Will EU’s Article 13 Help Photographers?

Posted on 6/25/2018 by Jim Pickerell | Printable Version | Comments (2)

Last week, the European Parliament’s Committee on Legal Affairs approved amendments to the EU’s Directive on Copyright in the Digital Single Market. EU’s Directive on Copyright in the Digital Single Market. Among the amendments approved was Article 13.

This vote marks the first step of the parliamentary procedure to adapt copyright laws to meet the challenges of today’s Internet. The last laws to address copyright in the information society date back to 17 years to the Digital Millennium Copyright Act (DMCA) implemented in the U.S. in 2001. That law exempted Internet Service Providers from any liability for displaying images supplied by users of their services. Today’s Internet is fundamentally different from 2001.

Article 13  ”creates an obligation on information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users to take appropriate and proportionate measures to ensure the functioning of agreements concluded with rightsholders and to prevent the availability on their services of content identified by rightsholders in cooperation with the service providers”.

In other words, if the service provider does not have specific permission from the image creator, or the creator’s representative (stock agency), the service provider has no legal right to display an image on its website and may be held legally liable.

The decision to start negotiations will be announced at the opening of the July plenary session on 2 July. At this moment, Members of the European Parliament (MEPs) can challenge this decision and request that a plenary vote be taken on whether to launch negotiations or not.

As might be expected there are widely differing opinions of the advisability and practicality of this proposal.

Identifying Copyrighted Images

Since a huge percentage of creators posting images on the Internet today would be happy to have anyone and everyone use and re-post their images, there must be some way to identify the ones protected by copyright from all the others.

Earlier this year I wrote of the need for a single, central, worldwide Image Creator Locator (ICL), a visually searchable database.

Any image creators, worldwide, would be able to upload a 500K file of any image they wanted to protect to the ICL site. Internet users who want to re-post an image they have found on the Internet could simply do a visual search of this database, obtain the image creator’s contact information and then contact the creator for permission to use the image.

It would be incumbent on every creator who wants copyright protection for their images to add any new image they create to the ICL. Ideally, the images should be posted to the ICL before posting on the creator’s own site, or including it in any stock agency collection. Stock agencies might preform this task for creators. Images that have already been used might also be added to the ICL. Those who might have used the image before it was posted in the ICL would not be obligated to pay compensation, but new uses occurring after the upload into the ICL, would be required to have obtained permission and pay compensation.

Critics have pointed out that no such database currently exists and would be very expensive to create. However, it seems to me that if Google, Pinterest, Facebook, Twitter, Instagram (and maybe others) wanted to avoid the hassle and financial risk of being liable for unauthorized hosting of images, they could easily work together to create and host such a database at very little cost to thenselves.

Once such a database is available, all Internet Service Provider could insure that whenever a user of their site attempts to upload an image, the ISP’s site would automatically search the ICL. At that point, assuming the image uploaded was included in the ICL, the ISP would send a message to the person uploading the image telling them that the image is under copyright. The ISP would send a separate message to the copyright holder with contact information for the person uploading the image. At that point the ISP would be relieved of all liability.

The person who wanted to use the image would know that if they choose to leave the image on their site, they should contact the copyright owner and request permission. If they don’t request permission, and continue to use the image, they will be legally liable to pay compensation. In addition, the copyright holder will have the users contact information and be able to pursue the unauthorized use.

Melcher points out that the similarity algorithms are notoriously unreliable and research shows that image matching produces (false positives) about 20% of the time. If that is the case, then creators would receive compensation 4 out of every 5 times one of their images is used. While, not perfect, it would be a lot better than the situation today.

The principle of fair pay for work done should apply to everyone, everywhere, whether in the physical or online world.

Copyright © 2018 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-461-7627, e-mail: wvz@fpcubgbf.pbz

Jim Pickerell is founder of www.selling-stock.com, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to: http://www.jimpickerell.com/Curriculum-Vitae.aspx.  


  • Sylvie Fodor Posted Jun 26, 2018
    The present law proposal is about a "fair and sustainable internet" by leveraging the negotiating power of rightsholders towards internet platforms using their works for free. Do you want Google to make all the rules for you or do you want to sit at a table with Google? With all its flaws, this law would help the creative industries sit at a table with internet platforms.

  • Carola Streul Posted Jun 30, 2018
    I agree: the EUDirective strengthens photographers and authors in general. But individual direct licensing up-front is no solution for non commercial mass use on sharing and social media. Micro payments are all you may expect. All initiatives to set up the global databases are brave, but costly venture. Never complete but a valuable piece in the jig saw puzzle of Image rights. Why hand hosting and control over to those who deny all authors‘ rights? Before any micro payment roles into the photographers pocket, the 20% false positive will be held against you until all cleared, one by one. Think collective management governed by photographers, non commercial use on sharing and social media would be permitted upfront against a lump sum from the platform, database intelligence remains under authors and picture agency control and is used for distribution of moneys. Commercial use is a different matter. Users of platforms are not liable. Commercial use is another matter. All that is possible with the Directive as it stands. I agree with Sylvie!
    Carola Streul
    EVA Brussels

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