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Ireland's political and cultural magazine
5 6 October 2016
O
utline proposals for a modernised Irish
copyright regime announced by Enter-
prise Minister Mary Mitchell-O'Connor
at the beginning of August are now
dead in the water, following the publi-
cation of draft directives by the European
Commission in mid-September.
The European plans, championed by Digital
Economy Commissioner Günther Oettinger, lean
heavily towards protectionism for traditional
media, in contrast to the general scheme outlined
by Mitchell-O'Connor, which drew from the ‘Mod-
ernising Copyright’ report prepared by the
Committee for Copyright Reform (CRC) in 2013,
introducing protections for online ‘innovation’.
The CRC, which began its work in 2011, was
headed by Trinity College associate professor of
law, Dr Eoin O'Dell. While some elements of the
CRC's report – for example proposals for a Copy
-
right Council which would have a role in resolving
copyright disputes, among other things – may
survive, the ‘tech-friendly’ thrust of the report
stands in contradiction to the approach from
Brussels.
O'Dell agreed that the Commission draft took
an approach to copyright diametrically opposite
to that of the CRC. Both reports agreed on some
aspects of copyright and reform, such as on the
need to implement the Marrakesh Treaty for
access by the blind to published works and on
libraries’ entitlement to digitise works in their col-
lections for conservation purposes - the "boring
but necessary” reforms. However, Oettinger and
the Commission had "capitulated to the content
providers when it comes to a whole range of addi-
tional extra rights, in particular the ‘Google tax’- a
proposal to make Google and other search
engines pay for extracts from newsmedia web-
sites quoted on their search pages".
‘Modernising Copyright’ outlined specific pro
-
posals to allow for quoting news reports online.
For example it would not be an infringement to
quote up to 160 characters or 2.5% of the work,
subject to a cap of 40 words). On the other hand
the draft EU directive effectively outlaws any
quoting.
"This new right is an additional right that just
applies for news, so it’s not a copyright, it doesn’t
have to meet the copyright standards and it
applies whether or not a copyright exception
applies”, says O'Dell. "It is effectively acknowl-
edging that copyright ends, and it is adding to it.
It is the exact opposite in respect of what we had
suggested".
He claims that effectively they are seeing copy-
right and related rights as about business
models, not about rewarding creative content but
rewarding particular kinds of business models:
“You can them dress up as saying it is reward
-
ing creativity and content, but there are a lot of
other ways to have creativity and content beyond
these particular business models. And the Com
-
mission has accepted the argument that these
business models need special protection”.
O’Dell notes that it has already been adopted
by the Commission, “so this is the equivalent in
Irish and UK terms to a first reading. They have
effectively published a bill. The civil service,
which is basically the Commission, have agreed
this is the bill, the Commissioner – the 'Minister'
– has agreed this bill. It has now been published
and has to go through the legislative process,
which involves Parliament and the Council [of
national ministers]”.
While the draft directive still faces legislative
hurdles before the Council and European Parlia
-
ment, O'Dell feels it is likely to survive the process
largely unscathed.
"As part of the ongoing process that has led to
the directive that has been ongoing since 2012,
the European Parliament adopted a report from
German Green/Pirate Party MEP, Julia Reda, which
was far more attuned to the needs of users in par-
ticular, and the 21st century in general, and so the
Parliament made clear what it wanted to see in
the package”.
He considers it significant that: “Pretty much
none of the Parliamentary priorities were
reflected in the Commission proposals. So the
Parliament is unlikely to revisit it, because they
Pyrrhic victory for old media as Commission
will prevail over Irish Government
Similar laws passed by
national parliaments saw
different responses, with
Google shutting down
news-search in Spain,
while Germany granted
Google a free licence to
quote. Dr O'Dell compares
the current stand-off to
the Cuban Missile Crisis
October 2016 5 7
have their own already-expressed alternative
view, but in terms of the power dynamics in
Europe the Commission is much more powerful
than the Parliament, so the Commission is likely
to get its way.
The way the Parliament might have had its way
would have been if its report of 18 months ago
had been incorporated into these proposals, but
effectively it hasn’t. There are no votes in copy-
right, and I can’t see the Parliament blocking it,
though that would be its only option”.
When the Stop Online Piracy Act (SOPA) was
going through Congress, the Stop SOPA cam-
paign appeared almost out of nowhere to kill it
(albeit with assistance from technology compa
-
nies like Google), but Dr O’Dell does not consider
it likely that history will repeat itself.
"SOPA was a big deal in Europe too and there
were protests; it was the biggest protest in a lot
of Eastern European countries. There were more
people protesting SOPA than against the Iraq
war that year, in Poland. But I can’t see how the
‘Google tax’ is going to get people on the streets
in the same way. ‘The web is going to go dark’,
was the rallying cry; I don’t see what the rallying
cry is here. So from my political perspective I
think that is unfortunate and sad, but from the
perspective of political realities I would be very
surprised if the Parliament were to block this. Its
opportunity was when it fed into the process 18
months ago, and it has been comprehensively
ignored, and the Commission couldn’t have done
that if it didn’t think it could get away with it”.
So what next after copyright reform? Similar
laws passed by national parliaments saw differ
-
ent responses, with Google shutting down
news-search in Spain, while Germany granted
Google a free licence to quote. Dr O'Dell com-
pares the current stand-off to the Cuban Missile
Crisis.
"You know how the Cuban missile crisis was
resolved? The Russians pulled out of Cuba, and
six weeks later the Americans made a significant
withdrawal out of Turkey, which wasn’t in any
way related whatsoever. [In Germany], the news-
papers blinked and said ‘here’s a free licence, no
charge’, and six weeks later Google made a sig-
nificant donation to a newspaper foundation.
Officially it was just a gratuitous licence, in
fact there were obvious negotiations behind the
scene, and that obvious connection, but no offi
-
cial obvious connection. It was like JFK’s
withdrawal from Turkey.
In Spain, Google shut down news search, in
Germany they did a deal, in terms of realpolitik
a deal will be done, it will not be the sort of cash
cow that Conor Brady advocated at the Press
Council launch in 2012. It has not proven to be a
cash cow in Germany. It’s as much a signal as
anything else, but it’s there now and it can be
used.
Whether there is a gratuitous licence will be a
matter of realpolitik. I suspect that
accommodations will be made, because Google
and Facebook will lobby, and then do what they
have to do in the next iteration, just like every
major corporation does.
I’m sure they have a Plan B already. I don’t
know what Plan B is like, but I’m sure they have
one. It could take up to two years for this to work
its way through the European process so it could
be somewhere between three and four years
before we see it on the statute books, and that’s
plenty of time for a deal to be done”.
NewsBrands Ireland, the representative body
for Irish national newspapers, did not get back
with a statement before deadline, but the
Europe-wide organisation representing publish-
ers, has welcomed the Commission's
proposals:
"The introduction of a publisher’s right at EU
level is a necessary and historically important
step in guaranteeing media pluralism as an
essential basis for freedom of opinion and
democracy in the digital world", the publishers’
organisations said in a statement from
Brussels.
O'Dell continues: "The Commission's proposal
takes into account the unsatisfactory situation
whereby the high-quality content produced by
press publishers contributes to the success of
many online platforms that do not make a sig-
nificant contribution to the content, while
publishers do not benefit from an appropriate
share of the value produced.
The Commission is correct in its assessment
that, without adequate legal protection at EU
level, the sustainability of publishing industries
may be at stake with the risk of further negative
consequences on media pluralism, democratic
debate and quality of information".
A joint statement from the International Fed
-
eration of Journalists and the European
Federation of Journalists (IFJ) also welcomed the
proposal as a "great step forward" in protecting
journalists' authors rights, but also drew atten
-
tion to the weakened position of journalists – in
particular freelancers – in dealing with large
publishers.
"Journalists have no information on the scale
of additional use of their works and it prevents
them from assessing if they are fairly paid", said
Philippe Leruth, IFJ president.
"We have heard too many reports from jour-
nalists and photographers being forced to sign
away all their rights. We hope that this new EU
proposal will lead the way to the adoption of
additional global instruments improving
authors’ contractual relationships and proper
remuneration for the use of their works".
"Collective bargaining is essential to securing
better working conditions for our colleagues and
journalists unions are ready to play an important
role in setting transparency obligations," said
EFJ president Mogens Blicher. "We will continue
to push for more fairness in contractual negotia-
tions at EU level. The proposed directive
represents a great step forward, installing more
justice in contractual relationships".
On the technology side, Google VP of global
policy Caroline Atkinson blogged to say the Com-
mission directive failed to strike a balance
between rightsholders and "creativity and inno-
vation of the web", and could "effectively turn
the internet into a place where everything
uploaded to the web must be cleared by lawyers
before it can find an audience".
The publishers’ organisations said the Commission is
addressing the unsatisfactory situation whereby the high-
quality content produced by press publishers contributes
to the success of many online platforms that do not make
a significant contribution to the content
