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Today, we start with Julia
Reed. She's the member of the European
Parliament for European Pirate
Party and vice chair of the
Greens EFA group and
her first talk at thirty one
C three.
She talked about Kopi wrongs.
And now we go one step
further to copy Wrongs 2.0,
the status yours and give a warm round
of applause, please, for Eugena.
Hello, everybody, I was here two years
ago for a thirty one see free.
And back then I was a freshly elected
member of the European Parliament.
And I was quite optimistic that finally
the time had come for a meaningful
copyright reform in Europe.
And actually things were going OK
for about a year.
The parliament actually proposed some
improvements to copyright law based on
my initiatives.
And then nothing really happened
for about a year until
everybody's favorite year came around
2016.
If you think that 2016
was a terrible year, ask a
copyright activist.
Within one week in September
to pretty dramatic things happened.
First, the European Commission released
its proposal for the long awaited reform
of copyright law.
And you're going to hear me rant about it
for the next hour or so.
That gives you an idea of about
how bad it was.
And the other thing that happened during
that week was that the European Court
of Justice made a ruling where
it decided that hyperlinks can constitute
a copyright infringement.
So you would think that a person who
is thinking is not
the one who is actually putting the stuff
online so they shouldn't be liable
for copyright infringement.
However, the European Court of Justice
asked itself, well, what if the
person who is linking to that content
actually knows that their content is
illegal?
They think in this case there should be a
copyright infringement.
So they decided that this is the case
now. And then they decided that if
this link is made with a profit motive,
somebody is trying to make money, then
you can pretty much assume that they know
that whatever they are linking to is
a copyright infringement.
And they actually have to prove that they
didn't know, which is quite a difficult
thing to do.
So in this particular case, it
was about a right wing populist
website that was for profit
that was linking to unreleased Playboy
photos. So you might think, OK, maybe
I don't feel too bad for them
specifically, but what does it
actually mean for other websites?
Will they now have to monitor
continuously everything that's going
on on the website that they have said
link to?
To find out, we can look
at one ruling that already took place
based on that by everybody's favorite
court, the district court of Hamburg.
I see there are some some fans of
the district court of Hamburg in the
audience, so the district court of
Hamburg had a case where somebody
had linked from their own website
from the About Me page to a different
website on which there was a photograph
that looked a little bit like this.
It's not exactly this picture, actually,
with some UFO, UFO and
this photo had been modified.
The photographer of the original
picture without UFOs had put the
photo under a Creative Commons license
and the person who put it
on their website actually attributed it
to the correct photographer.
However, they did not mention that the
original picture actually didn't contain
UFOs, so therefore it was a
copyright infringement.
So the court decided
that since the website owner of the
website who linked to this
sells educational materials
on the same domain, not on the About Me
page and not related to this
particular link, they have a profit
motive for that link, which is quite a
stretch.
So the defendant in this case, the person
with the About Me page, had an obligation
to actually verify that everything on
the website there were linking to is
legal.
He's a journalist, tried this out in
practice and actually wrote to the court
asking, hey, I want to write about this
court case and I want to link to the
website of the District Court of Hamburg.
Can you please verify to me
that everything on your website is legal?
For some reason, the court didn't want to
do that.
So if you have a website yourself,
you may wonder now hang on, I have
some links on my website.
Am I actually committing copyright
infringement?
I can help you there.
It's quite easy to find out with this
handy chart.
So whether your link
is a copyright infringement
depends on whether the link tries
to circumvent a paywall, whether
it was published or the thing that you're
linking to the content that might be
infringing, whether it was published with
the rights holders consent or not,
whether you as the website
owner who is linking have a profit making
intention, whether you knew that the
content you're linking to was unlawful.
All these things can have an impact
on whether your links are legal or not.
So the claim that the link is under
threat from copyright law is by no means
an exaggeration at this point.
And what neither court considered,
neither the European Court of Justice nor
the District Court of Hamburg, is the
following scenario.
So if linking to an infringement
can be an infringement of copyright
law, shouldn't then linking to the
link to the infringement also be an
infringement of copyright law?
So anyone who was wondering
whether their website is violating
copyright law at this point, chances
are if the website is in any way
commercial, then the answer is yes.
But not everything about
2016 was bad.
There are some good news I can report.
There's this.
Gunter Etinger, the digital commissioner
who is responsible for
copyright law in the European Commission
but perhaps best known for
being too close to lobbyists, for
example, flying around in that private
plane, the guy who called
net neutrality, the net neutrality
defenders, Taliban and used
racist slurs for Chinese people.
This guy is leaving.
He's leaving his post as digital
commissioner.
It's not entirely good news,
unfortunately, because he's actually
being promoted to be the commissioner
responsible for the EU budget and human
resources.
That means, among other things,
it will be his job to enforce the code of
conduct for commissioners that says
how they have to deal with lobbyists and
their diversity strategy.
So that's an interesting choice.
But at least for us, we can
say he's gone.
Unfortunately, he
left a copyright proposal this
September and this proposal is here to
stay.
This copyright reform actually could
have been great. Two years ago when the
new commission was starting out, there
was actually a wide acknowledgment
that there was a problem with copyright
law, that it was too complicated.
But the appointment of
the digital commissioner was a bad sign
already. Back then, unfortunately,
he surpassed even our worst
nightmares and managed to make a proposal
that achieves the unimaginable
to make a bad situation even worse.
This proposal, even though Commissioner
Etinger will no longer be responsible for
her, for it, is now out of the hands
of the European Commission.
So the guy who is taking over
Vice-President Ansip, he will still
participate in negotiations.
But mostly this will be up to
the European Parliament and the council,
where the national governments of the EU
are organized and both of these
bodies can reject the proposal
or make changes to it.
So this is where we are going to have
to change and to stop this legislation.
And in order to show you why
I have prepared 10 everyday things
that would become illegal.
You won't believe number eight.
No one sharing news from
20 years ago.
So if you have a website with a list
of online news articles, for example,
about the copyright wars, with
short quotes like this,
you better take it offline because before
this law becomes
is in place, number two,
tweeting a creative headline.
So here you don't actually even have to
link to any newspaper content.
The publishers are getting a
new ride and they hope that in a case
like this where you're tweeting Business
Pops, it's a famous headline from
a German tabloid newspaper, Bild,
after the election
of the last pope.
It means we are the pope.
And the publishers hope that
whenever you tweet something like this,
Twitter will pay them a blanket blanket
license for that in order to keep it
legal. But if they don't do that
and I don't think they will, then you
will be liable for copyright infringement
or this new publishers right infringement
if you tweet something like this.
Number three, sharing a magazine
article on social media, Twitter
and Facebook and a lot of other social
media create automatic previews
from a Eurail look, something like
this.
This will be no longer
legal. They would have to disable this
function and not just for links
to news, but also any
magazine article or any
blog article, as long as the blog has
multiple offers.
Number four, pinning a photo
to a shopping list using Pinterest
or another visual bookmarking
service like this.
Number five, indexing the web.
Luckily, not all of the Web, I mean,
the problem here is that a search engine
that is indexing the Web for you and
showing you search results
will have to make copies of those indexed
Web pages.
This will no longer be allowed for news
websites, magazine websites and blogs
unless they have given specific
permission for it.
No.6 unmonitored
photo uploads if you're using
a host provider such as Photo Community.
This is a website where people are
sharing their photographs.
This company will have to make
sure that whenever somebody uploads
something, that it is not
a copyright infringement.
So they will have to scan all the photos
that are being uploaded for a potential
copyright infringement.
And this applies to all kinds
of different copyrighted content, such
as, for example,
software.
So this obligation can
apply to a platform such as
GitHub, which is also a file hoster.
And if you're uploading your permits
there, they may very well be under a free
license.
However, they are still protected
by copyright, so they will have to make
sure that nothing illegal is being
uploaded. Their number eight,
the same will go for Wikipedia.
So you may think now,
OK, all the stuff that is on Wikipedia
is either already in the public domain
or is Creative Commons.
So what is actually the point of this?
Unfortunately, this new law does
not distinguish between
hosting platforms where there actually is
a significant problem with copyright
infringement or not.
So unfortunately, platforms like GitHub
or Wikipedia would be affected by this.
And nine, I think this one is a
little bit less of an everyday thing
than the other examples, at least for
now. If you want to train your artificial
intelligence with
publicly available content on the
Web, such as large bodies of texts
or pictures, you
will have to probably make copies of
them in some form.
And the new proposal may also
cause problems with that.
And finally, number 10, all
the stuff that is already illegal that
makes no sense whatsoever is
going to remain illegal because
almost none of the many, many things
that all of you and lots of other people
have highlighted to the commission as
being fundamental problems with copyright
law have not been addressed
in this proposal.
So, for example, taking photos
of architecture
in or public artworks
in public places will continue to be
a copyright infringement in many European
countries and also the
large amounts of online pop culture
that are going on that are not really in
line with the copyright laws, such as
reaction GIFs, let's play videos,
dubs at remixes.
They are not being addressed at all.
So people will continue to do a lot of
great cultural activity that
just doesn't really fit the copyright
system. And this one may surprise
you a little bit.
One hosting provider that actually won't
be affected by these laws at all is
Megaupload.
The law is not actually aimed at sites
that that play fast and loose with
copyright. It's meant to get
the really big moneymakers, the social
networks and the search engines
Google mostly to pay money to
struggling European cultural industries.
And this is all that this law is
aimed at. So how can you get
such wildly contradictory
and weird results?
Well, there are two proposals in this
new draft copyright law that
Etinger has presented that
cause all these problems.
One is an attack on the hyperlink beyond
all the problems with linking and
copyright that we already have.
And the other one is an attack on
the legally sound hosting
of files on the Internet.
So the first one is
it comes in the form of a new
extra layer of copyright protection
for the benefit of publishers.
This is the so-called neighboring right.
And it applies on
top of the copyright that journalists
already get in the articles they write
and that they usually transfer in the
form of exclusive rights to the
publishers. So it's not like the
publishers cannot enforce
journalists' copyright at the moment, but
this is an extra layer of
protection that would apply
in addition to the already existing
copyright.
This is the legal text or part
of it where you can see,
OK, we are talking here about a new
protection for press publications
for which will allow the publishers,
on the one hand, to control the copying
of those articles and the making
available of those articles on the
Internet.
And this ride lasts for
twenty years after publication of
a press publication this may sound
familiar to.
There has been something similar
introduced in Germany a few years ago
where the the amount
of protection is one year because they
consider it well, actually, news articles
are not that valuable after a while, but
they consider 20 years is a good
time for this new protection
and it would actually apply
retroactively.
So that means if you are running a
website with a list of news stories about
the Napster case, with quotes
from articles about the copyright wars
in different ways, this will be
illegal.
You may think now.
But wait a second.
Isn't quoting generally legal?
Isn't there copyright exception that
allows us to quote?
Well, in a lot of European countries,
the quotation exception, for example,
in Germany only applies when
the quotes are in the broader context
of criticism or reviews.
So simply having a list of interesting
articles where you are
taking the headline of that article or
short part of the text wouldn't count.
You actually would have to write some
kind of academic treatise about the
thing and
who is actually the intended
target of this proposal.
So what is trying to achieve?
Who does he want to pay
money for this for these
new snippets to the publishers?
He has actually answered that in a number
of interviews.
And what he said there is the targets are
Twitter, the iPhone
tablets and Facebook.
I think it gives you a bit of an idea of
his technical understanding between
the differences between an online
service, a particular company's product
and a technology.
But OK,
I think the the gist of it is
that the kinds of automatic previews that
a lot of social networks do
when you post to your URL will no
longer be allowed.
And you really have a problem if the
URL itself already contains the
headline, which, let's face it, is not
that uncommon.
So and it's also it's
very odd to see how how
this would play out, because the
publishers actually employ
social media experts who optimize
these previews to make sure that as many
people as possible click on them and they
change the codes of their websites to
make sure that exactly the right pictures
and text are chosen for those previews.
But even though this
law goes beyond the failed
German version of this law, the license
should threshed.
The logic is quite the same here.
We look at which companies are making
money in the Internet ecosystems, all
they're all American tech companies.
Let's take that money from
those companies that are sending traffic
to the German publishers
who, by the way, are also lobbying for
this law. And let's have
them give this this money
on top of the traffic that they're
already sending them
to. Attinger has also told us something
about what exactly
how short a tax can be.
So it applies to it.
And he says that, yes, headlines
are intended to be covered by this.
So this really creates a problem for
hyperlinks where very often the headline
is part of the URL.
And he says, we're not talking about
purely factual headlines like airplane
crash in Africa.
I think he thinks that Africa is a
country.
Otherwise, I'm not sure why
he thinks this is a common headline.
But in any case, there is nothing in the
law that actually exempts single
words or small snippets of text from
this protection and urging,
and the publishers keep saying that
individuals won't be affected by this
law, but actually there is no exception
for private individuals or for
noncommercial use in this law, unlike
the German one, by the way.
So something like Via Bits and Pops
will be an infringement under this new
law. And unlike what Uttinger says
here, it probably won't matter
at all whether it's a purely factual
headline or not, because these
neighboring rights to copyright don't
have a requirement that
the thing they protect is an original
intellectual creation because the
publishers aren't originally
creating anything in the first place.
So the only way that somehow
factual headlines could be exempted is
if a court decides we can't actually tell
whether it was taken from this newspaper
article or from another one.
So what what is up with this
indexing thing?
I think this is probably a really big
problem with this law that not everybody
has a fully considered because
the indexing, of course, of websites
creates copies.
And you may think, well, if somebody
takes a full copy of an article,
isn't that a copyright infringement
already? It would be.
But so far this is legal under the
only mandatory copyright exception
that all of the member states in the EU
have to do, which allows
the copy in the making of so-called
incidental copies that are part
of a technological process for
the sole purpose of enabling a lawful
use. So you could say, of
course, so far the displaying of search
results has been a lawful use.
Therefore, this kind of copy that is just
necessary for search engines is
not an infringement.
However, as soon as the search
engines are no longer allowed to show the
snippets of news articles, of
course the indexing
of news websites will
no longer be legal either.
So that's a bit of a headache and I'm
not sure they have fully considered this
so.
When you look at the definition of
a press publication, which is the stuff
that's going to be protected by
this new right, it's not just
about news articles
as such, but rather everything
that is published in a press publication
online.
So this could include, for example, what
they call other works, could
be pictures or stuff like that.
And this is why Pinterest, for example,
that only allow you to pin pictures,
will have to negotiate a license with the
publishers.
However, I don't think that Pinterest
will be too much up in arms about this
proposal because they have a much bigger
problem.
The Article 13 is probably
the most dangerous of this new proposal.
It contains a the
monitoring obligation for most providers
that I have mentioned earlier.
So who is covered
by this new obligation?
It's hosting providers
that store and provide to the public
access to large amounts of
works uploaded by users.
So when they fall under
this definition, they will have to
choose between two alternative
obligations.
Either they get a license from the rights
holders, probably from collecting
societies or large rights holders
organizations, and they will have to
make sure that those licenses are
enforced.
And helpfully, in the recitals
that go along with this proposal, the
commission suggests that they
could enforce them by using content
monitoring technologies.
If they don't want to do that, then they
have to prevent the availability of
copyrighted works identified by the
rights holders, for example, by using
content monitoring technologies.
So those are the two options.
If you're familiar with Internet law
a little bit, the way it works at the
moment is if you run a file holster
and somebody notifies you
that there is a copyright infringement
on your service, you have to take it
down. It's a notice and takedown
procedure and
the preventing
availability that is included in this
new provision, of course, implies
that these retroactive takedowns after
the infringement has already taken place
will not be enough anymore.
Preventing availability means
that the content needs
to be controlled and scanned before
the upload actually becomes accessible
to the public.
And if you're looking at this, it
might all look a little bit
familiar to you.
And there's clearly an elephant in the
room here, and that's YouTube.
If you look at the analysis, the economic
analysis of why the commission is doing
this, it all comes down to the music
industry complaining about YouTube.
And
this is connected to their content
ID call monitoring system that
is used to find protected
pieces of music on YouTube.
What the music industry has
done about YouTube
so far as they have tried to enter
licensing deals with YouTube.
And actually these licensing agreements
are in place in most countries.
But the rights holders are not very happy
with those deals because they think that
YouTube doesn't pay enough.
And this is this new
law is their solution to this problem.
So they want to make the licensing
deals that they already
have with YouTube the less painful
option, because the other
option, the content monitoring
technologies in the case of YouTube,
is something that YouTube only offers to
a relatively small number of smaller
rights holders. So content ID is not
available for everyone who uses YouTube.
And they think that if YouTube can no
longer threaten.
OK, well, if you don't take our licensing
agreement where we pay you very little,
then we'll just take down all the
content. But the rights holders actually
want to be on YouTube, so they're in a
very weak bargaining position and
they think that this law will somehow
make it so unattractive for YouTube to
to take down the content
that they will pay them more money.
It's a bit of a gamble.
And it's also not a very obvious way of
addressing this problem, because
unfortunately, you can't pass a
law that only applies to YouTube.
They've tried, believe me.
So this law would, of course, apply
to all kinds of false providers
and all types of copyrighted works
as long as there are large amounts
uploaded by users.
So the question
of why get up now falls
under this? Well, you can look at the
content that is stored there.
It's software.
Software is covered by copyright law.
And the question is, is
GitHub an information society service
provider that provides
access to large amounts of works uploaded
by users?
So an information society service
provider is a service that is provided
and it says so in another law.
Normally for remuneration.
So what does that mean normally for
remuneration?
It means that, for example, if
GitHub or also photo community
are freemium services, which they are.
So there's a free version of it, but you
can pay to get some extra feature
then it's a service normally provided by
for remuneration.
So they're covered by this.
However, also noncommercial
health providers can accidentally
be covered by this provision.
A service normally provided
for remuneration can be, for example,
a service that regularly asks for
donations.
And this is where Wikipedia comes in.
And even something like archived
dot org where academics
are uploading articles could be covered
by this new provision.
If there are a similar services available
that do charge money that are in some
way in competition with archive.
So in this way, even a service that
is completely noncommercial and
completely for free to use can
still fall under this definition.
You may also wonder,
well, is this really a problem for
archive dot org or for Wikipedia?
Because there aren't really a
lot of infringements taking place
there. But nowhere
in the Article 13 does it actually
say that this only applies to
host providers with large amounts of
copyright infringement.
That just says large amounts of upload.
It works.
So licensed content
or articles
that have already been published with an
academic publisher and then are put on
archive would very well fall under this
definition. Then there's a final
question. What exactly large amounts of
works means?
It's completely undefined and
probably the 28 member states of the
European Union would find different
definitions of this.
So that's a great idea if you want to
encourage trade.
But all of these services that I've named
host well over a million works
so we can assume that they would all be
covered.
So that means that
most providers find themselves in a very
difficult position under this new law
because they must either pay
rights holders for content they don't
really want to use in most cases
or start filtering everything that's
uploaded.
But filter for what exactly?
I mean, the YouTube case is relatively
straightforward and maybe the photo
community case as well.
If you're looking for recordings of music
or photographs, you can use the
fingerprinting technology where you check
every upload against the reference
database.
It's not completely trivial, but it's
doable.
Unfortunately, copyrighted works can
be all kinds of things.
For example, the sculpture on this slide
is protected by copyright.
And a photograph of this sculpture,
at least if you're in a country without
freedom of panorama, would also be
a copyright infringement, which means
that this technology would actually have
to identify a photograph of
this sculpture from every possible angle.
Translations of texts can be
copyright infringement.
So the software would need to make
sure whether a translated text is
actually equivalent to the same text
in another language that is protected.
Also using a character from
a popular novel or a popular film
in your own film or using
code of somebody else in your own
software without respecting the license
conditions, for example, because you
didn't post the GPL notice.
All of these can be copyright
infringements and they are not as easy to
detect as somebody has uploaded a music
video to YouTube.
And as we have
learned in the beginning, hyperlinks
can be a copyright infringement
if the person who linked
to the infringing content had knowledge
that it was infringing.
So what does that mean for those
providers? Will they have to scan
not just the content that users upload,
but also the content on websites of
the that the users link to
possibly the content of websites
that link to the websites that users
link to?
And will they have to scan users brains
to find out whether they knew that this
was a copyright infringement?
So it's a very difficult
technological challenge, I think.
But at least you'll all be
getting a lot of work from this.
There's just one big problem
with letting us plan.
Aside from the kind of technological
issues there are, there's a legal
problem, and that is that this new
proposal violates existing EU
law.
Remember the current notice and takedown
procedure that I've told you about?
It protects those providers and
also other types of providers,
such as Internet service providers and
intermediaries from liability
for the actions of their users.
This is written in the E Commerce
Directive, another piece of EU
legislation.
And this e-commerce directive
includes what is called the safe harbor.
And the safe harbor means as long as
a. Provider takes down illegal content
as soon as it gains actual
knowledge about it, then they are fined.
They're not liable for what the users are
doing.
So how does that fit?
I mean, in the same law, it actually
says explicitly that
these intermediaries cannot
be forced by law to scan
everything that the users upload.
They only have to do the notes and
takedown. So how can the providers
prevent the availability of specific
works on their services without scanning
everything that is uploaded?
The commission's quite creative
solution to this is
that in the recital's of this new
proposal and recitals are supposed
to be explanations of a new
law that don't change its content
that much. In these recitals, they simply
redefine what an intermediary
health provider is under the e-commerce
directive by saying that the
safe harbor only applies to a host
provider if they are not
optimizing the presentation
of the upload it works or promoting
them, even by automated means.
So that means that Wikipedia or GitHub,
who are actually presenting the uploaded
content in a meaningful way, providing
search functions, providing articles
of the week, etc., they
would no longer fall under the safe
harbor and would be directly liable for
any copyright infringement by the user.
But Megaupload, which doesn't
provide a search function where people
are just dumping their files and can link
to it, they would still be covered by
the safe harbor.
Makes a lot of sense.
However, I think there is a chance that
even if this law is passed,
that this won't work out because the
Court of Justice of the EU
has in the past not only ruled
that putting such an obligation on a
service provider to scan for copyright
infringement doesn't just violate
the E Commerce Directive, it violates
the fundamental rights to privacy,
to freedom of speech, to freedom of
information, and to the freedom to
conduct the business.
So we'll see how that
works out in practice, but I wouldn't
recommend to just wait until
the European Court of Justice rules on
this law because that could take many
years. And the damage to the
Internet ecosystem in the meantime
could be quite significant.
Finally, there is
this proposal on text and data
mining exception, which is also
part of this proposal that most people
would think this is a good thing.
There is a new exception to copyright, so
there are some more flexibility at it.
But there is a problem with this because
text and data mining so far has been
more or less a legal gray zone.
It's the question of whether or not you
can copyright material that you already
have legal access to for the purposes of
data mining.
So, for example, researchers
who analyzed the vocabulary
in Agatha Christie novels had to take
copies of all the novels
to find out whether the author developed
Alzheimer's disease over the course of
her life by seeing how broad the
vocabulary was.
Now, the thing here is that theoretically
it's perfectly possible to do this
without making copies.
You just have to sit down and basically
do the counting manually.
But of course, this is really inefficient
and especially in research, text
and data mining is just becoming
increasingly something that researchers
want to do to make their research more
efficient.
And they were actually the ones who asked
the European Commission for clarification
that this kind of copying is not
a copyright infringement by introducing
such a text and data mining exception.
And the main reason was to stop
academic publishers from bullying them
and saying, no, you can't download these
articles for text and data mining.
You need a license for that.
The commission proposed an explicit
exception for text and data mining.
That's good. But unfortunately, in this
proposal, it only applies to research
organizations.
The problem with that is if they're
explicitly allowed the research
organizations, it may follow
or a judge may argue that individuals
or companies who want to do text and data
mining are then explicitly forbidden.
And that would mean that individuals or
companies training their artificial
intelligence with stuff they find on the
Internet may run afoul of copyright
law.
Also, there's not really
much movement on bringing an
end to geo blocking.
So this video is not available in your
country and messages like that, even
though the commission two years ago said
that it was a priority to get rid of
that. So that is by and large what
we have in this new proposal.
So you may wonder, OK, how could it be
that two years ago the commission said
we're going to make everything easier,
we're making it simpler, we
want to unleash Europe's
digital potential.
So how did we end up with this?
The easiest explanation for that is
that this copyright reform was hijacked
by a number of powerful industry
interests.
This is a picture of Commissioner
Attinger with a number of lobbyists.
Axel Springer is one of the publishers
who first lobbied for the license
in Germany and is now behind the lobbying
effort for the extra copyright
for publishers on a European level.
So they get a tool against Google and
Facebook, the German collecting society.
Gama'a, that could never agree with
YouTube on a deal to get something to
pressure YouTube into making a licensing
agreement. And the film industry got
spared from a ban on geo blocking, which
they continue to want to do.
So this reform is clearly
not about how to make copyright fit
for the digital age or how
to use technology's potential to create
new business models that actually work
with the Internet.
Instead, it's about how can we change
the Internet so the old media companies
don't have to.
And how can we subsidize our
European cultural industries with the
profits of American technology companies
and to basic building
blocks of the Internet are attacked by
this proposal.
The freedom to link and share news on the
Internet is fundamental
for the freedom of speech online.
We are seeing with a monitoring
obligation of privatization of law
enforcement, where the takedown
of illegal material will no longer
be done on the basis of court orders,
but by private companies who will
probably air on the side of caution
and take down more than they actually
have to.
It will probably keep
startups and smaller Internet companies
small and actually ensure the position
of the large multinational companies
that this proposal is supposedly
targeting.
And at the end of the
day, only companies like Google or
Facebook can actually afford the content
recognition technologies that would be
required to comply with this law.
And they can probably even count on
getting a free license for using
new snippets from publishers because of
all the traffic that they're actually
sending to the publishers websites
in this proposal, no attention is
actually paid to noncommercial projects
or. Open licenses and the interests
of individual users.
The problem is that
this will not work for anybody.
The protectionism of these past
business models won't actually save
these industries from having to change
and go with the times.
And I'm afraid that at the end of the
day, these measures will end up hurting
those who promote them today.
So if you look, for example, at
the effects of this right for publishers,
probably people will not start
paying them, but rather link to
websites that do not require this
sort of thing. So for the EU based
publishers who are asking for this, it
would probably mean fewer readers and
less revenue.
It probably won't be a problem for
any of the misinformation or propaganda
sites who are getting their funding from
different ways and whose main purpose
is to be spread as far and wide as
possible. I think copyright law is
fundamentally the wrong tool
to stop or to shape
this technological and structural change
that we're seeing in the media industry.
So it's now up to us to do
something about this.
And I think that actually there
is hope. There is, especially
when it comes to this new
proposal neighboring right.
For publishers, because it's already
relatively unpopular in the European
Parliament.
The European Parliament has already voted
against such ideas in the past
when it made its recommendations.
And there is by now a pretty large
group of members of the European
Parliament from across the political
spectrum who are pledging that they
want to save your right to link.
And I think it's important,
though, first of all, to support them
publicly, I think we're always,
well, pointing out when a politician
is doing something wrong and sometimes
these people are going against their own
party line and saying this is something
that is just not going to work.
And also, these members of parliaments
need to be made aware of
the dangerous court rulings that are
actually making linking a copyright
infringement itself.
And this is something that we could
actually fix through a change of
copyright law.
When civil society organization
Open Media has started a campaign save,
save a campaign page, save
the link dot org, where you can write
to members of parliament or just get
informed about the topic at large.
And I've
also written about it extensively.
I've just published a blog post where
these 10 things that the EU Commission
wants to make illegal.
It's great if you if you spread
this news, it's actually quite easy
to contact your own representatives in
the European Parliament because they do
not get contacted all the time.
When the parliament is in session, you
actually have a good chance of simply
getting them on the phone.
And the debate about this proposal in
the national public is also dearly
needed, because at the end of the day,
the council where the national
governments, it will have just as much
influence over where this copyright
proposal is going to go as the European
Parliament has.
And finally, if you yourself have
heard something in this talk where you
feel this is going to affect me directly,
for example, if you run a file holster or
discussion forum and you think it may
fall under this definition, talk
about it and talk about whether or not
it's possible for you to actually comply
with this law and write about it and
spread the news to other people.
Finally, you can also contact
me directly if you want to join the fight
against these proposals.
And I hope that over the
course of the next year, we'll be able to
beat these proposals and can hopefully
go back to the urgent task
of actually making copyright law easier
and saner for everybody.
I wish you all a great New Year 2017,
and I hope you remember it's up
to all of us to make sure that it's
better than the last one.
Thank you.
So we have time for questions
and please queue up at
the microphones we've spread out
throughout the hall and we start with our
signal angel question
from the Internet, please.
This BitTorrent file or magnetic
link count is an illegal
illegal content since it's technically
impossible to verify the content
without downloading it.
I think it's a bit tricky.
There have been court rulings in the past
that argued that
the websites,
the Pirate Bay was at least had
a so-called accessory liability.
So there are different ways you can be
liable. You can be liable simply
because you have committed a copyright
infringement. And this is what this new
question of whether linking is a
copyright infringement or not is about.
But you can also have an accessory
liability where a court can prove
that you aided and abetted
the copyright infringement of somebody
else. So even if technically
this link would not be a copyright
infringement, it's still possible that
you, as the person running the website,
would be liable for it.
So and next, please,
microphone three.
Yeah, I am a question I know
as far as I know in education, there will
be no exception for education, so will
still be difficult for teachers and
everyone to share this material.
And the question my question would be
whether this is also discussed within
within the revision project
and maybe you can give some insights on
that.
There is one exception that applies
to education that is in the proposal.
I have not mentioned it because it's not
really clearly good or bad.
What this proposal does is it says
that it will be mandatory for every
member state in the EU to
allow the use of
of different copyrighted content
for digital teaching activity.
So, for example, if you are
using some kind of online service
for for students to download
texts or if you're a live streaming your
lectures to students in other countries.
However, there are two caveats with
this. One is that the member states
can decide for themselves whether
or not there is a compensation for this.
And for example, in Germany,
there is an exception for education.
However, it hasn't really worked recently
because the
compensation,
the the collecting society that
is responsible for collecting the
compensation, this guy is waving
at, you know,
the money that the collecting society
is collecting. They have gained a court
ruling that said that the
universities actually have to tell them
who exactly
or how many times a particular
work has been used and so on.
So the bureaucratic effort is so large
that because of the compensation
requirement, it hasn't really worked very
well. That's one problem.
The other problem is that this proposal
also says that if there
are appropriate licenses available
on the market, then the member state
can decide that the exception doesn't
apply. And this is also something that
we know from the German context that
a publisher may say that there is an
appropriate license available, but it
actually is not really usable for
institutions. So
there is definitely an attempt
from different educational
organizations to improve this exception.
And I think the most important thing
would be to to address these two parts
and make sure that this exception
would actually apply in practice.
But in any case, it would not be the same
as a general education exception.
That applies also to what is happening
inside the classroom or what is happening
in informal education.
It's really only for digital users
because the commission says this is where
there is a cross-border problem.
So there's definitely a lot of room for
improvement when it comes to this
provision.
We go ahead with microphone number four
here and you have all
this history. It reminds me a lot what
we heard in Spain a couple years ago
when they pushed a law that basically
forced Google to pay newspapers for the
for the news linked.
And the result was that Google closed
Google News in Spain.
So I wonder if this
if this case made these people reconsider
some positions.
The people in the European Commission
who made this proposal know perfectly
well about the failure of the Spanish
law. And they know perfectly well about
the failure of the German law.
And they decided to do it anyway,
which they called an evidence based
approach.
The European Commission actually did a
public consultation where thousands
of people wrote to them and told them
what they think about this
question of a neighboring right for press
publishers. And there were actually a
number of Spanish publishers who said,
we changed our mind.
We don't want this anymore.
It has actually harmed us in Spain.
We're getting less traffic.
We're getting this ad revenue.
Please don't do this.
But the majority of publishers who wrote,
and I think most of them were German,
again, still were in favor
of this. So I think
it shows that it's really important to
to find also differing
voices among the rights holders.
It's not like every author thinks
that this kind of copyright law is a good
idea and probably not even every
publisher or any
rights holders organization.
So I think it's really important to
try to find these these different voices
and see that not everybody agrees
with this approach.
So we have a lot of questions queued
from the outside, so we take another from
the signal Angel, please.
How is this regulation relevant to
businesses not based in the EU,
but in the USA or in Russia?
That's a very complicated question.
So copyright law
is territorial, which means
that the copyright law applies
of the country in which the copyright
relevant act is taking place when it
comes to copying.
That's relatively easy.
If you're I don't know, you're at home
and you're making a copy and you live
in Germany, then German copyright law
applies. If you're making something
available on the Internet, it's a lot
more complicated and it's not actually
fully decided whether it's the country
where the server is hosted,
it's the country where the
website is legally established.
Or it could even be the country where the
user is located.
So this is one of the reasons
why you see geo blocking sometimes
because rights holder can actually
go to court in the country where the
content is available.
So if something is on the Internet,
that's pretty much every country.
And that's also one of the reasons
why we need a European copyright
instead of 28 different ones.
Because if you want to actually know
for sure that what you're doing is legal,
you pretty much have to have a doctorate
in copyright law and have studied all the
28 different laws.
And that's just for the European Union.
We'll go out with microphone number one
over here to elaborate on that,
would it help to escalate the situation,
for example, when we're talking
about our friends from the court in
Hamburg, we just have to look
at their decisions and
what they link to in their decisions and
declare it illegal in their
decisions
to have perhaps a means
to just tell them that they have a link
linking to an illegal film and
therefore they have to take it down or
they are responsible for it and then
escalated on a European level, just
the process.
Well, the the
court rulings themselves probably don't
have links as such.
They may have strings
of text that indicates the
location of URLs, but of course, that's
not the same thing as a link.
It's actually quite an interesting
philosophical distinction that if you can
click on it, it's a link.
If it's just the text, then, well,
I suppose it's not a link.
It's just the string of text
copy. Pasting a string and not having
the link directly would also be an
option. I don't know.
Sometimes I think that it's actually the
European Court of Justice that is trying
to hack the system by making laws
or making rulings that just make no sense
whatsoever that will force us
to reform the exclusive rights
that underlie the copyright law.
Because if a Lincoln can
be a communication to the public and
therefore a copyright relevant act, well,
then everybody is infringing on copyright
and maybe we need to change it at some
point. So I think you might have some
some friends at the European Court
of Justice who are hackers themselves.
We continue with microphone eight at
the left hand side top, please.
Well, chances are that the current
proposal has refused to start as close
kept. And if it is kept,
what do we do about it?
And again, so I'm not sure
that a rejection of the entire
proposal would be such a good idea,
because, for example, there is this
exemption for education that at
least if it's improved, could be a step
in the right direction.
There is also an exception.
Now, this is really revolutionary that
would allow libraries to make
copies of books that
they already have.
So I
don't actually want to reject the entire
thing. I think ideal would be to reject
the Article 11, which is this neighboring
right for publishers and the Article
13, which is the content monitoring
provision and the recitals that
are redefining what a host provider
is and then try to improve the other
parts.
And the way to do this is, of course, a
little bit more difficult than, for
example, with ACTA or SOPA and PIPA,
where you could simply go to the streets
and say, reject this entire thing.
I think if it stayed the way it is, then
we should reject it.
Then it's doing more harm than good.
But we actually have a number of
people working on it in the European
Parliament who are relatively
sensible.
The rapporteur for this proposal
is a member of the European People's
Party, the conservatives, and
she's from Malta.
Her name is Threescore Mordini, and she
has actually promised to meet every
single stakeholder who asks for a meeting
with her and is willing to come to
Brussels. So if you are
feeling like a lobbyist today, you could
also try and explain this
to her. And my impression of her has been
that she at least tries to understand
how this stuff works technologically and
tries to find a solution that works for
everybody. So I think what we need to do
now is really start a public debate
about these things, and especially when
it comes to the neighboring right.
The debate has already changed
considerably.
When this was being discussed in Germany
a few years ago, the
publishers were basically
having a field day.
All the media were writing that this is a
great thing. This is very different
today. You have a lot of especially
online journalists who are writing
against the best interests of their
publishers, as they should.
And so you can see
that that there is a way
of addressing this and making it a public
issue. And if we do that, then I think
it's possible to delete these two
proposals and make sure that the rest
of the proposal actually gets turned into
something meaningful and something that
will make the situation better.
We continue with microphone number two in
different things.
Yulia, Julia, excellent talk so far.
What if I even follow all these
rules and check the link and everything's
fine, then publish it.
And as a sudden, the content behind
the link changes and it has a
copyright conflict.
Do I still get into jail?
So the European Court of Justice says
if you're a commercial provider, there's
a rebuttal, a rebuttable
assumption that you knew the content was
illegal. So if you can prove, for
example, that you haven't click the link
since the content was changed or
something like that, for example, your
website has been completely static since
then. Then maybe you can get out of it.
But generally, if it's a commercial
website and you're linking to it, then
the assumption is that you knew about
it and you're liable unless you can prove
the opposite.
We can hack this, but
so we continue with microphone number
four back there.
Hello, you talked about
Google and having problems with
indexing the Internet.
So this would also hit
archiving pages like
Wayback Machine.
That would mean we would lose
all independent archiving
of the news of the last 20 years.
But do you think about this?
Well, there are a lot of archiving
websites like the Internet Archive
for all the abandoned where Web sites for
old software and stuff like that that
basically operate on the assumption
that the people who are
the rights holders probably don't care
about this anymore.
Nobody is really hurt if there is
abandoned where available because it's no
longer commercially on the market.
And so they can rely on this notice and
takedown mechanism.
They only have to take it down if the
rights holder tells them to, but the
rights holder never will because
there is no damage.
So this actually works pretty well.
And for them, they
wouldn't have to take down the content
with this monitoring technology either
unless the rights holder notifies them.
However, all it takes is one
rights holder to tell them you
need to make sure that my stuff is not
available. That would require them to
install this content monitoring
technology. So the administrative
and financial overhead would become
a lot larger and probably
it would make the running off
not for profit abandoned where websites
pretty much while impossible, unless
you have somebody with really deep
pockets, the only ones who might be able
to do it would be libraries
that would be able to rely on an
exception or another.
But if it's platforms where the users
actively upload stuff, then they would
fall under this.
OK, we go over to a signal.
Angel, please.
What should we expect from the new
digital commissioner?
So for the time being, the
new digital commissioner's endless answer
appears.
He has been the vice president
of the European Commission for Digital
Affairs, and he's from Estonia,
which is one of the more digitally minded
countries in the EU.
I think on the plus side, you can say
that he certainly has a lot more
understanding of the technological topics
and Ettinger does on the negative
side. Well, you can accuse him of
having been in favor of ACTA when he was
prime minister of Estonia.
So but I think at least
he's he's kind of willing to talk to
people. And he generally
also has more sympathy
for smaller companies, for startups.
So he probably will want to try to create
an ecosystem where they can actually
grow. So I think that's good.
However, we don't know whether he will be
the digital commissioner in the long
term, because the reason for this
reshuffle is that the Bulgarian
commissioner left
her job and went to the World Bank
and now Bulgaria will need to appoint
a new commissioner.
However, Bulgaria is having a
constitutional crisis.
I don't need to go into the details, but
they haven't appointed anyone yet.
And as soon as that happens, the
commission may decide to change their
the distribution of tasks completely
again.
We go ahead with microphone number one,
please.
Julia, thank you very much for your talk.
I have a question. As a travel
photographer, I put the pictures
around the world on my blog
and I scrolled right now.
Well, if you are uploading your own
pictures to your own blog and
other people can't upload anything
to your blog, then you are not provided
or you're just well, you're basically
running your own website.
So this new provision only applies
to host providers that provide a service
for other people.
So at least on that front, you're fine.
I would be careful with the linking that
you do, but it's probably
OK. Thanks.
Microphone number four, please.
OK, so first of all, things for you,
work in an amazing talk.
I have some question regarding remedies
under a new law, because as
far as I know, actually under the old
notice and takedown though, when there
was an infringement, but nothing
happened after the note is
actually neither the user nor the hosting
website would really risk
anything.
So would that change?
Maybe the proposal
includes a provision that says that
the host providers need to put in place
a complaint mechanism
that would be available both to the
rights holders if their staff is actually
continuing to become available.
And also for the users, for
example, if staff has been taken down,
that is not an infringement.
Unfortunately, I don't think this will
really work for the users
because the exceptions
to copyright law are different in every
country and they also are not
considered to be rights themselves.
So basically a platform could simply
right into their terms of service.
We only accept licensed content
and we don't care whether this is legal
as a parody or whatever.
So the remedies are not really
clear. It also says that there has to be
some kind of round table where all the
different stakeholders come together.
So the host providers, the rights holders
and so on. And it really shows that the
commission is thinking of large companies
like the big major
labels, but not individual rights holders
who are most certainly not going to start
a round table
six. So I'm afraid that is all
the time we had for Q&A
with this talk. So thank you, Julia
Reed, for this amazing talk and the time
it took more question answering.