Freedom of Press or Infosoc Reviewed

Last week I had a brief encounter with two Icelandic ladies who were visiting the European Parliament in the interest of approaching MEPs who may have an interest the current endeavour of Iceland to join the European Union. I, of course, made no delay in asking about the on-going process of implementing the IMMI proposals into the Icelandic legislation. They said they believed the work was well underway within their respective parliamentarian committees and that the proposal was very well-received and that, strangely, it had always seemed a more controversial proposal outside than inside of Iceland.

A related, but still not very, exercise in copyright combinatorics performed by Smári McCarthy, also from Iceland, last year reveals the large number of permissible permutations of copyright exceptions in European harmonized copyright law. This combinatorial adventure reminds me of two things: first, an event organised by my colleague Marielle Gallo in the European Parliament on Friday the 20th of January at which several prominent academics from amongst others IViR and Cambridge U. Faculty of Law and US government WIPO representative John Hughes made contributions as to their views on the European Information Society Directive (2001/29/EC, also Infosoc Directive). The event can be summarized as follows: to the extent that the Infosoc Directive attempted to harmonize copyright legislaton in the Union, which one might come to believe if one considers its alternative name "Copyright Directive", it brutally failed. In many respects the current copyright legislation in Europe, including on a member state level, is far too prohibitive and it would be useful for the European Union to consider a development of the legislation such that a bigger space is left for so called fair use. How to incorporate greater legal uncertainty in exchange for more user freedom over copyrighted works with the French system for creating case law was not addressed (it anyway appears copyright is the only realm in which French courts allow themselves liberties with respect to legislators). There was a slight critique of how the European Court of Justice defines in its caselaw terms like "public", "work" and "broadcasting" despite the original European legal text (the directives) explicitly saying that these limitations are left up to the discretion of member states. And then there was a WIPO representative who, while not contributing much to the general academic air of the debate, certainly well summarized a political copyright maximalism.

Second, a courtcase on media freedom recently settled in Sweden. The copyright of a photograph is not considered the same when published on a webpage as if it had been published in a printed media, according to a recent case against a student magazine with a web edition in the south of Sweden. The Swedish Media Publisher's Association reacted quickly with an analysis where they state that the court, in this case, has made it very clear that a digital publication of a printed edition is considered equal but that in this case they decided that this photograph was used as a "critical publication" (the correct translation evades me, since eur-lex does not respond to calls just now). They also say that this particular exception and its non-extension to digital publications is an effect of a EU directive implemented in Sweden in 2005, and that they have already expressed their concerns with this directive and this specific provision because of the risk of exactly this situation arising. The only directive which fits this particuar description is the... Infosoc Directive 2001/29/EC, also subject of the Copyright Combinatorics linked above!

It anyway reminded me of a similar, but much more difficult to understand, case from Germany's Bundesgerichtshof (highest court, I think?) last year. Photographs of an arts exhibition were allowed in printed media, but not in the digital edition since the digital edition would be used by many more people and over a longer period of time than the "transient publication" that was the printed paper edition.

I saw some calls for technology neutral legislation regarding publications, so that there could be no risk of something being lawful in one medium (say, a paper-based magazine) but not in another (say, the digital version of the exact same magazine). To my best of understanding this has already been proposed within the scope of Swedish government investigation Yttrandefrihetskommittéen but also received with some skepticism. I am currently most favourable to the proposal of simply allowing freedom of press and freedom of expression to always be applied by courts if the court is in doubt whether or not these freedoms can be applied (I think this translates into "if in doubt, pick freedom"). One of the problems with actually rewriting the freedom of press law of Sweden to become technology neutral is that we run the risk of getting other, more arbitrary, ways of defining what constitutes a publication. This could be something like "commercial scope of operations", "fixed publication dates", "a specific number of readers" or similar impractical or discriminatory criteria that could easily exclude some of the online publications that on some sensibility level merit support from freedom of expression laws. In the above mentioned case, it's quite clear that the flaw is anyway in a EU Directive (which strikes higher than Swedish freedom of press?!) so it would not be mitigated by such a change.


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