Copyright in the EU must balance interests of content creator and recipient

Michał Kanownik, president of ZIPSEE “Digital Poland” and a board member of DigitalEurope. [DigitalEurope]

The copyright reform proposed by the European Commission will hinder work on artificial intelligence, harm smaller entities on the internet and simply make life more difficult for Internet users, Michał Kanownik said in an interview with EURACTIV Poland.

Michał Kanownik is the president of ZIPSEE “Digital Poland” and a board member of DigitalEurope, a European organisation that represents the digital technology industry.

Kanownik spoke to EURACTIV Poland”s Michał Strzałkowski.

The vote on the draft amendment will take place in the Legal Commission of the European Parliament next week.

Are the changes to the copyright at the European level in its necessary?

Harmonisation of copyright is obviously needed. Especially now, as more and more activities and works are transferred to the digital world. The fields of exploitation are changing, the possibilities of access to content or its distribution are expanding. This harmonisation at EU level is all the more necessary because we currently have too many differences in the approach to copyright issues in the member states and in national laws. I am afraid, however, that in the matter of setting copyright rules in the Digital Single Market, there is a situation in which the baby was thrown out with the bathwater.

A basic mistake has been made and repeated for many years, when the copyright law reform in the context of the digital world has been discussed. The copyright law is still too analogue. You ostensibly only look at one issue – the interests of the copyright holders and the protection of those interests. Obviously, this is the basic task of copyright law, but for many months and even years, I’ve been repeating that in today’s digital age, copyright law is required not only to protect the interests of the creator but also to guarantee access to culture and science for consumers.

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Therefore, if copyright law does not balance these interests, none of these parties – consumers or creators – will be satisfied with this right and will not enable the cultural, social and scientific development of today’s societies. Also because today’s copyright does not apply only to journalists, writers or musicians, but virtually every branch of industry or economy has some connections with copyright and creativity issues. And even further, today’s technology means that each of us can be a creator. When we take a photo with a phone and upload it onto a social networking site, we already are creators. Copyright law applies to all of us.

Today, many things can be covered by copyright, this is one of the reasons why the copyright law is being amended. There is criticism that the current shape of copyright could affect, for example, the work on artificial intelligence. But where is the connection between the two?

Contrary to appearances, a lot. And even more, because in the Commission’s approach to copyright and new technologies, we notice the most contradictions.

On the one hand, the Commission is devoting a lot of work and money to promoting work on the development of artificial intelligence or robotics as the future of the EU economy in a dozen or so years, but on the other hand, the directive we are discussing is Article 3, which hinders free commercial data exchange in the EU between its member states.

For artificial intelligence to develop, and computers to learn to function intelligently on the market, you need to convert a huge amount of data. The more of this data is processed, the better the machines will learn certain mental patterns of human behaviour. If we introduce the requirement for the entrepreneur to obtain the consent of the author before using them, we will paralyse the work on artificial intelligence.

Especially since it is extremely difficult and time-consuming to determine the authors of a lot of data, for example, in the case of publicly available data on the Internet. And if we paralyse work on artificial intelligence in Europe, European business will suffer.

In what way?

The ratio is very simple. In Poland, today we have a basin of research and development centres of global corporations. We have a great engineering team and many young, ambitious and talented people. Samsung employs 2,500 engineers in such a centre in Warsaw. After South Korea, this is the third largest centre of this company.

If, however, regulations regarding copyright in the shape proposed by the Commission are adopted, such centres will quickly move outside the union, to places where there will be no such developmental barriers.

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I think that Singapore, which has recently adopted a very favourable solution in this area, is already keeping its fingers crossed for the EU to adopt its new copyright law. They would be happy to take over our jobs. The dynamically developing start-up sector in Europe would also lose as it also needs free access to data. Of course, we do not want the so-called “free-for-all mentality”, but we are calling for the creation of regulations that will not block access to data for innovative businesses and scientific ventures.

This touches on the so-called text and data mining (TDM), what does that mean?

It concerns the free exchange of data, which already exists today between various companies or research centres. It is not about songs or movies, it is about data that can be processed by computers so that they can learn. This exchange is often free or semi-commercial. There is no payment for data, just barter: data for data. The more data the computers process, the more sophisticated artificial intelligence can be created. Also, the European one.

Unless the need to identify the authors of certain information that has long been in circulation and the need to obtain the consent of these authors blocks the process in Europe, which will be freely going on in other parts of the world.

It is no longer possible to find the authors of many data sets, and nobody earns money from them directly anymore. Today they are used to develop innovative solutions that should serve us all in a dozen or so years. That is also why Europe cannot limit itself to the resource of data used to make machines “learn”. Otherwise, the EU will block its economic development by itself.

Maybe it will not be as bad as that we become an island of backwardness, but certainly, a place where work for innovative companies in this area will be much harder.

But the draft directive allows TDM for educational purposes?

The basic question here is, where does the use for educational purposes end and where does business start?

The directive permits the use of TDM too narrowly. After all, scientific development is taking place not only at universities but also at technology companies. This is particularly visible in the area of artificial intelligence. Here, one still invests and looks for solutions rather than earns from it. This activity is essentially scientific at every level. This work will benefit us all. You have to think from the perspective of a dozen or so decades, and not through the prism that today someone is missing money in his or her pocket.

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The draft of the directive also contains provisions about the obligatory use of special anti-piracy filters by various websites, which will catch illegal content. A lot of Internet users are afraid that these automatic algorithms will also apply to various parodies, alterations or quotations, even if it is, for example, a tribute to a given creator.

I believe that this is one of the most dangerous entries in the draft directive – for several reasons. First of all, there will be a huge problem with the determination of who, how and in what mode should evaluate a photo, meme or commentary that someone will upload on any service.

This, in my opinion, creates a potential risk of web quasi-censorship. I imagine that some companies will just delete content, out of pure desire to ensure process safety. They will prefer to do so rather than risk having someone accuse them of breaking someone’s copyrights. This already goes beyond the ideas of freedom of speech or internet freedom.

Secondly, these provisions pose a great danger to smaller portals, websites or information aggregators, because there will be a barrier to staying on the market. I imagine that a global Internet company will manage the requirement of filtering because even if it is expensive or technically difficult, it simply can afford it, whereas a small grassroots information portal will be quite helpless in the face of these requirements. It will either block a lot of content or disappear from the market.

I do not understand why the EU, which is a mainstay of freedom and equality, directly imposes the obligation to check what anyone wants to write on the internet. This does not go together very well. Content is duplicated so quickly by subsequent websites that it may be difficult to prove that I am the author of the photo that I made with my phone and illustrated the article with.

And thirdly, I am afraid that we are creating a very effective tool that can be used not necessarily to protect copyrights, but simply for a battle, for example, between media editors with different political profiles. Or simply between normal people. It will be easy to block some content on the internet and it will be completely in line with the law. After all, I can then accuse a journalist I do not like of infringing copyright law. Today we have such cases, for example on Twitter or YouTube. Now let us multiply it by a thousand times.

I also do not understand the idea of introducing such mandatory filters. After all, on many websites where you share music or videos, there are options for reporting copyright infringement. If someone reports such a case, for example on YouTube, then this website will explain it and take appropriate steps, if necessary. Let us not weigh out the doors that are already open.

Are you saying that this could be the end of sharing funny cat pictures on the internet?

If the directive will remain in the form proposed by the Commission, it can very well be the case.

We are currently looking through the window at Piłsudski Square in Warsaw and at the Tomb of the Unknown Soldier located here. We can take a picture of it and put it online. But without doubt, there are thousands of such photos on the internet. And probably even made from the same cafe and exactly from the same spot on an equally sunny day. How do I prove that the photo I uploaded to the social website is my authorship? Do I have to ask you to make a photo of how I take the picture? That would be indeed strange.

In the discussion on the copyright directive, there is also the mention of possibly introducing a ‘tax on links’. Of course, this is not about a real tax, but about the fee that search engines or websites that collect links to, for example, press articles, would pay to authors or publishers. Publishers or newspapers argue it is necessary because websites earn from the content they create and do not share this profit.

I do not understand this either. After all, today, every journalist or author of a text has the opportunity to assert his rights if they have been violated. Whether publishers do it and how effective they are is a completely different matter. Introducing a right related to the so-called link tax will make the largest publishers naturally benefit. I am afraid that if search engines or aggregators of content will have to pay for placing links to content, they will inevitably choose larger content providers. The big ones get along with the big ones.

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I omit here the obvious absurdity of the very idea of charging for linking to content – anyone who has even elementary knowledge of the Internet knows that linking is beneficial for the author because it brings visitors to its site, and the revenues follow then.

Such regulations already apply, for example, in Spain or Germany. How do they work?

In Spain, these fees have been limited to so-called content aggregators. Unfortunately, the publishers did not suddenly start to receive more money and journalists didn’t start earning more. Aggregators stopped working and local Spanish media simply lost here.

It turned out that the decrease in traffic observed by the entire industry was much more related to small, local and specialist publishers, for whom the traffic coming from aggregators was much more important than for large, established dailies. The legislator, however, blocked them from being able to grant a license without remuneration, cutting them off from the public. So the result is that not only part of the Spanish small media collapsed, but also smaller aggregators of content. They were unable to bear the new costs. We are afraid that the effect at EU level will be very similar.

The situation is somewhat different in Germany, where the law is wider, it also applies to search engines, but allows the granting of a license without remuneration. Big press companies, of course, gave such licenses to the largest online companies, but not to small ones. One group resisted for a couple of weeks, but the empirical experience of falling traffic and income quickly changed the policy – confirming what I said earlier.

Apart from a few cases forced by the circumstances of payment, this law in Germany also did not bring any income to publishers, let alone journalists…

In countries such as Poland, where the market of local publishers is very large, the threat is the same. The largest media companies would also benefit from us. I am afraid of a situation in which, with the help of money, it will be possible to control what information will be better available in the network than others. Consumers will suffer the most.

Publishers argue that search engines or aggregators earn from something they have not created. They point to the fact that they bear the costs of producing content – reportages, articles or interviews – and someone makes money from it even if only a link and a piece of text is provided, because it can display advertisements.

I could maliciously say that the world is simply changing and technologies are changing. Publishers have to prepare for this and adapt their business model to the situation. But – at least in Europe – it is still difficult to make money out of online content, though the US example shows that it is possible. However, good business models are needed and a good content offer for the online consumer as well. But this is a challenge only for publishers.

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To me, it seems, however, that professional journalists are just like scientists who publish their scientific works in the form of books. These books are later published in limited edition. They are, however, photocopied by students at universities. The spread of this scientific knowledge promotes the scientist and his or her ideas. The works read in fragments create interest for the entire publication. Journalists and the media benefit the same way from the sharing of fragments of articles in the search engines. The Internet is the best tool for promoting content. Publishers must be helped to monetise their content on the internet and to be able to assert their rights on the basis of already existing law.

First and foremost, however, as mentioned above, presence in the aggregator or search engine is beneficial for the publisher – it leads to traffic. And if they think that it is not, then there are extremely easy ways to exclude yourself from indexation and search results – just put a tiny robots.txt file and the case of alleged “use” immediately disappears. Publishers, however, do not do that because they know perfectly well that this argument is false and that they will simply lose out.

What’s next for the draft directive?

On 20-21 June, the Legal Affairs Committee (JURI) will vote on it in the European Parliament. Then we will know the final shape of the project. Several versions of it are still being considered. Unfortunately, it will most likely be the most conservative approach to the copyright issue. Although it has already been eased thanks to the efforts of the Bulgarian Presidency – the Bulgarians have worked hard to find a compromise. But in my opinion, this is a typical “rotten” compromise.

After the vote in the JURI Committee, the project will go to the plenary and then to the European Council. But it is the vote in the JURI Committee that is crucial, because it will circle the area in which we will move from now on. Only minor changes will be possible after that.

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