This document discusses lessons for EU copyright reform from current copyright practice. It notes that under current law, rights clearing is required for each use but registration is prohibited, and copyright terms are ever-lengthening. However, many internet users are unsure about legal uses online. While some services have been found illegal due to infringing content and others legal despite such content, "Googleright" shows how Google benefits from tailored copyright rules. The document argues that proposed reforms strengthening copyright will paradoxically benefit large firms like Google the most. It suggests aligning copyright rules with exceptions for non-commercial quotation, remixing, and small "ticket" fees to better balance copyright and new types of use.

1. Lessons from Copyright Practice
for EU Copyright Reform
Leonhard Dobusch
University of Innsbruck
Digital Europe Working Group
Brussels, September 26, 2017

2. <1>
Copyright in the Books

3. (1) Rights clearing in each individual case
(2) Prohibition of registration requirements
(3) Ever longer protection terms
Cornerstones of Copyright in the Books

4. Using a copyrighted
work…
…on a private, not-for-
profit website
(e.g., personal blog)
…for private purpose on
a commercial platform
(e.g., YouTube, Twitter)
…for commercial,
for-profit purposes
…in small parts for
creating a new work
(e.g., remix, sampling)
Prohibited without
clearing copyrights
Prohibited without
clearing copyrights
Prohibited without
clearing copyrights
…as a whole for
a new work
(e.g., background music)
Prohibited without
clearing copyrights
Prohibited without
clearing copyrights
Prohibited without
clearing copyrights
…as whole without
creating a new work
(e.g., illustrative image)
Prohibited without
clearing copyrights
Prohibited without
clearing copyrights
Prohibited without
clearing copyrights
Copyright in the Books

5. <2>
Copyright in Action

6. Forty-four per cent of all internet users
aged 12+ claimed to be either ‘not
particularly confident’ or ‘not at all’
confident in terms of what is legal and
what isn’t online.
Online copyright infringement tracker
benchmark study, commissioned by the Office
of Communications (Ofcom) UK, 2012
“

9. DO COPYRIGHT EXPERTS KNOW?

10. Illegal in spite of non-infringing practices?
A&M Records v. Napster
(2001)
Arista v. LimeWire
(2010)

11. Legal in spite of infringing practices?
Viacom v. YouTube
(2007)

12. 3%
3%
4%
5%
5%
5%
6%
12%
32%
53%
0% 25% 50%
N.B.: Survey predates launch of Apple Music
PERCENTAGE OF INTERNET ADULTS, PAST 3 MONTHS
RADIO
Source: http://de.slideshare.net/ActivateInc/activate-tech-and-media-outlook-2016
Legal in spite of infringing practices?

13. YouTube as a Music Library
Source: Heald, P.J. (2013): How Copyright Keeps Works Disappeared,
http://ssrn.com/abstract=2290181
Views of No.-1-Hits from
the USA, France, & Brazil
from 1930-1960

14. Enforcement and Monetization

19. (1) Rights clearing in each individual case
(2) Prohibition of registration requirements
(3) Ever longer protection terms
Copyright in the Books

20. (1) One Stop Shop
(2) Mandatory registration*
(3) Use it or lose it*
Copyright in Action aka »Googleright«
*Aside from highly impractical and expensive notice&takedown in each individual case

21. »Googleright« in the Press Publisher's Case in Germany
Press publisher's ancillary right often referred to
as a "Lex Google">
Only Google received permission to use the
content of German Press Publishers free of
charge, to avoid losses in traffic.
>

22. »Googleright« and the Right to Link
2016: ECJ in GS Media v Sanoma (C-160/15):
The linker is presumed to know about
infringement in case a link is placed to infringing
content in "for profit" contexts.
>
2017: German Federal Court of Justice (BGH) on Google Image search (I ZR 11/16):
Because of the particular importance of search
engines for the basic functioning of the Internet,
this presumption is not valid for search engines.
>

23. <3>
Lessons for Copyright Reform

24. Art. 11 on new »press publishers' right«
not only negatively affect freedom of expression and
information, but also distort competition in the
emerging European information market.
“ European Copyright Society, 2017
https://europeancopyrightsocietydotorg.files.wordpress.com/2015/12/ecs-
opinion-on-eu-copyright-reform-def.pdf

25. Art. 13 on »upload filters«
"serious risks of
contrasts with the
Charter of Fundamental
Rights as well as with
copyright exceptions"“ Hilty & Moscon, 2017
http://www.ip.mpg.de/fileadmin/ipmpg/content/stellungnahmen/
Answers_Article_13_2017_Hilty_Moscon-rev-18_9.pdf
Direct dangers Indirect problems
Hurts competition
and non-profit
platforms for user-
generated content
such as Wikipedia
>

26. This is the reality of reform proposals seeking to
expand copyright strength and scope:
As much as large incumbents such as Google
may moan and groan, paradoxically they are, in
nearly all cases, the biggest beneficiaries.
REGULATION PARADOX

27. (1) Without reform, Google wins.
(2) With stricter copyright, Google wins.
(3) »Googleright« shows direction for copyright reform

28. Using a copyrighted
work…
…on a private, not-for-
profit website
(e.g., personal blog)
…for private purpose on
a commercial platform
(e.g., YouTube, Twitter)
…for commercial,
for-profit purposes
…in small parts for
creating a new work
(e.g., remix, sampling)
legal due to quotation
and remix exception
legal due to quotation
and remix exception
legal with standardized
collecting society fee
(analogous to covers)
…as a whole for
a new work
(e.g., background music)
legal due to remix
exception, lump-sum
compensation
legal due to remix
exception, compen-
sation by platform
Prohibited without
clearing copyrights
…as whole without
creating a new work
(e.g., illustrative image)
notice free of charge,
capped fee („ticket“)
notice free of charge,
compensation by
platform
Prohibited without
clearing copyrights
Aligning copyright in the books and in action
with remunerated remix and bagatelle exceptions:

29. THANK YOU!
E-mail:
Leonhard.Dobusch@uibk.ac.at
!
Twitter:
@leonidobusch
!
Websites:
bit.ly/LD_UIBK // www.dobusch.net
!
Research blogs:
governancexborders.com // osconjunction.net