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14 September 2016

The proposals are published - or at least the Draft Directive. Rumour has it that the plan was to do this in October and the leaks brought the date forward. We are now comparing the official Draft with the leaked draft Draft. We may be some time.

In his State of the Union address today Jean-Claude Juncker, President of the European Commission, was due to say:

As the world goes digital, we also have to empower our artists and creators and protect their works.Artists and creators are our crown jewels. The creation of content is not a hobby. It is a profession. And it is part of our European culture.

I want journalists, publishers and authors to be paid fairly for their work, whether it is made in studios or living rooms, whether it is disseminated offline or online, whether it is published via a copying machine or hyperlinked on the web.

He went on: "The overhaul of Europe's copyright rules we are proposing today does exactly that." We'll see.

Brussels sprouts many leaks

WHATEVER happens between the UK and the EU in the next few years, developments in EU policy are likely to inform Whitehall policy. It's possible that the UK government will agree to comply with future EU rules in return for tariff-free access to the Single Market - the Norwegian model. We don't know, and we don't believe government has the faintest either.

THE EUROPEAN Commission is due to publish plans to change the law on authors' rights and copyright in mid-October. Predictably, there has been a spate of leaks as soon as people returned from their holidays. We hear that these are neither the pristine proposals nor the version the civil servants are currently working on... but they're interesting and disappointing nevertheless.

The proposals are quite modest, and may indeed provide a platform for opposition to the expected efforts by Google, Facebook and company to move UK law in the direction of US copyright law.

Most important for most freelance journalists' rights in our work is a draft text of a Draft Directive. As expected, it does not live up to the pleasing noises made by their bosses the Commissioners (see the July Freelance) on dealing with the unfair contracts imposed on us.

The failure to directly address imposed contract terms and particularly prices is hard to reconcile with another leak, of a Commission Impact Assessment of the planned changes. This repeatedly asserts that payments to authors and performers (including journalists) would automatically rise if the scope of the licences being paid for broadcast use of our work was expanded to the whole EU. This does not match our experience of how broadcasters and (particularly) "independent" producers operate.

The two pro-creator measures in the draft could, however, be interesting. One is to demand transparency of accounting for uses of work - particularly interesting for photographers as well as musicians. The other is for a provision to share "windfall" profits from exploitation of works.

Then there is the crucial question of income that journalists get through collecting societies for use of our works in education. The draft Draft Directive suggests the fairly small change of an "exception" to copyright for use of our work in "illustration" in classrooms (including virtual classrooms). It then leaves it to member states to decide whether to (a) exclude the exception where there is a licensing system in place or (b) compensate journalists or (c) neither. So. if a Directive were passed in this form, journalists' organisations in each member state would have to lobby their government effectively. Option (a) is already in UK law.

There is a proposal for a "neighbouring right" that in theory would allow newspapers to claim money when snippets are used by search engines. It seens at present so badly drafted that it is difficult to be sure of the effect on journalists and other authors.

There is a proposal for EU-wide Extended Collective Licensing (see our definition). This would, it seems, apply to "out-of-commerce" works only. Again, requires deep thought.

Then there's the third leak: a draft Regulation designed to encourage the availability of television programmes across borders. (A Regulation takes effect in every member state as soon as it is agreed by them and passed by the European Parliament. An EU Directive takes effect in a member state only after its parliament has approved a national law.)

This Regulation would, if passed, provide that use of authors' and performers' work online simultaneously and in "catch-up" can only be licensed through collecting societies. This is the present position with cable retransmission.

It may be all very well in practice. All creators whose works are broadcast - including photographers whose stills appear onscreen - will get money through collecting societies that almost none could get individually.

But it'll never work in theory. Some will fear it's a move to all online use being mediated by collecting societies. The NUJ will be consulting with other creators' organisations...

Even more follows here soon when we've re-read everything and understood more.

Last modified: 8 Sep 2016; first posted 1 Sep 2016 - © 2016 contributors
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