Five questions about copyright law

Copyright law ceased being a minor issue long ago. Internet users who adapt or share content often run afoul of the law. A copyright law reform that takes new technological possibilities into account is overdue. But what should the reform contain? In part three of the series “Five questions about ...,” futurezone asked the nine parties running in the National Council elections about flat fees, rights of users and artists, and the controversial ancillary copyright for press publishers.

The SPÖ and Greens support a flat fee for content from the Internet. The Pirate Party does not yet have an official position on the issue, and the other parties oppose it. All parties except the the ÖVP and NEOS feel that users must be given additional rights. None of the nine parties want to use the data retention system, which is intended for combating terrorism, to prosecute copyright infringements.

Only the FPÖ answered the question of whether the rights of artists should be strengthened vis-à-vis users, and the answer was a clear “no.” Nearly all parties reject an ancillary copyright for press publishers as has been in effect in Germany since August.

Question 1:Flat fee
Should there be a flat fee for content from the Internet in Austria that will legalize the exchange of files on file sharing networks for non-commercial use, for example?

SPÖ: The non-commercial, everyday use of digital content should be allowed, and should be paid for with a new flat fee. One possibility would be the introduction of new fair-use limits with rules specifying what falls under fair use. Discussions are under way on specifying a concrete flat fee model and the legal changes that need to be made at the national and European level.

Yes, because this is also associated with a right to share and download files.

ÖVP: This demand is unrealistic because this would limit the rights of the copyright holders in this form, it would be difficult to determine the amount of the fee, and the only way to clearly allocate the collected fees would be to monitor everyone’s Internet use. We are strongly against this.

FPÖ: No.

BZÖ: We in the BZÖ feel that the different compensation models must be discussed further with the involvement of the various stakeholders and experts as part of the fundamental modernization of copyright law. Events in Germany have shown how sensitive this issue is. Because of “vague” laws, a punitive industry has sprung up there that hits potential file sharers with claims in the thousands of euros in some cases and that causes serious problems for many families. However, the BZÖ is fundamentally opposed to new fees, for example in the form of a hard disk or broadband tax.

Greens: Instead of the broadcasting tax, a household tax should be collected, part of which is used to compensate copyright holders. The actions of many people on the Internet who knowingly or unknowingly infringe on copyrights would be made legal, and the exchange of copyrighted works for non-commercial use would be decriminalized.

KPÖ: No, this must not be allowed to happen. The KPÖ strongly opposes such fees because they primarily serve to boost the profits of the entertainment industry.

NEOS: No, we are fundamentally opposed to the introduction of new taxes. And how do you justify collecting such a tax from people who do not share files?

Pirates: The Austrian Pirate Party does not yet have an official position on a flat fee under the current system of copyright law. However, the Austrian Pirate Party is seeking a fundamental reform of copyright law. This reform should account for new developments in the area of the digital media and should ensure that the rights of the creators are satisfied while distributors are treated separately under a new system of laws: author’s exploitation rights. We have to correct the imbalance that has arisen between creators, distributors and consumers over the past years.

This reform should rework the rights laid down in copyright laws, which today are primarily claimed by distributors instead of by creators. We could only support a flat fee when the distribution of the funds to artists and creators was determined by the people paying the tax themselves, and not by murky organizations and distribution formulas. We think that models like the cultural value approach of the Chaos Computer Club or the Internet schilling concept that is currently being developed should be pursued.

Team Stronach: No.

Question 2: The data retention system and copyright infringements
Should copyright holders be given access to the data that must currently be saved under the data retention laws for the prosecution of copyright infringements?

SPÖ: No. This is not only disproportionate, but is also clearly not covered by the intention of the data retention directive.

ÖVP: Minister of Justice Beatrix Karl already answered this question with a clear “no.” This will not change after the elections.

FPÖ: No.

BZÖ: The BZÖ feels that data stored under this system may only be accessed on the basis of a court order.

Greens: No. Data retention is a serious privacy violation. For this reason, we strongly oppose access to this data, including for copyright holders. The Greens played a key role in the class action suit filed against data retention with the constitutional court.

KPÖ: The KPÖ is generally opposed to data retention as preventative suspicion. No, companies may not be given access to personal information.

NEOS: No – we are also opposed to data retention in and of itself.

Pirates: No. As we have already stated, the Austrian Pirate Party demands the immediate abolishment of data retention. The data collected until this is done may not be shared. The government must not pass personal information on to the private sector, which also includes copyright holders, under any circumstances. No price can be put on privacy, and privacy may only be violated in cases of extreme emergency – a court order and supervision must be binding.

Team Stronach: No.

Question 3: Fair use
Should the right to use content on the Internet for private purposes, for example on a private homepage, in Facebook profiles or in YouTube videos, be expanded according to the American fair use principle?

SPÖ: Principally, yes. In practical terms, it will not be possible to apply the American fair use model because of the differences in the legal systems, and the system should be combined with a flat fee in any case. Activities that fall under transformative use – brief samples and collages with no commercial intent or compensation – must be legally clarified and permitted under corresponding models (licensing obligation, flat fees, etc.). The rules made for this should provide the greatest possible degree of legal certainty for consumers so that consumers and copyright law can go their separate ways in peace.

ÖVP: It is not possible to answer this question with a simple “yes” or “no.” For example, when a user shares copyrighted material on Facebook for private purposes, the number of beneficiaries is not limited. What is the difference between “private” and “commercial” when the material is provided to millions of recipients at no charge? “Purely private” use must of course be assessed less dogmatically than it is now. A general fair use system would go too far.

FPÖ: We could imagine a system based on the fair use principle. But it would have to be worked out in detail.

BZÖ: This issue must be dealt with as part of an overall reform of various factors, especially copyright law, because this is based on the same fundamental questions. In any case, we feel that consumer interests may not be neglected, but we also reject the idea that everything on the Internet should be free. We think that the fair use principle is something that is definitely worth considering.

Greens: The right to use Internet content for private purposes should be expanded. But the Greens prefer a system that guarantees legal certainty for users.

KPÖ: We welcome everything that prevents or reduces limitations on the use of the Internet. Fair use allows the limited private use of content from the Internet without the permission of the creator. That is a start, at least.

NEOS: No – it is not possible to clearly differentiate between private and commercial use in many cases. Use on Facebook and Youtube is a commercial aspect for Facebook and Google in any case.

Pirates: Yes. To provide for a certain level of practicality in the use of parts of copyrighted material, the Austrian Pirate Party demands increased rights for private copies and the appropriate ability to use parts of copyrighted materials. Therefore, we support the reform of the copyright laws from their current state towards fair use in the sense of Article 107 of the US Copyright Act and beyond.

Team Stronach: Yes.

Question 4: Copyright contract law
Should the rights of artists and creators be strengthened vis-à-vis distributors through copyright contract law?

SPÖ: Yes. Copyright contract law would be a crucial aspect of protecting the rights of creators. It should give the creator better protection vis-à-vis his contract partner (the distributor) than is currently provided for in Austria.

ÖVP: This can only be determined after the issue is discussed in detail.

FPÖ: No.

BZÖ: The BZÖ generally supports the strengthening of the negotiating position of artists and creators vis-à-vis the distribution industry. The introduction of copyright contract law with this objective is absolutely worth considering.

Greens: Yes. The introduction of a modern system of copyright contract law is one of the central aspects of copyright law reform.

KPÖ: Absolutely, creativity must be promoted, and not industry profits.

NEOS: Yes.

Pirates: Yes. The Pirate Party wishes to reduce the dependence of culture creators on the distribution industry. Copyright contract law is a suitable means for achieving this; in addition, a new advisory office should provide information about alternative distribution and marketing models, help with using them (including the direct subsidization of measures such as crowdfunding, print on demand and the like), develop templates for publishing contracts and assist culture creators in negotiations with commercial distributors at no charge.

Team Stronach: Yes.

Question 5: Ancillary copyright
Ancillary copyright for press publishers went into effect in Germany on August 1. Should such an ancillary copyright also be introduced in Austria?

SPÖ: No. Ancillary copyright causes more problems than it solves. It has been sharply criticized in Germany since its introduction – rightfully so – and causes additional legal uncertainty for bloggers and small publishers. No.

ÖVP: The ancillary copyright law that was introduced in Germany has already failed. Because numerous publishers have already approved use by Google, so nothing has changed for them. As we have defined in our campaign platform, we support stronger rights for creators and publishers vis-à-vis major international corporations. Germany’s “shot from the hip” ancillary copyright law has already proven to be unsuitable for this purpose.

FPÖ: No.

BZÖ: The development of legal regulations has barely kept pace with the rapid development of the Internet. A variety of new questions has come up that need to be discussed in detail. Small improvements are being made on a regular basis right now, but no comprehensive reforms, especially of copyright law, are being initiated. Ancillary copyright for press publishers must also be discussed in this context. The goal must be to achieve a fair balance of interests that protects consumers and creators. It seems sensible to take the experiences from Germany into account, and to wait for further developments before deciding on ancillary copyright in Austria.

Greens: No. The ancillary copyright law that was passed in Germany is a prime example of poor lawmaking. Press publishers already enjoy sufficient protection under the copyright laws. Every publisher is free to publish its content on the Internet, and no one is obligated to allow search engines to catalog their texts. Indexing can be prohibited at any time.

KPÖ: No, free content must remain free. Changing the system so that text passages can only be included on your own site against payment will weaken publishers and press products, which are also dependent on reciprocal linking. Such an ancillary copyright has also not yet been defined clearly enough, and does not strengthen the position of publishers or authors in its current form, and the KPÖ is opposed to this.

NEOS: This ancillary copyright is tailored to major providers like Google. We must watch and see if these rules create additional uncertainty.

Pirates: Ancillary copyright is problematic for a number of reasons: It creates legal uncertainty; RSS aggregators fall into a gray area; a payment system could result in massive red tape; verification is impossible; smaller service providers will be put at a major disadvantage; and much more. Many publishers in Germany, including Axel Springer, have allowed Google to continue using their content free of charge for Google News for the time being, subject to revocation. But for small, innovative Internet service providers and aggregators, ancillary copyright represents and incalculable risk for the future.

We would like to quote Bruno Kramm, Bavarian Pirate Party Bundestag candidate in Germany: “Press publishers can now freely decide who can list press excerpts and who can’t. The ancillary copyright fits in seamlessly with the other copyright debacles adopted by the black/yellow coalition and will hamper innovation. Ancillary copyright is a perfect acquisition argument for Springer against smaller market participants in its digital strategy.” For this reason, the Austrian Pirate Party strongly opposes such an ancillary copyright law.

Team Stronach: No.