FROM THE CEPIC NEWSLETTER
DATE: June 2021
Implementation of Copyright Directive Article 17
EUR-Lex - 52021DC0288 - EN - EUR-Lex (europa.eu)
DATE: 16 April 2021
A hearing on the state of implementation of the press publishers right in France took place on Wednesday 14 April at the French Senate. This follows on the implementation of Art.15 of the EU Copyright Directive and on-going negotiations with Google.
State of Play and conclusions of the hearing
France was the first EU member State to create a press publishers right as early as July 2019. (The law is accessible here ...)
Any success or failure will therefore be carefully scrutinised by the European partners. Any deal will serve as a basis for similar deal all across Europe.
Google has consistently and unequivocally said that they would not pay for content. At first they tried to circumvent the French law and changed their product.
However, on 8th October 2020 a decision of the French Competition Authority forced Google to open talks with press publishers about paying to use their content.
Court of Appeal
SKM_36720100715210 (autoritedelaconcurrence.fr)
In January 2021 a deal was struck with an "alliance" of press publishers, the APIG. Created in 2018, the APIG brings together nearly 300 political and general news outlet, such as Le Figaro or Libération.
Hailed as a major achievement, the deal has been strongly criticized in France by all press publishers who are not part of the APIG, such as publishers of specialised content, and by press picture agencies who are excluded from any deal altogether. The deal is a framework agreement valid for three years which allows for individual agreements with individual publishers.
Presently negotiations are on hold pending an appeal decision by the competition authority. This decision is expected in early May.
First step. All agreed that the law was only a "first step" but that nevertheless, with all its flaws, the agreement was a recognition by Google that they should pay. Jean-Marie Cavada, Fabrice Fries and Florence Braka reminded that press agencies should be entitled to their part of the cake.
Next steps. At European level, the Digital Service Act and Digital Market Act represent further (very small) steps to limit the domination of the tech giants. At international level, Australia's efforts, including their demand for sanctions and government mediation if no agreement could be reached between the parties, were welcomed by all participants.
DATE: 11 February 2021
In the last CEPIC Newsletter we reported how French publishers and Google had struck a licensing deal on their content. Read more here ...
However, this is only part of the story. It seems that not all press publishers have been treated alike. Google is being challenged by an association of publishers, the SEPM.
DATE: 28 January 2021
In France the second report on content recognition tools on content sharing platforms has been published. The report called "Content recognition tools on digital sharing platforms: proposals for the implementation of Article 17 of the EU Copyright Directive" will be presented on 28 January 2021.
France has already implemented Art.17 in its copyright legislation by following the wording of the directive and leaving technical implementation to stakeholders. The Report of Jean-Phillipe Mochon is supposed to fill the gap by making recommendations.
The central argument of the Report is that automated content recognition technologies already play an important role in managing copyright on digital sharing platforms. Article 17 provides for sufficient fundamental rights protection through the complaint and redress mechanism alone. Last but not least the report concludes that temporary restrictions on freedom of expression are considered acceptable to achieve the goal of stronger protection of intellectual property rights.
The Alliance de la Presse d'Information Générale and Google announced on 21.01.2021 an agreement on the remuneration of neighbouring rights under French law. "This is a major milestone that is reached today: it is the culmination of many months of negotiations within the framework determined by the French Competition Authority."
DATE: 13 November 2020
In France press publishers have been successful in their appeal against Google. That means that Google is obliged to negotiate with them and on their terms.
The CEPIC newsletter reported on the legal fight between Google and French press publishers: here ... and here ...
Negotiations were mainly conducted by Press Alliance (APIG), which, since 2018, regroups nearly 300 APIG titles of the national daily press, regional dailies and daily and weekly newspapers and departmental weekly newspapers.
According to information published at the end of October, the unity displayed by APIG in front of Google was blown in October. The reason: Le Monde, Le Figaro, Les Echos and Le Parisien, have secretly signed individual agreements with Google, leaving their colleagues within the alliance aside.
Additional background on the entire procedure may be found here ...
"The identification of the right holder is critical to support the spirit of the Copyright Directive." argues Mathieu Desoubeaux, CEO of Imatag. "Without it, it is impossible to properly compensate the actual right holder. Using blanket license schemes via right collection agencies without requiring exact identification of the right holder will lead to unfair distribution of fees and the aggravation of the value gap."
Read Blog on LinkedIn here ...
DATE: 22 October 2020
The competition authority in France has ruled on 8th October against Google confirming in appeal that Google must open talks with press publishers about paying to use their content.
The ruling significantly strengthens the position of press publishers to work out a sustainable payment model with Google rather than just a one-time only payment - that would be Google's prefered solution.
The decision of the Appeal Court of Paris sets out clearly that:
The Court recognises in # 99. that the law of 2019 on press publishers rights is aimed at "press publishers and press agencies" so that (sic.) "it is futile to claim, as Google does, that the AFP cannot directly claim neighbouring rights, all the more so since a majority of AFP's content reproduced by the search engine are images."
It might be also noted that as a defence Google refered to the decision to the contrary opposing Google and German press publishers. The argument is swiftly discarded by the Court on the ground that both the context and the legal basis of the German decision are different.
The decision of the Court of Appeal of Paris is available here (in French) ...
On 25th September Sylvie Fodor made a presentation at the Photography Delegation of the French Ministry of Culture on: "The implementation of Art.17 of the EU Copyright Directive through the examples of the German draft proposal and the EU draft guidances of implementation" (sic.)
The translation of the report of the Ministry of Culture is now available in the Login Area of the CEPIC website.
DATE: 1 October 2020
On 25th September Sylvie Fodor made a presentation at the Photography Delegation of the French Ministry of Culture on: "The implementation of Art.17 of the EU Copyright Directive through the examples of the German draft proposal and the EU draft guidances of implementation" (sic.)
The French Ministry of Culture is presently working on the implementation of Art.17. The text should be passed by decree by the end of the year.
The powerpoint presentation is in French and may be downloaded here.
The major stakeholders were there, including several CEPIC members. The meeting altogether lasted 3 hours with a little more than 2 hours was devoted to the presentation, including many questions and a lively debate. Amongst questions raised was the implementation of "extended collective licensing" (ECL) and the use of technological tools to identify visual content. These two points will be handled in more depth in future stakeholders meetings.
France, the land of authors' rights, comes to the rescue of the EU Copyright Directive, strained by the European Commission.
According to Insider lobbyist magazine Electron Libre, France stands not alone in this battle.
DATE: 14 May 2020
In France reflexion on the use of content recognition tools for the recognition of copyrighted content online continues. After the publication of the "Rapport Mochon" in January 2020 (also available in English here …), a new investigation has been launched on April 30th. These reflexions fall within the context of Article 17 (ex Article 13) of the European Copyright Directive of 17 April 2019. This article provides that, in the future, in order not to incur liability for unauthorized content to which they give access, sharing platforms will have to make their best efforts to block or remove them.
Read more here … (in French) ...
DATE: 5 March 2020
How this works is explained in this article of Le Monde, one of the newspapers that would benefit from the new deal.
Insiders point out that:
1. The deal is out of the scope of "Art.15" i.e. it does not comply to the EU Copyright Directive and does not recognise any kind of "publishers right" ...
2. The deal would only benefit big players and entrench their position on the market
3. The deal would not benefit image (press) providers and would not benefit authors
DATE: 5 July 2019
France is the first country to implement Art.15 of the EU Copyright Directive providing for a new neighbouring right for press publishers and agencies.
The Bill provides that the authors of works included in the publications (including photographs and videos) shall receive an appropriate and equitable share of the compensation owed to press agencies and editors. The Bill adopted by the French Senate on 03. July is planned to be finally adopted by the French Parliament on 23rd July.
DATE: 7 May 2019
The copyright directive is being implemented at a brisk pace in France: work in French National Assembly to transpose EU copyright reform will start April 30 and continue May 9. First Amendments have been tabled around Art. 15 of the Directive (neighbouring Rights for Publishers) Read more here… (French)