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What is the Copyright Directive about?

MD Staff

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Digital technologies have transformed the way creative content is produced, distributed and accessed. The new Directive brings the copyright rules up to date with those changes and the way users access content online. For example, copyright exceptions exist in the areas of education, research and preservation of cultural heritage, but the digital uses were not anticipated by the current rules, which dated back to 2001. Therefore, this limited the possibilities for users (e.g. educational establishments, research institutions, libraries) to benefit from the potential of new technologies. In addition, the current EU copyright framework does not address the problems that emerged in the recent years in relation to the distribution of value in the online environment.

The Directive aims to create a comprehensive framework where copyrighted material, copyright holders, publishers, providers and users can all benefit from clearer rules, adapted to the digital era.

In order to achieve this goal, the Copyright Directive focuses on three main objectives:

Wider opportunities to use copyrighted material for education, research and preservation of cultural heritage: the exceptions allowing these uses have been modernised and adapted to the technological changes, to allow uses online and across borders.

More cross-border and online access for citizens to copyright-protected content: The Directive will contribute to increase the availability of audiovisual works on video-on-demand platforms, facilitate the digitalisation and dissemination of works that are out of commerce and will make sure that all users are able to circulate online with full legal certainty copies of works of art that are in the public domain.

Fairer rules for a copyright marketplace which will function better and will stimulate the creation of high-quality content: a new right for press publishers in relation to the use of their content by online service providers, a reinforced position of right holders to negotiate and be remunerated for the online exploitation of their content by user-uploaded content platforms and transparency rules related to the remuneration of authors and performers.

How will the new rules tackle the so-called ‘value gap’ between the creators and the online platforms?

One of the objectives of the Directive is to reinforce the position of creators and right holders to negotiate and be remunerated for the online use of their content by certain user-uploaded content platforms.

According to the text adopted today by the European Parliament, the platforms covered by the new rules are considered to be carrying out acts covered by copyright (i.e. performing acts of communication or making available to the public) for which they need to obtain an authorisation from the right holders concerned.

In situations where there are no licensing agreements concluded with right holders, the platforms will need to take certain actions if they want to avoid liability. In particular, they will need to (i) make best efforts to obtain an authorisation, (ii) make best efforts to ensure the unavailability of unauthorised content regarding which right holders have provided necessary and relevant information and (iii) act expeditiously to remove any unauthorised content following a notice received and make also their best efforts to prevent future uploads.

What will be the special regime for smaller enterprises foreseen in relation to the value gap?

New small platforms will benefit from a lighter regime in case there is no authorisation granted by right holders.

This concerns online service providers which have less than three years of existence in the Union and which have a turnover of less than 10 million euros and have less than 5 million monthly users. In order to avoid liability for unauthorised works, these new small companies will only have to prove that they have made their best efforts to obtain an authorisation and that they have acted expeditiously to remove the unauthorised works notified by right holders from their platform.

However, when the audience of these small companies is higher than 5 million monthly unique viewers, they will also have to prove that they have made their best efforts to ensure that works that have been notified by right holders do not reappear on the platform at a later stage. 

How does the Directive ensure a fair remuneration of authors and performers?

The Commission’s proposal aimed to increase transparency and balance in the contractual relations between content creators (authors and performers) and their producers and publishers.

The final Directive contains five different measures to strengthen the position of authors and performers:

A principle of appropriate and proportionate remuneration for authors and performers;

A transparency obligation to help authors and performers have access to more information about the exploitation of their works and performances;

A contract adjustment mechanism to allow authors and performers to obtain a fair share when the remuneration originally agreed becomes disproportionately low compared to the success of their work or performance;

A mechanism for the revocation of rights allowing creators to take back their rights when their works are not being exploited; and

A dispute resolution procedure for authors and performers. 

How will the new Directive support the press and quality journalism?

The new press publishers’ right will apply to online uses of press publications by information society services providers, such as news aggregators or media monitoring services. The objective of this right is to help the press publishing industry benefit from a fairer market place and to promote the best possible environment to develop innovative business models. The new right strengthens the bargaining position of press publishers when they negotiate the use of their content by online services.

Journalists, as authors of the contributions, i.e. the articles, in press publications, are essential in the press sector for providing reliable and quality journalistic content. By facilitating the online exploitation of press publications and making the enforcement of rights more efficient, the Directive will have a positive impact on them. And, in order to make sure that the journalists will benefit economically from the press publishers’ right, the Directive provides that they will receive an appropriate share of the revenues generated by it. By ensuring the sustainability of the press sector, the new right will foster plural, independent and high-quality media, which are essential for the freedom of expression and the right to information in our democratic society.

Does the new press publishers’ right also cover parts of press publications (so-called ‘snippets’)?

According to the text voted today by the European Parliament, the use of individual words and very short extracts of press publications does not fall within the scope of the new right. This means that information society service providers will remain free to use such parts of a press publication, without requiring an authorisation by press publishers. When assessing what very short extracts are, the impact on the effectiveness of the new right will be taken into account.

Does the new press publishers’ right affect individual users?

The Directive does not target individual users, but online uses of press publications by large online platforms and services, such as news aggregators. Internet users will continue to be able to share content on social media and link to websites and newspapers (acts of hyperlinking), just as it is the case today.

Moreover, the acts of hyperlinking and the re-use of single words or very short extracts by online platforms and services will be excluded from the scope of the new right granted to press publishers of press publications.

How do the new copyright rules protect users and their freedom online?

The Copyright Directive,voted today by the European Parliament, protects freedom of expression, a core value of the European Union. It sets strong safeguards for users, making clear that everywhere in Europe the use of existing works for purposes of quotation, criticism, review, caricature as well as parody are explicitly allowed. This means that memes and similar parody creations can be used freely. The interests of the users are also preserved through effective mechanisms to swiftly contest any unjustified removal of their content by the platforms.

The new provisions on user-uploaded platforms will facilitate the conclusion of licences between commercial players and will contribute to improve the remuneration of creators.

To take one example: the new rules applicable to the use of press publications online will only apply to commercial services such as news aggregators, not to users. This means that internet users will continue to be able to share such content on social media and link to online newspapers.

Will the Directive impose uploading filters online?

No. The new rules do not impose uploading of filters nor do they require user-uploaded platforms to apply any specific technology to recognise illegal content. Under the new rules, certain online platforms will be required to conclude licensing agreements with right holders – for example, music or film producers – for the use of music, videos or other copyright protected content. If licences are not concluded, these platforms will have to make their best efforts to ensure that content not authorised by the right holders is not available on their website. The “best effort” obligation does not prescribe any specific means or technology.

Will the Copyright Directive prevent users from expressing themselves on in the same way as now? Will memes and GIFs be banned?

No. Uploading memes and other content generated by users for purposes of quotation, criticism, review, caricature, parody and pastiche (like GIFs or similar) will be specifically allowed. Users will be able to continue to upload such content online, but the new rules will bring clarity in this respect and will apply in all EU Member States.

Until now, copyright exceptions allowing these uses were only optional and Member States were free not to implement them. Under the Copyright Directive, this will no longer be the case: Member States will be obliged to allow these uses. This is a particularly important step for the freedom of expression online.

What are the other exceptions to copyright rules included in the Directive?

Exceptions or limitations to an exclusive right allow the beneficiary of the exception – an individual or an institution – to use protected content without the prior authorisation from right holders. Exceptions and limitations exist to facilitate the use of copyrighted content in certain circumstances and achieve specific public policy objectives such as education and research. The new Directive brings the EU framework on exceptions up to speed with digital uses in certain areas like education, research and cultural heritage. It introduces four mandatory exceptions for:

  • Text and data mining (TDM) for research purposes;
  • A general TDM exception for other purposes;
  • Teaching and educational purposes;
  • Preservation of cultural heritage.

The aim is to open up the possibilities that digital technologies offer to research, data analytics, education and heritage preservation, also taking into account online and cross-border uses of copyright-protected material. 

How will the directive facilitate the access to more content protected by copyright for education, culture, and research purposes?

The copyright exception for text and data mining will simplify the copyright clearance burden for universities and research organisation. It will allow them to use automated technologies to analyse large sets of data for scientific purposes in all legal certainty, including when they engage in public-private partnerships. This will support scientific endeavours and innovation, e.g. helping find cures for diseases or new ways to address climate change.

Complementary to this, an additional exception for text and data mining, for other users will cover text and data mining going beyond the area of research. This exception will contribute to the development of data analytics and artificial intelligence in the EU.

The new teaching exception for educational establishments and teachers covers digital cross-border uses of content protected by copyright for the purposes of illustration for teaching, including online. This will for example ensure that educational establishments can make available, in full legal certainty, teaching content to distance students in other Member States through their secure electronic environment, e.g. a university’s intranet or a school’s virtual learning environment.

The new preservation exception will allow libraries and other cultural heritage institutions (e.g. archives, museums) to make copies of the works in their collections, taking advantage of new digital preservation techniques. This new rule will make it possible to digitise the EU cultural heritage to preserve it. This will benefit the access to our culture heritage by the future generations. 

What is the new provision on public domain of works of art?

When a work of art is not protected by copyright anymore, for instance an old painting, it falls into the public domain. In that situation, everybody should be free to make, use and share copies of that work. This is not always the case today, as some Member States provide protection to copies of those works of art.

The new Directive will make sure that nobody can claim copyright protection on works in the field of the visual arts which have already fallen into the public domain. Thanks to this provision, all users will be able to disseminate online with full legal certainty copies of works of art in the public domain. For instance, anybody will be able to copy, use and share online photos of paintings, sculptures and works of art in the public domain when they find them in the internet and reuse them, including for commercial purposes or to upload them in Wikipedia. 

What is the provision of the Out-of-commerce works about?

The Directive introduces a new licensing mechanism for out-of-commerce works:books, films and other works that are still protected by copyright but cannot be found commercially anymore. This will make it much easier for cultural heritage institutions, like archives and museums, to obtain the necessary licences to disseminate to the public, notably online and across borders, the heritage held in their collections. This system makes it much easier for cultural heritage institutions to obtain licences negotiated with the collective management organisations representing the relevant right holders.

The new rules also provide for a new mandatory exception to copyright in case there is no representative collective management organisation representing the right holders in a certain field, and therefore cultural heritage institutions do not have a counterpart to negotiate a licence with. This so-called “fall-back” exception allows cultural heritage institutions to make the out-of-commerce works available on non-commercial websites. 

What is the new provision on collective licensing with an extended effect about?

The new provision on collective licensing with an extended effect enables Member States to allow collective management organisations to conclude licences covering rights of non-members, under certain conditions. This mechanism facilitates the clearance of rights in areas where otherwise individual licensing may be too burdensome for users. The provision includes a number of safeguards that protect the interests of right holders. 

What is the negotiation mechanism for video-on-demand platforms? How will the new rules work?

Despite the growing popularity of on-demand services (like Netflix, Amazon Video, Universcine, Filmin, Maxdome, ChiliTV) relatively few EU audiovisual works are available on video-on-demand (VoD) platforms. Less than half (47%) of EU films released in cinemas between 2005 and 2014 are available on at least one VoD service. Also, EU audiovisual works are often not available on platforms outside their home country; around half of EU films are available in only one country and 80% of EU films are available in three European countries or less on VoD services. This is partly explained by difficulties, including contractual ones, in acquiring the rights.

The Directive voted today by the European Parliament provides a new negotiation mechanism to support the availability, visibility and circulation of audiovisual works, in particular European. It will make the process of reaching contractual agreements smoother and unblock difficulties related to the licensing of the necessary rights to make available films and series on VoD platforms. More licenses means that more European audiovisual works will be available in VoD platforms and will have also a positive effect on the type and variety of works made available on VoD platforms.

What are the next steps?

The text adopted today by the European Parliament will now need to be formally endorsed by the Council of the European Union in the coming weeks. Once published on the Official Journal of the EU, Member States will have 24 months to transpose the new rules into their national legislation.

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Science & Technology

Are robots sexist? UN report shows gender bias in talking digital tech

MD Staff

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Two schoolgirls make use of classroom computers at San Jose, a rural secondary school in La Ceja del Tambo, Antioquia, Colombia. Photo: World Bank/Charlotte Kesl

Why do most voice assistants have female names, and why do they have submissive personalities? The answer, says a new report released on Friday by UNESCO, the UN’s Education, Science and Culture agency, is that there are hardly any women working in the technical teams that develop these services and other cutting-edge digital tools.

The publication, produced in collaboration with the Germany Government and the EQUALS Skills Coalition – an alliance of public and private sector partners which encourages the involvement of women and girls in scientific and digital technology sectors – is called “I’d Blush If I Could.”

The title is a reference to the standard answer given by the default female-voice of Apple’s digital assistant, Siri, in response to insults from users. Apart from Siri, other “female” voice assistants also express submissive traits, an expression of the gender bias built in to Artificial Intelligence (AI) products as a result of what UNESCO calls the “stark gender-imbalances in skills, education and the technology sector.”

Several recommendations are made in the study, including advice to stop making digital assistants female by default; programming them to discourage gender-based insults and abusive language; and developing the advanced technical skills of women and girls so they can steer the creation of new technologies alongside men.

Given the explosive growth of voice assistants, says the report, there is an urgent necessity to help more women and girls cultivate strong digital skills.

Bridging the digital gender gap is an issue for all countries

Today, women are extremely under-represented in teams developing AI tools: women make up only 12 percent of AI researchers, six percent of software developers, and are 13 times less likely to file ICT (information and communication technology) patents.

“Obedient and obliging machines that pretend to be women are entering our homes, cars and offices,” says Saniye Gülser Corat, Director of Gender Equality at UNESCO. “Their hardwired subservience influences how people speak to female voices and models how women respond to requests and express themselves. To change course, we need to pay much closer attention to how, when and whether AI technologies are gendered and, crucially, who is gendering them.”

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Organisations that embed cybersecurity into their business strategy outperform their peers

MD Staff

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Organisations that take a business-driven cybersecurity approach to their digital initiatives achieve better outcomes and outperform their peers, according to PwC’s May 2019 Digital Trust Insights Survey.

The global survey of more than 3,000 executives and IT professionals worldwide found that the top 25% of all respondents – market leaders known as “trailblazers” – are not only leading the way on cybersecurity but also delivering more value and better business outcomes.

Among respondents who say growing revenue is the top value sought from digital transformation efforts, nearly nine in 10 trailblazers say they are getting a payoff that meets or exceeds their expectations (compared to 66% of the other respondents).

Trailblazers are also significantly more optimistic about the potential growth in revenue and profit margin for their companies, with 57% percent expecting revenue to grow by 5% or more, and 53% expecting profit margin to grow by 5% or more.

The survey revealed key demographic information about trailblazers. Many are large companies; 38% of respondents from companies worth at least US$1 billion are trailblazers. The financial services (FS) industry and the technology, media, and telecommunications (TMT) sector are particularly well represented in the leader group. Thirty-three percent of FS respondents and 30% of TMT respondents are trailblazers, compared to roughly a quarter of the survey base in other industries.

Geographically, just 21% of EMEA (Europe, the Middle East and Africa) respondents are trailblazers, compared to 30% in the Americas, and 30% in Asia Pacific.

The leading behaviours that set trailblazers apart from their corporate peers include aligning their  business and cybersecurity strategies, taking a risk-based approach, and coordinating their teams that manage risk. Key findings from PwC’s Digital Trust Insights survey illustrate the edge that trailblazers maintain in all three areas:

Connected on strategy: 65% of trailblazers strongly agree their cybersecurity team is embedded in the business, conversant in the organisation’s business strategy and has a cybersecurity strategy that supports business imperatives (vs. 15% of others)
 

Connected on a risk-based approach: 89% of trailblazers say their cybersecurity teams are consistently involved in managing the risks inherent in the organisation’s business transformation or digital initiatives (vs. 41% of others)

Coordinated in execution: 77% percent of trailblazers strongly agree their cybersecurity team has sufficient interaction with senior leaders to develop an understanding of the company’s risk appetite around core business practices (vs. 22% of others)

“By focusing on building digital trust, trailblazers are driving more proactive, pre-emptive and responsive actions to embed these strategies into the business, as opposed to their peers who primarily look to minimise the operational impacts of cyber threats in reactive manner,” comments TR Kane, PwC US Strategy, Transformation & Risk Leader.

More than eight in 10 trailblazers say they have anticipated a new cyber risk to digital initiatives and managed it before it affected their partners or customers (compared to six in 10 of others).

“Organisations that take a proactive approach to cybersecurity and embed it into every corporate action will be best placed to deliver the advantages of digital transformation, manage related risks and build trust,” adds Grant Waterfall, EMEA Cybersecurity and Privacy Leader, PwC UK.

“Our research highlights the need for organisations to embed their cybersecurity teams within the business to support strategic goals. It’s not just about protecting assets – it’s about being a strategic partner in the organisation,” adds Paul O’Rourke, Asia Pacific Cybersecurity and Privacy Leader, PwC Australia.

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Business in Need of Cyber Rules

Anastasia Tolstukhina

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For more than 20 years, countries have been struggling to introduce a set of rules of conduct and liability requirements for digital space users. Progress in designing a code of cyber conduct is all the more relevant since digitalization is sweeping the planet at breakneck speed, creating new risks along with new opportunities. Businesses that are confronted with new challenges and threats in the digital space are putting forward their own initiatives, thereby pressing governments to speed up the process of adopting an international cyber code.

Why is the business community interested in setting rules in the cyber environment? There are many reasons for this.

Firstly, the quantity and quality of hacker attacks on the private sector increase every year. Hackers target any enterprises — whether they are small enterprises or technological giants. Attacked by the NotPetya virus, the world largest container carrier Maersk sustained $300 million damage and had to shell out nearly $1 billion for restoration. In total, according to Sberbank’s estimates, the damage to the global economy from hacker attacks in 2019 can reach about $2.5 trillion, and by 2022 — as much as $8–10 trillion.

Secondly, many technology-oriented companies, facing a lack of trust on the part of government agencies, experience severe difficulties in promoting their business projects abroad. At present, the UK, Norway, Poland, and other countries are involved in a debate about whether Huawei should be allowed to build fifth-generation mobile communication networks (5G). Huawei is suspected of stealing intellectual property and espionage. The US, Australia, New Zealand have introduced a ban on the use of 5G equipment from Huawei.

Not only Chinese companies face distrust. Google, Apple, Microsoft, Kaspersky Lab, and many others are often accused of illegally spying on people.

Thirdly, IT companies are forced to pay huge sums to protect their customers against hacker attacks and guarantee information security. Microsoft allocates more than $1 billion for this purpose yearly.

In the absence of a political solution to ensure international information security, private companies, which are keen to safeguard themselves and their customers, have chosen to conduct negotiations with each other on information security cooperation and are launching their own initiatives. Thus, coming into existence is a business information security track running parallel to the government.

In February 2017, Microsoft’s President Brad Smith launched the Digital Geneva Convention initiative. The Convention is expected to oblige governments not to take cyber attacks on private sector companies or the critical infrastructure of other states, and not to use hacker attacks to steal intellectual property.

Overall, the document formulates six basic principles of international cybersecurity:

  1. No targeting of tech companies, private sector, or critical infrastructure.
  2. Assist private sector efforts to detect, contain, respond to, and recover from events.
  3. Report vulnerabilities to vendors rather than to stockpile, sell, or exploit them.
  4. Exercise restraint in developing cyber weapons and ensure that any developed are limited, precise, and not reusable.
  5. Commit to non-proliferation activities to cyber weapons.
  6. Limit offensive operation to avoid a mass event.

However, while the Digital Geneva Convention is still on paper, 34 technology companies, including Microsoft, without waiting for decisions at the government level, signed the Cybersecurity Tech Accord in April 2018. Thus, the largest ever group of companies have become committed to protecting customers around the world from cybercriminals.

Cybersecurity Tech Accord members have called for a ban on any agreements on non-disclosure of vulnerabilities between governments and contractors, brokers, or cybersecurity experts; they also call for more funding for vulnerability detection and research.

Besides, signatories of the agreement have come up with a series of recommendations to strengthen confidence-building measures, which are based on the proposals of the UN and OSCE.

Such measures include:

-Develop shared positions and interpretations of key cybersecurity issues and concepts, which will facilitate productive dialogue and enhance mutual understanding of cyberspace and its characteristics.

-Encourage governments to develop and engage in dialogue around cyber warfare doctrines.

-Develop a list of facilities that are off-limits for cyber-attacks, such as nuclear power plants, air traffic control systems, banking sectors, and so forth.

-Establish mechanisms and channels of communication to respond to requests for assistance by another state whose critical infrastructure is subject to malicious ICT acts (organizing, i.e. tabletop exercises).

By now, Cybersecurity Tech Accord has been signed by 90 companies, including Microsoft, Facebook, Cisco, Panasonic, Dell, Hitachi, and others.

Another initiative was presented in 2018 by Siemens, which came up with the Charter of Trust. The Charter, which was signed by 16 companies, including IBM, AIRBUS, NXP, and Total, urges companies to set up strict rules and standards to foster trust in ICT and contribute to further development of digitalization.

Facebook has become part of the process too. In late March 2019, Mark Zuckerberg — the founder and CEO of Facebook — urged governments to become more actively involved in regulating the Internet. In particular, Zuckerberg spoke in favor of introducing new standards related to the Internet and social networks. These standards would come useful to guarantee the protection of personal data, prevent attempts to influence elections or disseminate unwanted information, and would assist in providing a solution to the problem of data portability.

Another initiative worth mentioning is the creation in 2014 of the Industrial Internet Consortium TM, IIC, which was founded on the initiative of AT & T, Cisco, GE, IBM, and Intel. This is a non-profit open-membership group that seeks to remove barriers between different technologies in order to maximize access to big data and promote the integration of physical and digital environment.

Some initiatives are coming from the Russian private sector. In particular, since 2017, Norilsk Nickel has been active on the international scene promoting the Information Security Charter of critical industrial facilities. The Charter’s main provisions include condemnation of the use of ICT for criminal, terrorist, military purposes; supporting efforts to create warning and detection systems, and assist in the aftermath of network attacks; and sharing best practices in information security.

In turn, Sberbank has launched an initiative to hold the world’s largest International Cybersecurity Congress. Last year, such a congress took place with the participation of 681 companies from 51 countries. The second such Congress is scheduled for this June. The Forum serves as an inter-sectoral platform that promotes global dialogue on the most pressing issues of ensuring information security in the context of globalization and digitalization.

Most business initiatives hinge on the fact that they all call for developing confidence-building measures and rules of conduct in the digital space. Besides, the business community welcomes the need to adjust international law to the new realities of the digital economy.

Private sector initiatives can perfectly be streamlined with initiatives put forward by countries within the framework of the UN. After all, by and large, governments pursue the same goals as business in this area. The use of ICT for peaceful purposes, confidence-building measures, the supply of information about vulnerabilities — all this is significant both for business and for most states.

Fortunately, the global discussion under the aegis of the UN on issues related to International Information Security is getting back on track after a pause of about one year. From now on, it will be attended by representatives of the private sector. According to the resolution (A/RES/73/27), the mandate of the future Open-Ended Working Group (OEWG) allows for the possibility of holding inter-session consultative meetings with representatives of businesses, non-governmental organizations and the scientific community to exchange opinions on issues within the group’s mandate. The first inter-sessional meeting with representatives of global business is scheduled for November 2019.

In conclusion, we would like to remark that the issue of information security is dynamic and for this reason, it can be adequately addressed only with the close cooperation of governments and technology companies, since it is the latter that keep pace with the development of technologies and are the drivers of the digital economy. Governments should keep a close eye on the initiatives of non-state actors and put the most useful proposals on the agenda of discussions at international forums. Moreover, once adopted and approved at the government level, these standards and regulations should have a legal force, rather than be recommendatory — this is the only way to guarantee the order in the cyber environment.

First published in our partner RIAC

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