war.

Vive l’interopérabilité!

Thursday, Jul 9, 2020

As expected, the French Senate voted last night to give the French government the power to implement the provisions of the DSM directive by way of ordnance/decree. This authorisation measure is part of a larger legislative package that seeks to implement a number of different EU Directives into French law.

While the addition of this authorisation measure was to be expected, another addition of to the law comes as a bit of a surprise: Against the advice of the government, the Senate also adopted an amendment that introduces sweeping provisions requiring the interoperability of online platforms.

While there is a lot of talk about interoperability in policy circles these days, legal requirements for interoperability of online platforms do not exist yet. Instead many observers expect such requirements to become part of the Digital Services Act that is slowly taking shape in Brussels.

Yesterdays surprise vote in the Senate has the potential to dramatically change the landscape here. The measures adopted yesterday would give French regulators broad powers to enforce interoperability of online platforms including the power to require platform operators to “implement technical interoperability standards identified by the authority”.

Should the text adopted by the Senate indeed become law (which seems likely at this point as the final vote in the National Assembly will be a simple yes/no vote that does not allow for further amendments of the text), France might have just supercharged the discussion about platform interoperability without anyone noticing.

Longing back for the remote control (that i never had)

Wednesday, Jul 8, 2020

For the fourth of our ongoing series of Open Future Sessions1 we were joined by Renata Avila who gave a presentation on openness, Big Tech and capitalism for which she had provided us with the following teaser:

“YES! It is a bird, it is a plane, it is Big Tech! Together, we will reverse engineer the term and what it means when we discuss it. It is important to understand the power architecture and which ones are the truly blockers of an open future. And why”.

This turned out to be an extremely insightful presentation that kickstarted a discussion on how to measure the adverse affects technology companies have on “openness” where openness. At some point during the discussion Renata described the current situation as one in which “the remote control has been removed and now it is the system that feeds us”.

As someone who grew up without remote controls (and largely without television) it is a very strange idea that a remote control could might be a signifier of a healthy media diet.

  1. A series of private conversations about the future of open that Alek and I are hosting ↩︎

The French are pulling an Orban

Tuesday, Jul 7, 2020

It increasingly looks like the French government has taken inspiration from the Hungarian government’s approach to implement the Copyright Directive: As previously reported by NextImpact (and after a brief period of uncertainty caused bet the appointment of a new government), the new government has now tabled an amendement to the so called “Ddadue” law that would give it the power…

… to take by ordinance any measure of a legislative nature designed to:

[…] (b) To amend the provisions of the Intellectual Property Code with a view to transposing into French law Articles 2-6 and 17 to 23 of Directive 2019/790 of the European Parliament and of the Council on copyright and related rights in the digital single market and amending Directives 96/9/EC and 2001/29/EC, and by making the adaptations and material, legal and editorial corrections and adjustments made necessary by the Directive in this Code;

Once adopted (the first reading in the Senate is scheduled for tomorrow evening, but it is unclear to me if and how this would also need to go to the Assemblee Nationale) this would allow the government to implement Article 17 of the Directive without any further parliamentary scrutiny. While manoeuvre seems to be primarily designed to speed up the national implementation of the provisions of the DSM directive1, it is still a very worrying sign, that the French government is willing to sidestep parliament for a legislative project that directly touches on various types of fundamental rights.

The existing French implementation proposal lacks a number of the user rights safeguards required by Article 17 of the directive and adopting this flawed text without parliamentary scrutiny and ahead of the European Commission’s implementation guidance would further weaken its legitimacy.

  1. Given the majority that the givernement enjoys in parliament, the ordinary legislative proposal (part of the “Projet de loi relatif à la communication audiovisuelle et à la souveraineté culturelle à l’ère numérique”) which has been stuck in committee as a result of the COVID crisis, was unlikely to attract significant opposition. ↩︎

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!

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