It was a very nice, inspiring and friendly conference in Antibes with CEPIC (Center of the Picture Industry), who had asked me to explain how the EU Copyright Directive 2019/790 has been implemented in Germany, with regard to photographers’ and image rights
There is no unitary implementation of the famous Copyright Directive in Europe so far and AI has just entered the scene, generating calls for updates to legislation that is not even fully implemented in Europe yet.
Long story… in a nutshell.
In Germany the Copyright Directive was transposed just after the deadline.
Datamining was provided for in ยง44b of the German Copyright Act, which provides for the possibility to opt out. But let’s see how it will be applied. Recently, a German photographer who had opted out received a claim for damages from an AI database, claiming that his removal was illegal… The case is ongoing.
Uloadfilters are addressed in a special law with a complex and questionable regulatory mechanism – the text is currently under review by the German Constitutional Court. This law provides for so-called “presumed permitted uses”: 125 kilobytes of a photo, 15 seconds of an audio or film track, 160 characters for a text. This goes beyond the conditions of the copyright exceptions. In addition, any complaint procedure must prove that the “communication substantially impairs the economic exploitation of the work”. Let’s hope that the courts will not be too demanding!
As for the rights of press publishers, the law repeats the Copyright Directive almost word for word, whereas press publishers should have been better supported by a solid text.
At the time the directive was implemented, the German Ministry of Justice was responsible for consumer protection, which certainly explains the questionable compromises.
One good thing about the German law, though, is that it defends all types of photos, even if they are not considered “original” Works.
My recommendations concerning the AI revolution for photographers:
- Rights holders need to stay united, as the image is directly exposed by AI, and there will be big disputes, and attempts to divide and rule, as was the case with press publishers
- The Copyright Directive provides very good tools: use optouts;
- Tag photos with machine-readable tags
- Think about asking for a remuneration that would be managed by CMOs (collective management companies), in order to guarantee a unitary system and good negotiations
- Think European and ask for a European regulation, not a directive!
