We are just less than 6 months away from the full implementation of Article 17. With it, 447 million Europeans and maybe more should experience what social media looks like when content creators are appropriately compensated when their creations are shared. Photographers, in particular, should see, for the first time, their work adequately licensed. Well, at least, that is the idea.
As a reminder, article 17 of the Copyright directive dictates that an online content-sharing service provider shall obtain authorization from rights holders to use their work.
If no authorization is granted, online content-sharing service providers shall be liable for unauthorized usage.
- They made “best efforts” to obtain authorization or
- acted expeditiously to take down uploads of work for which they have received a takedown notice.
All of the above does not apply in fair use cases, like quotation, criticism, review, caricature, parody, or pastiche.
That is the “directive” part. Each member state needs to take this and pass laws in their respective countries.
With less than six months to go, one would think that the 27 member states of the European Union are just ready to flip a switch to make article 17 of the Copyright Directive a law. Or at least the majority of them. In fact, it is quite the opposite. Only four countries, France, Germany, Austria, and the Netherlands, have taken the preliminary steps of advancing the directive to a law. One, Poland, has challenged the article in court to have it canceled. The others are in a complete apparent limbo. Obviously, the pandemic is not helping.
There is no magic wand.
The main hurdle is the actual implementation. In Bruxelles, lawmakers never bothered to figure how all this would actually work, erroneously believing that some technology fix will easily solve it. Problem is, technology is not magic. To check if content is legally allowed to be shared, sharing platforms would need to check the content of each upload against an up to date database of right holders. Once identified, it would need to know if it has an existing license agreement with the right holder is already in place or if it needs one. Considering the volume of content uploaded to these sites, only an automated filtering system would work.
This could be done with content like music, movies, or paintings since databases with known rights holders exist. Youtube already operates “Content ID,” which works along this model for video and music.
Not so for copyright owners of photography. Besides photo agencies that hold limited territorial rights for about 0.001% of all images uploaded, there is no image right holder registry. The US Copyright Office contains information about copyright owners, which is not the same as right holders. Furthermore, their database is not set up for queries via a similarity search.
To make matters more complicated, no existing filtering system can distinguish a fair usage from one that is not.
Solutions or escape routes
While understandably extremely reticent, some of the targetted online content-sharing service providers have nevertheless started to test possible solutions.
- Google launched the “Licensable badge,” allowing a public view of an image’s license / right holder. Over time (decades), if sufficiently adopted by the vast majority of photographers, this could lead to a searchable index of copyrighted images and corresponding rights holders( if Google allows it).
- Facebook has launched “Rights manager,” which allows owners of an extensive collection of images to manage Facebook usage.
- Youtube has run for a while its “content ID’ solution, allowing music and videos right owners the possibility to manage usage of their creation and participation in revenue sharing. It could, in theory, be extended to photos contained in videos.
Twitter, Pinterest, Snap, or Tik Tok, have made no visible efforts to this day.
On the rights owner side, proposed non-technical solutions include the wide adoption of extended collective licensing. Online sharing platform would get a general license for all images by paying a yearly license fee to one of the authorized collection agency. In turn, those ECL would redistribute to the appropriate photographers or rights holders.
The issue here is clear: Rights collection agencies have no means to know all the rights owners. Nor are they motivated to find out. All money undistributed is for them to keep. Historically, those rights collection management agencies have distributed only 8% of the money they received. With no transparency regulation in place, they will clearly be the biggest winner of the implementation of Article 17. Photographers, especially those in non-EU countries, unaware of the procedures, will be the biggest losers. Ironic since the whole initial purpose of the directive is to minimize the value gap for content creators.
So how does one get ready?
First and foremost, fill in all relevant IPTC fields. While not really a standard, it is the most common place where right holder information is expected to be found. At minimum, adhere to the Google Licensable badge schema.
Lobby to avoid countries to adopt the Extended Licensing solution. This will deny photographers and photo agencies control of how their content is compensated. It will put in the hands of disassociated bureaucrats who have little to no incentive to make it fair. CEPIC, BAPLA, BVPA, and DMLA are good starting points to make your voices heard if you are a photo agency. For independent photographers, look to your countries foremost association.
Do not sign off your rights under a general blanket release without evaluating all your options.
Do not think that because you are not in Europe, this will not affect you. It will. No one will reach out to you and tell you what you need to do. Stay informed.
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