Why Article 11 of the Directive is not a good solution
For all of us who were curious about the outcomes of a possible new ancillary copyright for press publishers, we need look no further.
As it happens, Germany adopted a “model scale” of the new right in 2013 aimed specifically against web search engines, granting press publishers with an exclusive right to make the press product or parts thereof available to the public for commercial purposes, unless the use consists of individual words or very short text excerpts. Sounds familiar? The EU is about to introduce the same right in Article 11 of the new DSM Directive. Without some major adjustments to the provision that might not be such a good idea, considering the effect the right has had in Germany – even though the court is leaning to rule in favour of the collecting society VG Media, who is suing Google for remuneration based on the new right, Google will not go down without a fight, threatening press publishers with de-listing them, if they would not grant free usage rights to Google. This behaviour has earned Google a separate lawsuit for abuse of a dominant position, which was rejected by Landgericht Berlin denying any abuse by Google, the case is currently pending before the Court of Appeal in Berlin.
The entire conundrum just goes to show, that imposing a link-tax on news aggregators, might result in big news market players getting away without repercussions, and smaller press content providers getting stuck with the bill. Even scientific studies show, why the new ancillary right might not be a good solution.
Also, info for any member state wishing to adopt similar provisions on a national level: AG Hogan recently delivered an opinion that such provisions must be notified to the Commission beforehand.
On 23rd of November, 2021, the European Commission has published two reports in the field of copyright, as required by Directives 2014/26/EU (CRM Directive) and 2019/790 (DSM Directive). They are supported by two studies: Study on emerging issues on collective licensing management in the digital environment, and Study on selected issues relating to the application of the CRM Directive.
A new book “Law and Artificial Intelligence: Issues of Ethics, Human Rights and Social Harm” was published (Institute of Criminology at the Faculty of law in Ljubljana, 2021), the editors of which are prof. dr. Aleš Završnik and dr. Katja Simončič. The author of one of the articles is also dr. Maja Bogataj Jančič, LL.M., LL.M., who wrote an article on the topic of whether artificial intelligence can be an author of a copyright work.
Jožef Štefan Institute is organising GO-DIP workshop series, first of them coming on November 19th, 2021 is revolving around software IP and data agreements. The GO-DIP project aims to increase the competencies of knowledge generators and intermediaries. At 15.10 dr. Maja Bogataj Jančič, LL.M., LL.M. will be lecturing in the Workshop: Development of a checklist for model digital IP agreements. Welcome!
2nd GPAI Summit will occur from 11-12 November, 2021 in Paris, France. Leading international AI experts from civil society, academia, industry and governments, including ministerial-level delegates from GPAI’s Membership, will come together for GPAI’s annual event. This public-facing event will include reporting on the ten Working Groups’ study topics, including the reporting of Data Governance Working Group (DG WG). Public conferences will be broadcasted live on GPAI’s Youtube channel. Welcome!