That’s it; it’s done. The European Directive on Copyright is passed, and along with it, the infamous “Article 13”, now Article 17 in the latest document. However, what will it mean for photo agencies and independent photographers?
We will pass on the history (lobby pressures, various committees, social media firestorm) behind the creation of this directive, as well as a lengthy explanation of its implementation. All that needs to be known, really, is that each member state of the EU will now proceed in voting locals laws applying the motions of the directive. Some countries, like France, are expected to do this a soon as the end of the summer of 2019. Yes, in a few months.
What Article 17 of the directive orders is for large content sharing platform (anyone generating over €10 million1 a year, with more than 5 million active monthly users and in business for longer than 3 years) to get a proper copyright license to display sharable content. In other words, Youtube, Facebook, Instagram, Pinterest, Twitter, Vimeo, will need to comply or turn off access in the EU. The other lesser companies will still need to “make best efforts to obtain an authorization” and be expedient in taking down content in case of a complaint.
So, the real issue is how will this benefit, or not, the stock photo industry?
Well, not much, if any at all.
Most, if not all right-managed photo agencies, have long integrated into their licensing agreement the right to share content on social media. In other words, upon obtaining a license for any usage, a stock photo client can use the image, in context, on social media, for no additional fee or license rights. They are thus already providing social media platforms targeted by the directive a full legitimate right to display without having to secure a license. This “plus social media” will be even more requested by clients as the directive comes in effect, as clients will not want to see their efforts blocked by a stock photo agency’s restrictive policies.
Thus those who have already have it in place will see no upside to this directive and those who didn’t will be forced to comply or lose some customers.
For photo ies licensing royalty-free, the case is even more straightforward. Because the rights granted are extensive, they already include the right to publish on social media. So no changes here. Regardless, since most of the photos provided on RF are non-exclusive ( available on other RF stock photo agencies) it would be impossible to enforce it: They would be unable to know if an image came from them or a competitor.
So what about the independent photographers?
They are the ones who could benefit the most out of this directive. However, since they do not have any centralized rights management database, it is very doubtful that social media sites will bother reaching every single one of them for a few usages here and there. Nor will they build costly automatic upload filters as they will not have a database to check against. Instead, Facebook, Instagram, and others will pay a yearly general license fee to one of Europe’s collective management collection agencies. Since those collection agencies also have no infrastructure in place to accurately monitor whose content is being used, they will keep most of the income and distribute the rest to a few lucky sub-organization ( think ASMP) representing photographers. In the end, most individual photographers will not see a penny. They will not even be able to claim copyright infringement as the license will have been paid to a collective management agency.
The irony of it all is that this directive was supposed to fix what is called the value gap: That is, the fact that social media generates billions of dollars on income from content they do not license. But, instead of redistributing this value back to creators or rights holders, it will only make intermediaries organization wealthier. The value gap will undoubtedly shift, but not to its creative base.
The second irony is that this directive was aggressively supported by photo agency organizations like CEPIC or DMLA supposedly in defense of its members. However, the only beneficiaries will be opaque collection agencies.
The truth is…
…this directive was written by the EU to settle the score with US internet giants, not to redistribute value fairly. A sort of targeted anti-monopoly law in disguise. By instituting heavy restrictions, it curtails their ability for growth, establishes rules for potential future mass litigation, and blocks any newcomers from reaching comparable financial heights. This directive uses copyright legislation as a weapon against a few companies rather than empowering all creators.
It is quite possible that large photo agencies like Getty Image, Shutterstock or even Adobe could negotiate yearly bulk licensing agreements with the targeted social media platforms by guarantying them a litigation-free existence. They control, after all, most of the professionally licensed images in the world ( along with persistent in-house lawyers). However, for the rest of the stock photo world and independent photographers, they will have to sit back and watch as their images make others wealthier.
Main Photo by Christian Wiediger on Unsplash