Report on the roundtable

On Friday, September 7, 2018 the Faculty of Law of the University of Ljubljana hosted a roundtable entitled “Europe needs a good copyright reform” that was organized by the Intellectual Property Institute, the Institute for Comparative Law, the institute Danes je nov dan, the institute Citizen D and the initiative Opening Up Slovenia. The event was organized with the purpose of presenting different positions of different stakeholders that represent different interests in the process of reforming the copyright law in the EU and to share their views on the Proposal for the Directive on copyright in the Digital Single Market. The event was fully recorded by the Slovenian Press Agency.

The roundtable was introduced and later moderated by dr. Maja Bogataj Jančič, CEO of the Intellectual Property Institute. In her introduction, she presented the organizers of the roundtable and her different roles in the process of reforming the copyright law. Amongst others she serves as an external legal advisor to the Ministry of Education, Science and Sport of Slovenia and cooperates with Communia, an organization that strives for a good copyright reform for education in the EU. She stressed that copyright law is a regime to promote creativity and disseminate knowledge that functions well as long as different interests are balanced. Traditionally, this field of law contrasted creators on one and publishers and producers on the other side and then later opposed these two groups of stakeholders to users of copyrighted works. With the development of the digital technology the users of the web became an important factor of this traditional triangle. She also highlighted that while regulating the web we must not forget that the internet is not only a market offering copyrighted works but also a space for communication and education as well as a space for the exchange and sale of copyrighted works.

A video followed showing different positions regarding the proposed reform on which, as the moderator emphasized, everyone seems to agree that is necessary as copyright law in the EU was lastly modified almost 20 years ago which is before the introduction of smartphones, social networks and big online platforms. The tape focused on the reasons for and against the most problematic and most contested Articles 11 and 13. The supporters of Article 11 that introduces the so-called neighbouring right for press publishers believe that the quality of the press in Europe and around the world is in significant decrease because journalists are being paid poorly or not even being paid at all. The opponents of Article 11, on the other side, fear the consequences of the introduction of such a right on users, their right to link and the way we communicate on the internet. Article 13 that obliges providers of information society services to filter copyrighted content their users want to upload would, in the opinion of the supporters of this provision, ensure that the creators are fairly rewarded for their work. On the contrary, examples of lawful contents that were unjustifiably removed by those filters speak by themselves against Article 13.

Next, a video was shown containing the statements of two Members of the European Parliament that are important players in the process of the reform. Axel Voss, the drafter of Article 11 and 13, stressed that the new regime would encourage the platforms to conclude licensing agreements with the copyright holders as they would otherwise be held liable. Users on the other side would be exonerated from liability if they uploaded a copyrighted content. To the contrary, Julia Reda thinks that the establishment of filters would not result in the conclusion of licensing agreements for every copyrighted work in Europe because such licenses are not to be found on the market. The main consequence of Article 13 is that platforms will be forced to introduce upload filters which is a huge problem for the freedom of expression on the internet as many lawful contents will be blocked. What is more, such a regulation that strengthens the power of internet giants such as Google and Facebook that already invested millions in the development of filters that smaller platforms simply cannot afford is not in the interest of Europe. Article 11 and the linking tax introduced therein are also problematic. Such a tax was already introduced in Germany but did not bring the desired results. Its goal was to limit the power of Google, however, its effect was exactly the opposite. In the end Google got a free license while the other competitors are still fighting for those licenses and their existence on the market.

Following these two video presentations, the Associate Professor dr. Klemen Podobnik, who amongst others lectures Intellectual Property Law at the Faculty of Law in Ljubljana, stepped on the stage and presented to the audience a wider material background of the directive’s proposal. In his opinion the discussion on the copyright reform has lately lost its focus as it redirected the attention on too partial questions to the detriment of universal problems that are present. The first issue is the fact that copyright law and intellectual property law cannot ensure the wanted balance. Even the term of intellectual property as quasi-property on immaterial goods, on information that is indestructible and non-rival, is controversial by itself. The next problem is the perception of the system of creation and distribution of copyrighted works that originates from the 16th and the 17th century. At that time the print and distribution of books was expensive and therefore intermediary funders were needed. Today, however, the cost of transmission of a digital work is zero, which is why, in the professor’s opinion, those intermediaries are no longer necessary. Another important question is the definition of the internet. He described it as a social situation where everybody is connected. The internet enables a more efficient transmission of information that is not centralized and with this the press is losing its importance regarding this task. To conclude, copyright law deserves a different reform that will, in a bright future, overcome cultural, artistic, spiritual and scientific deprivation, which is the core purpose of copyright law.

During the presentation of dr. Podobnik or rather because of it some stakeholders left the roundtable in protest – first was Gregor Štibernik from the institute AIPA, a few minutes later Luka Novak from SAZOR GIZ k.o. (the Slovenian Organization of Authors and Publishers for Reproduction Rights) and then followed Špela Stare from the Slovene Association of Journalists. They were all invited to the roundtable to talk about the advantages and disadvantages of the directive and to present the views of the stakeholders they represent. Nevertheless, the debate continued in a substantially truncated composition, which was later partially solved by Nikola Sekulovič from the Slovenian band Dan D, stepping in as a representative of right holders, and by Rudi Zaman, one the CEOs of SAZOR, who spoke from the standpoint of publishers.

Next, different stakeholders were invited to present different points of view on the directive.

Dr. Vesna Čopič from the Ministry of Education, Science and Sport emphasized the importance of the exception for education that was introduced in Article 4. She highlighted that educationalists throughout EU need a uniform regulation that will enable the free use of copyrighted works in classrooms for non-profit educational purposes and that such a use cannot not be strictly limited to open networks and the internet. She complained that the directive introducing such exception is contradictory – one side its purpose is the establishment of the exception and the harmonization, while on the other side the exception is not mandatory for member states as they can choose not to transpose it where licences from publishers are available on the market.

The independent digital strategist and artist Vuk Ćosić talked about his understanding of the internet. For him the internet is an amplifier of social relations and what he fears is that the internet, that was once a space of freedom, will become a space of fear.

The National Messenger of Digital Technology, Dr. Marko Grobelnik from the Institute Jožef Štefan, also shared his understanding of the internet. He described it as a crystal that can be harmed with a wrong blow or enhanced with the right grip. In his opinion the proposed directive represents a severe blow into the crystal structure of the internet.

Mojca Jarc from the Ministry of Public Administration, that also covers information society, described the assurance of a fair compensation to authors for the use of their work on the internet as the main advantage of the directive. On the other hand, the ministry believes that the main disadvantage is the interference in the applicable regulation of the internet from the e-Commerce Directive. Also, she sees a potential danger that contents that are not interesting for a wider range of people will not be published on the internet and this could harm the market of small countries as well as the cultural diversity of published contents.

Žiga Vrtačič from the institute Danes je nov dan explained that they are not against the reform, but against some solutions the directive introduces. As such they are not pleased with Article 11 as it is. He explained that links will not become payable if the directive is adopted, but will stay as there are. What is changing, however, are the so-called snippets, i.e. the title and the description of the link which will become copyrighted and that significantly changes the internet. If the links are the roads, the snippets are the signposts, without which there is no internet or at least the internet cannot function properly. What he further stressed is that regarding Article 13 we are forgetting about the presumption of innocence. In his opinion, the verification of the content in advance is unnecessary where authors are able request the removal of a content that allegedly infringes their right. The development of filters means the work of 50 programmers in one year, which only big players can afford while the small ones will be forced to either buy those filters or give up the game on the market.

The issues surrounding Article 13 were also contested by mag. Miro Pušnik from the Central Technological Library at the University of Ljubljana, who is also the president of the National Council for Library Activity. He believes that the introduction of filters could place additional burden on libraries and jeopardize the functioning of the public service, which depends on many commercial customers offering their content.

Even though the roundtable was mainly focused on Articles 11 and 13, the stakeholders also talked about other provisions. Mag. Pušnik exposed Article 2 containing the definitions of some basic terms as too loose. Apparently, the legislator did not ask itself what the internet was, to whom it served and whose it was. Another problematic provision is Article 3 which deals with text and data mining and, according to dr. Grobelnik, might introduce the taxation of knowledge.

The Slovenian Members of the European Parliament were also invited to present their views. MEPs Ivo Vajgl, Franc Bogovič, Lojze Peterle, dr. Igor Šoltes and mag. Tanja Fajon responded to that invitation.

First, the moderator read to the audience a letter in which MEP Ivo Vajgl expressed his point of view. He writes that the Directive on copyright in the Digital Single Market is unique in the sense it resulted in so many divergent opinions amongst Members of the European Parliament. It turned out that it is not always possible to regulate so many different things with a single document. Personally, he thinks that rights of small authors in relation to big corporations should be regulated separately. Regarding his vote, he will decide whether to support or reject the directive after its final draft will be available.

Second, MEP Franc Bogovič who is a supporter of the directive as it is and has decided to vote for it on the September plenary session presented his view through a video. In his opinion, today’s digital market put cultural creators, music producers and journalists in a catastrophic position as their work is not protected. The directive would ensure a fairer share of the revenue created by internet platforms. This does not in any way interfere with rights of the users and the use of copyrighted works will remain free for educational and research institutions, for those who protect the cultural heritage, for bloggers, carriers of online stores as well as all those who do not profit with the marketing of copyrighted content. At the end Bogovič expressed his concern about a campaign that is being organized at the level of the EU against the directive and in which internet giants such as Google participate and invested over 30 million euros for the preservation of current situation. The carrier of this campaign in Slovenia is allegedly also the institute Danes je nov dan that has been in the last two year funded by over 90% by the foundation Google DNI.

*Because of these accusations, all the co-organizers of the roundtable wrote to Bogovič an open letter the day before the roundtable, warning him to stop manipulating and misleading the public and asking him to apologize. Danes je nov dan, immediately after Bogovič first started with these accusations, publicly exposed its funds and their purpose and directed Bogovič to the publications on the web in which everything concerning their funds is transparently available to the public. In response to this open letter, Bogovič relied, but not with an apology, but rather with the repetition of his allegations regarding Danes je nov dan and came up with a new untruth, namely that the signatories of the open letter and the co-organizers of the roundtable are against the directive and the creators. This simply cannot be true, which is proven by the organization and the debate on the roundtable, which is the object of this report.

Third, dr. Igor Šoltes, the only one of the Slovenian MEPs that attended the roundtable in person, emphasized that currently there is no balance that is so much talked about. This is because the definitions in the directive are so general, so unclear and vague that they raise more questions as there are answers to. This can cause a very wide field of interpretation which consequently weakens legal certainty and challenges the fundamental intent of balance. In his view, the European Commission did not do its homework regarding the impact assessment which was not made for the web and for the fields of privacy, protection of personal data and education. The lack of an adequate impact assessment lead to the fact that the directive received more than 200 amendments and the great majority of the MEPs are not even familiar with the final text on which they will be voting the following week.

Forth, MEP Lojze Peterle explained in his video that the last confrontation of arguments convinced him to support the initiation of the trilogue between the European Parliament, the European Commission and the Council. The current status quo is, in his position, bad and in the long term harmful for Europe and its citizens. He believes that the proposed directive is a good base for the establishment of a fairer relationship with the authors. Scaring with the censorship of the internet, filters, linking tax, limitations to the freedom of internet and similar is not in accordance with the truth. Respecting copyrights does not restrict the freedom of internet neither the freedom of the users but rather limits the arbitrary disposition with unprotected copyrighted content by big platforms.

Fifth, MEP mag. Tanja Fajon, also through a video, talked about Article 11 and 13. From where she stands, those provisions are unacceptable for the redressal of authors as they are unbalanced, restricting and contradictory to the EU law. She noted that Article 3 and 4 are of great importance for education, research and the achievement of goals of the programme Horizon 2020, however, they need necessary enhancements. She agrees that the EU undoubtedly needs a change in legislation regarding copyright law, but we must ask ourselves what price are we willing to pay and to whom.

At the end the three “most interested listeners”, as the moderator named them, shared their opinion with the audience of the roundtable. Domen Savič from the institute Citizen D described his state of mind throughout 4 feelings, namely sadness, anger, horror and joy. To begin with, he is sad because the discussion does not focus on real problems but rather on basic definitions such as what is the internet. He is also angry because of the way the directive is being adopted and horrified by the level of debate that has turned into accusations on who is and who is not being paid by Google. At the same time, he is extremely happy that the debate is held on a boarder framework where the representatives of different industries, branches and ages each defends its interests while finding a common solution.

Nikola Sekulovič from the band Dan D offered to play the role of one of the “most interested listeners” in order to represent the interests of the right holders after the protest departure of three important stakeholders. He began by stating that he cannot connect Google, Facebook, Amazon and YouTube with freedom as those are the new-age intermediaries we are talking about and not the publishers and physical distributers any more. Such platforms are able to open and close their doors, to rang the content of the authors by their own keys, they can enable trading, monetarization and after all they make millions or even billions in profits. He thinks that if someone profits from their work, it is good that also authors get at least a fraction of the profit they help to generate.

Dr. Matija Damjan, an Associate Professor and the Secretary General of the Institute of Comparative Law at the Faculty of Law of Ljubljana, also presented his viewpoint. He also agreed that if we talk about the Digital Single Market in the EU, a uniform regulation of European digital law is necessary. In his opinion the regulation of the liability of internet intermediaries that went in the direction of their technical neutrality was a good one. The directive, however, forces those intermediaries to become providers of contents which turn the compromise regarding their liability. This is a bad legislative approach that results in a non-transparent regulation and because of this to him this directive is a lost opportunity.

In the name of the collective organization SAZOR (and instead of Luka Novak who left the roundtable in protest) which unites more than 1000 authors and more than 100 Slovenian publishers spoke Rudi Zaman, one of its CEOs. He spoke also in the name of the authors who in the last 10 years monitored the protection of copyrighted works in elementary and high schools in connection with photocopying but did not receive any compensation. The result of this is that they now fear that their works will remain unprotected and they will not receive an honest reward for their work.

Dr. Maja Bogataj Jančič closed the roundtable with the conclusion that it is obvious that many questions remain open and that even different stakeholders do not have a complete picture. She expressed the hope that the debate that was held that day would encourage the Members of the European Parliament to re-consider the addressed issues, to think through all the 200 amendments and to adopt a better proposal of the directive.