The reform of EU copyright law: Janusz Piotr Kolczyński explains the major issues pertaining to controversial Articles 11 and 13 related to the draft EU copyright directive in a conversation with Witrualnemedia.pl.
5 July 2018
We are presenting the conversation of Janusz Piotr Kolczyński, Att. with Wirtualnemedia.pl website (hereinafter: ‘WM”) about some provisions of the draft EU directive amending copyright.
WM aptly noted that the new directive draft has raised controversies since the beginning. Supporters emphasise that the new rules will allow for effective fight against online piracy. Opponents, who are definitely more numerous, claim that the new provisions will introduce Internet censorship.
Is the right to privacy and access to culture less important than copyright?
Janusz Piotr Kolczyński expressed his concerns about the permitted use: “I fear about the fate of the right to permitted use, both public and private, after the new directive enters into force. I believe that it was treated as a second-category right in the draft. It is proposed (section 7, Art. 13 of the draft) that the service provider decides whether a work is encompassed by permitted use or not. In exchange, mediation and arbitrary dispute resolution mechanisms are going to be available. In my opinion, the right to privacy and the right of access to culture are thus becoming less important than copyright and it is hard to become reconciled to it. Content filtering mechanisms, if they are introduced, should include the possibility of exercising the right to permitted use without any interference on the part of the service provider. It is us, making the content available, who should decide whether we exercise such right or not - this is obviously our liability. In practice, there should be a content filter blocking mechanism”. In Mr. Kolczynski’s opinion, in line with the EU proposal, it is the website administrators who will decide whether specific content complies with the terms of permitted use and whether it can be posted in relation to this. In consequence, it deprives the users of the right to decide what is permitted use and what is not. In line with the proposal, such mechanisms as mediation pertaining to specific content would be applicable ex-post.
Linking
The interlocutor calmed the readers down with respect to the issue of external source linking not being threatened by the new law. “As far as linking to external content is concerned, the directive proposal clearly excludes everything that is not public communication of a work, and thus it permits links, e.g., for private purposes, among friends. Recital 34 of the directive preamble clearly excludes the obligation of procuring a licence for hyper-linking, which is not related to public communication of the content: “should not extend to acts of hyper-linking when they do not constitute act of communication to the public”. According to the current judicial decisions of the Court of Justice of the European Union, these would be links not deriving from companies, referring to content published previously and without an apparent gainful purpose. The attorney added that: “For example, in the case of links referring to sources of information in articles published on-line, in relation to the new copyright law, there will be no additional restrictions and no necessity of procuring relevant approvals. Links of this type are non-commercial in direct understanding, they also refer to the content that was previously made public on-line. Thus, in practice the author of the text who posts links is not publicly communicating a work, as it had already been communicated earlier. The situation would be different if the link referred to a work that was not made public or an illegal source.”
The amendment proposed by Zdzisław Krasnodębski
When explaining controversial Articles 11 and 13 in the new copyright directive draft, Kolczyński also draws attention to the amendment proposed by Polish MP, Zdzisław Krasnodębski. “The idea is to add point 13a to the directive, stipulating author’s pay, which cannot be waived. This is a response to the new trend which emerges in the European Union. Today, when authors make specific content available, they sign a prior agreement with the publisher and receive one-time pay in a specified amount. Later, authors are not entitled to any additional financial benefits from further dissemination of such content on the Internet, which is unfair, especially in a situation when a given piece of work becomes widely popular. The above-mentioned amendment stipulates that even if the author became liable for not collecting additional pay from a work that brings profits on-line, the author cannot be efficiently bound to do it. In practice, this means that the author has to receive fair pay for the dissemination of his/her work on the Internet, irrespective of the previously concluded agreement with the publisher or the producer. Additionally, the above-mentioned proposal stipulates that enforcement of receivables from publication of specific content shall not be done personally by the author, but by a collective management organisation (in Poland, e.g. ZAIKS) which would pass the collected funds over to the author.”
New related right for publishers
The interlocutor notes “In general, related rights are aimed at protecting the economic interests. Simply speaking, they are not meant to block anything, but to gain money. It has to be noted that in the course of work on the EU draft, a part of the new related rights of the publishers was significantly reduced. It was initially assumed that the law would be binding in specific cases for 20 years; eventually, it was agreed that it would be in force for one year only.”
The attorney emphasises that in relation to such regulations, there are serious doubts as the planned law duplicates the provisions that already exist. Today, publishers can prohibit publication of specific content or block access to content; thus, they have proper tools to protect their interests: “In the draft, the publishers would receive, apart from copyright, additional rights, which is related to extra revenues. In the course of work on this part of the draft, proposals were put forward that instead of the related rights, an assumption should be introduced that publication of specific content is not covered by an agreement. In such a situation, the party using the work would have to prove that it was entitled to it and that it acted legally. Meanwhile, the draft directive includes a mechanism which, in fact, duplicates certain already existing provisions; attention has already been drawn to this fact by several prominent academics who are involved in the process of legislation.”
Complete conversation is available here.
Source: Wirtualnemedia.pl
Based on the source text authored by PS.
