Online image search: does France think that the best way to help copyright owners is to deprive them of their rights?

Adding layer after layer: 
always a good idea?

As readers will know, this blog has been following with some passion developments leading to the introduction of new layers of protection - in the form of ancillary rights - over content displayed over the internet, eg through news aggregators. 

Ancillary rights over news content

In 2013 Germany adopted new provisions in its Copyright Act (sections 87f, 87g and 87h) that provide for the exclusive right of press publishers to exploit their contents commercially for one year, thus preventing search engines and news aggregators from displaying non-irrelevant excerpts from newspaper articles without paying a fee. 

As explained here, the German initiative was aimed at recouping some of the revenues that traditional news publishers have lost to the web. The underlying idea was that news aggregators like Google News would not really boost visits to newspaper websites, but rather have a substitution effect. 

A similar rationale prompted Spain to follow the German initiative. In 2014 this country adopted an ancillary right over news content [here and here], with the relevant difference that - unlike the German version - the Spanish ancillary right cannot be waived (Article 32 of the Ley de Propiedad Intelectual). 

Now an initiative of the kind of the German and Spanish ones is being considered for adoption at the EU level. Last December, as a follow-up to its Digital Single Market Strategy [here and here], the EU Commission issued the Communication - Towards a modern, more European copyright framework [here and here] in which, among other things, announced that it would consider "whether any action specific to news aggregators is needed, including intervening on rights". 

As the IPKat reported, according to the Commission's Q&A section accompanying the Communication, all this would be because "[n]ews aggregators ... are not only using hyperlinks but also extracts of articles and may gain revenue doing so."

In all this, France has just entered the debate concerning whether any fee should be paid for indexing content online, though - compared to the above - from a different angle. Debate in France is not about news content, but rather images. 

An odd distortion of copyright law?

Earlier this week, French Senate has passed at first reading (so the story is not over yet) a Bill on freedom of creation, architecture, and cultural heritage.

Among the various initiatives considered, there is also a provision (Article 10-quater) that - if adopted in its current form - would introduce a new Chapter VI in Title III of the Code de la propriété intellectuelle and, with it, also what looks like a fairly unusual arrangement that this is Kat is not sure how it could be classified. 

Basically, [WARNING: this is a Kat-translation from the original French version], the publication of a plastic, graphic or photographic work by an online communication service would entail an assignment [!!!] of one's own right of reproduction and displaying [more technically, right of communication to the public] of such work by search engines to ... collective management organisations (CMOs), appointed to this end by the Minister of Culture. 

Automatic reaction about
automatic assignment of rights

These subjects, ie appointed CMOs, would thus be entitled to: (1) enter and conclude agreements - to last five years - with search engines to authorise the reproduction and displaying of relevant works through their services; and (2) charge the relevant licence fees (to be then re-distributed to the authors or their estates).

Some commentators have called this new proposed arrangement 'an ancillary right for pictures'.

But is it? The scheme appears more that of a forced assignment of existing copyright, rather than the creation of a new right.

Albeit not tremendously fluent in French despite her love for French novels and music, this Kat understands that this proposal may have two main distinct components worth considering further.

An assignment or, rather, an expropriation of one's own property?

First, by not envisaging the possibility for copyright owners to object to such "assignment", this bill seems to entail an expropriation of one's own rights of reproduction and communication to the public, for the sake of search engine referencing and in favour of subjects (appointed CMOs) that would appear free to act even lacking a mandate - whether express or even implied - from (former) relevant copyright owners. 

If this was the case, then questions of compatibility with - among other things - both Article 17(2) of the Charter of Fundamental Rights and the InfoSoc Directive might be raised.

Article 17(2) of the Charter of Fundamental Rights [since the Lisbon Reform Treaty, this has had the same status of EU treaties, ie primary source of EU law] mandates protection of intellectual property as a fundamental right within the right to property. 

There is no need to recall that, as a basic feature of property, "[n]o one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest." 

Can an assignment of exclusive rights in relation to which one appears denied the possibility to object be considered akin to a denial of one's own right to exploit his/her work(s) as he/she pleases?

Is making things harder
to find a real possibility?

In Luksan, the Court of Justice of the European  Union (CJEU) said that a national legislation that denies authors his/her exploitation rights as guaranteed by the InfoSoc Directive would be tantamount to depriving them of lawfully acquired intellectual property, and would be contrary to the Charter as well as the aims of the InfoSoc Directive to provide authors with a high level of protection.

Why paying?

Search engines (which appear as the real addressees of the provision, rather than the more vaguely phrased 'online communication services') would have to obtain a licence to reproduce and display images in search results. 

Would it be realistic to expect that search engines would pay to index and display relevant thumbnails, even of images that are lawfully and freely accessible on third-party websites (including those run by relevant copyright owners)?

This Kat suspects that this may be hardly the case. If so, then in-copyright images might potentially become harder to find if one does not know exactly what is looking for (so that he/she can go directly to the website of interest). Would this make life easier to creators and those who wish to make their work known to broader audiences? This Kat suspects that a measure of this kind could defeat the very purpose of the French bill, ie to incentivise the freedom of creation (la "liberté de la création"). 

It should be clear by now (just think of music and film ...), that making content more difficult to find has hardly done any good to copyright owners and their interests.

À bientôt for further developments ...

[Originally published on The IPKat on 4 March 2016]