CopyrightX: Article 13

Panel Two: Online
Service Providers, Automated Anti-piracy Systems, and Article 13 [like CDA 230,
it may never lose the initial number even if it no longer fits the statutory
numbering]
Moderator: Jennifer
Esch
Giancarlo Frosio:
Copyright and Article 13
Summary of current
provisions.  Automated technology is the intended
effect. Hard to see how that can be done without general monitoring of all
contents of a platform for unlimited times. 
Scarlett court made clear that
fundamental rights are implicated—freedom of information and expression—and automated
technologies are not proportional, especially given that they might jeopardize a
business.  Limitations and exceptions
also need to be accommodated somehow.
Ginka Hristova: The
Effects of EU Article 11 and Article 13
Content ID is the
prime example that people give of how it should be done but Content ID works
badly—it’s not a good model.  [And the
same content owners complain bitterly about Content ID not being good
enough!]  Burden of proof is reversed
from the Electronic Commerce Directive. 
Now platforms will have to prove that they’re making enough efforts to
avoid direct liability.  Collisions
w/GDRP as well.  Especially when determining
whether exceptions and limitations apply, much information will need to be
collected.
Mohammed Iriqat:
Copyright Piracy in the Arab World
Extensive unlicensed
downloading of music, movies, software. 60% of software running in the Arab
world is unlicensed.  Millions of DVDs.  Gov’t institutions and universities participate.  Microsoft Office $5 an unlicensed CD,
compared to $70 authorized price.  $2
billion in calculated economic loss. 
Possible solutions: collective management organizations, but there are
just 5 Arab CMOs and 22 Arab countries. Raise awareness. 95% of Arab citizens
don’t see a problem with illegal downloads. 
Internet laws like DMCA, which are lacking in the Arab world.  Customs authorities: no control over entry of
pirate CDs.  World Cup 2018: Four
countries blockaded Qatar, which had the rights to broadcast; they made sites
to distribute the World Cup w/o authority of the Qatari rightsowner. Intergovernmental
conflict.  Qatar went to WIPO for
arbitration, but WIPO hasn’t made a final decision.
Jordan Gimbel:
Twitch and the Likely Effects of Article 13
Wide spectrum of
online service providers and treatments of unauthorized use/debates w/ different
rightsholders: music, film, gaming.  Twitch
isn’t YouTube or Twitter; has some features but also Patreon-like.  You can live broadcast your gaming.
Streaming could
infringe, but game publishers/developers often license streaming—an attractive
complement to their titles.  Many license
monetization by individual streamers. But we’re not immune from unauthorized
works appearing.  We do see notices for
(1) livestreaming sports; (2) violations of embargo conditions on new games;
(3) user disputes over emotes (users who create designs for the overlay).  Twitch as complement: NBA brought its
G-League (farm team) cames to Twitch, allowing others to costream it (add it to
their own channel with their own overlays). 
NFL selected a few costreamers who could stream it to their own audience
w/their own commentary.
We process DMCA
notices in minutes; suspend live broadcast for 24 hours. For VOD works we mute
the songs—if you create an archive of a live broadcast, we scan & create
audio fingerprints w/Audible Magic and mute portions for matches.  Some rightsholders have priority access—soccer
leagues, game companies—to act w/o needing to send notice.
How does this change
under Art. 17/13?  Obligation to license,
notice and staydown: filters are the only option.  Reference files aren’t available for
livestreams so that’s a challenge. This content is yet to be created.  And the overlays are different digital
assets. We can scan the audio, but scanning images on overlays from multiple
sources are a challenge. Scratching our heads. 
Algorithmic tools are going to be needed; taking $ from other
developments. Open Qs.  Mistakes in
livestreams lead to suspension of channel, which impacts people’s
livelihoods.  Filter’s false positives
are therefore concerning. Crossborder implementation challenges: different
rightsholders across Europe.  GEMA
(German PRO) announced that it thought it should be given a larger negotiating
power on behalf of images as well as music. That’s great, but only for Germany.
Q: what could gov’ts
do/what are the missed opportunities?
Hristova:
implementation legislation.
Q re real people
depicted in games.
Gimbel: US-centric
answer: right of publicity is what’s debated.
Q: where do you get
the filters from? Google?
Gimble: question of
market power.  Content ID has been around
for a while and they’re set on approach. Compliance w/best efforts: we’re
trying to figure out whether that means we can engage in licensing from a
vendor, but may have to develop a filter that maps to your service using your
reference materials. Open Q: does the law require us to build our own tech to
do that because we have a different way in which we serve content, w/overlays
that are different from other services. [One of my biggest questions about all
this is how licensing is going to work for visual works—is there just going to
be a wealth transfer from platforms to the small percentage of visual artists who
are represented by PROs and to the PROs themselves based on the overall “value”
of visual works?  Whereas music really
does have a high percentage of covered material deliberately part of a PRO,
visual works don’t and won’t.]
Terry Fisher: some
suggestions about implementation: make platforms responsible for costs of
wrongful blocking of noninfringing materials in order to incentivize balancing
and use of mechanisms such as arbitration or option system to reduce social
costs of this regime.

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