2018年6月25日 星期一

互聯網收緊的全球趨勢




若果大家記得2014年的版權條例修訂,你會記得鍵盤戰士要包圍立法會。筆者當年看過了該修訂,筆者的基本意見寫在2014年版權(修訂)條例草案》《版權(修訂)條例草案》中的「個人用戶衍生內容」從《版權(修訂)條例草案》看“一國兩制”的內在矛盾,筆者的基本意見是這不是一條惡法。
現在歐盟議會將於745日對《統一的數字市場的版權指令》投票,若能通過,各國需將其加入本地法律,當中的第11條和13條激起爭議。第11條基本上要求引用者付給版權持有人一個合理的費用 ( link tax);第13條基本上要求  facebook, google ,utube 第大型和大量轉載的網站負起追蹤侵權行為。所以,香港未來的版權條例修訂有可能比之前的更嚴苛。
從全球趨勢看,互聯網的監管走向加強,而有爭議藥物的監管走向放寬,如加拿大成為首個大麻完全合法化的七國集團(G7)大國,通過立法規管消閒大麻。因而香港正討論的電子煙問題比表面的複雜。
這兩極化有一個共通原因 ── 錢。互聯網經濟和娛樂相關經濟十分大,製作成本很高,互聯網很方便侵權,因此,資本一定要做這方面收緊,歐盟預計互聯網的經濟增幅比其他的快七倍,數碼單一市場會為歐盟每年帶來4,150億歐元。爭議藥物則五花百門,越難越禁止,新技科不斷發明新的,對人體有害的商品(例如美容),這部份的潛在經濟利益也很大,與其流入黑市市場,不如自已撈埋,因此,這方面趨勢必然放寬。由之,我們都是資本的奴隸,馬克思沒有錯。

Copyright in the Digital Single Market

立法原意

由於互聯網必然跨地緣,意味著版權法超越國界,歐盟在2015年提出立法,旨在“減少各國之間的版權制度差異,從而方便歐盟作品發表和用戶使用”(註一)。雖然,如何豁免屬本地立法範疇,歐盟認為在三點上需要豁免:
1.      教育領域的數字和跨境應用;
2.      科學研究領域的文本和數據挖掘;
3.      保護文化遺產。
新指引的豁免主要在非商業用途  (out-of-commerce)  的數字內容。它重視公平共享 ( fair share ),指引平衡作者、版權持有人和內容發行人的權利。它也注意到新聞網站或內容網站保護其版權的重要性,因這關乎新聞自由。
Press publishers are facing difficulties in licensing their publications online and obtaining a fair share of the value they generate. This could ultimately affect citizens' access to information.

總的來說,新指引是互聯網在版權上的新的收費方式。

基本權利

指引的基本權利基本上為二:
第一,根據歐盟的“基本權利憲章”第17條,保護作者、表演者以及版權持有人的討價還價的地位,在一定程度上減少版權持有人對公眾利益的壟斷,保障受教育權利和文化多樣性;
第二,根據憲章第16條和第11條,盡量減少對資訊自由、業務自由和言論自由的負面影響。

第十一條

《第1條所述的權利應完整保留,不得影響作者和其他版權擁有人在聯盟法規定的關於出版物中所包含的作品和其他主題的任何權利。當作者和版權擁有人的作品或其部份內容被引用時,不得妨礙作者和擁有版權者援引這些權利,尤其不得妨礙他們向摘錄其內容的網主索取報酬的權利。》
歐盟的版權期為20年,這條保障出版物的版權不會在網上被摘錄( snippets )。它被反對者稱為 link tax,但個人在社交媒體分享新聞的習慣並不受限制,其關鍵是“ communication to the public”

第十三條

此條要求國際互聯網平台以合理和合乎比例的措施保讓版權持有人的利益。
《為公眾提供大量上傳的服務供應商應與版權持有人合作,採取措施確保他們的權利受到保護,服務提供商需要阻止可能的侵權行為。 這些措施包括有效的內容識別技術,識別技術應是適當和相稱的。 服務提供者應向版權持有人解釋,有關措施為何和如何有效,它亦有責任向版權持有人滙報其運作情況。》

反對意見

歐洲議會議員Julia Reda反對第11條和第13條。她的意見被廣泛引用。她在她的網站上寫道:“這不是一個歐洲範圍的法律,我們有28個成員國各自在本土立法:服務供應商為了避免被起訴,國際互聯網平台將被迫遵守最嚴厲的版本。”(註五)
Member of European Parliament Julia Reda is firmly opposed to Article 11 and 13. She recently wrote on her website: “Instead of one Europe-wide law, we’d have 28, with the most extreme becoming the de-facto standard: To avoid being sued, international internet platforms would be motivated to comply with the strictest version implemented by any member state.”

反對者關注

反對者關注(註六)的是流行在網絡上的搞笑活動會被禁制或追討版權費,例如惡作戲改圖 (memes),如果被改的圖片屬某個新聞網站的專有;例如,混音和混搭的藝術二次創作(Remixes and mashups ),若使用了媒體公司的音樂影片;例如,有時限性的政治宣傳短片(pee tape) ,它可能被策略性地控以侵權,被服務供應商下架,而錯過了大選日期。

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備註

註一

Reasons for and objectives of the proposal

The evolution of digital technologies has changed the way works and other protected subject-matter are created, produced, distributed and exploited. New uses have emerged as well as new actors and new business models. In the digital environment, cross-border uses have also intensified and new opportunities for consumers to access copyright-protected content have materialised. Even though the objectives and principles laid down by the EU copyright framework remain sound, there is a need to adapt it to these new realities. Intervention at EU level is also needed to avoid fragmentation in the internal market. Against this background, the Digital Single Market Strategy  adopted in May 2015 identified the need “to reduce the differences between national copyright regimes and allow for wider online access to works by users across the EU”. This Communication highlighted the importance to enhance cross-border access to copyright-protected content services, facilitate new uses in the fields of research and education, and clarify the role of online services in the distribution of works and other subject-matter. In December 2015, the Commission issued a Communication ‘Towards a modern, more European copyright framework’  . This Communication outlined targeted actions and a long-term vision to modernise EU copyright rules. This proposal is one of the measures aiming at addressing specific issues identified in that Communication.

Exceptions and limitations to copyright and neighbouring rights are harmonised at EU level. Some of these exceptions aim at achieving public policy objectives, such as research or education. However, as new types of uses have recently emerged, it remains uncertain whether these exceptions are still adapted to achieve a fair balance between the rights and interests of authors and other rightholders on the one hand, and of users on the other. In addition, these exceptions remain national and legal certainty around cross-border uses is not guaranteed. In this context, the Commission has identified three areas of intervention:
digital and cross-border uses in the field of education,
 text and data mining in the field of scientific research,
 and preservation of cultural heritage.
The objective is to guarantee the legality of certain types of uses in these fields, including across borders. As a result of a modernised framework of exceptions and limitations, researchers will benefit from a clearer legal space to use innovative text and data mining research tools, teachers and students will be able to take full advantage of digital technologies at all levels of education and cultural heritage institutions (i.e. publicly accessible libraries or museums, archives or film or audio heritage institutions) will be supported in their efforts to preserve the cultural heritage, to the ultimate advantage of EU citizens.

Despite the fact that digital technologies should facilitate cross-border access to works and other subject-matter, obstacles remain, in particular for uses and works where clearance of rights is complex. This is the case for cultural heritage institutions wanting to provide online access, including across borders, to out-of-commerce works contained in their catalogues. As a consequence of these obstacles European citizens miss opportunities to access cultural heritage. The proposal addresses these problems by introducing a specific mechanism to facilitate the conclusion of licences for the dissemination of out-of-commerce works by cultural heritage institutions. As regards audiovisual works, despite the growing importance of video-on-demand platforms, EU audiovisual works only constitute one third of works available to consumers on those platforms. Again, this lack of availability partly derives from a complex clearance process. This proposal provides for measures aiming at facilitating the licensing and clearance of rights process. This would ultimately facilitate consumers' cross-border access to copyright-protected content.

Evolution of digital technologies has led to the emergence of new business models and reinforced the role of the Internet as the main marketplace for the distribution and access to copyright-protected content. In this new framework, rightholders face difficulties when seeking to license their rights and be remunerated for the online distribution of their works. This could put at risk the development of European creativity and production of creative content. It is therefore necessary to guarantee that authors and rightholders receive a fair share of the value that is generated by the use of their works and other subject-matter. Against this background, this proposal provides for measures aiming at improving the position of rightholders to negotiate and be remunerated for the exploitation of their content by online services giving access to user-uploaded content. A fair sharing of value is also necessary to ensure the sustainability of the press publications sector. Press publishers are facing difficulties in licensing their publications online and obtaining a fair share of the value they generate. This could ultimately affect citizens' access to information. This proposal provides for a new right for press publishers aiming at facilitating online licensing of their publications, the recoupment of their investment and the enforcement of their rights. It also addresses existing legal uncertainty as regards the possibility for all publishers to receive a share in the compensation for uses of works under an exception. Finally, authors and performers often have a weak bargaining position in their contractual relationships, when licensing their rights. In addition, transparency on the revenues generated by the use of their works or performances often remains limited. This ultimately affects the remuneration of the authors and performers. This proposal includes measures to improve transparency and better balanced contractual relationships between authors and performers and those to whom they assign their rights. Overall, the measures proposed in title IV of the proposal aiming at achieving a well-functioning market place for copyright are expected to have in the medium term a positive impact on the production and availability of content and on media pluralism, to the ultimate benefit of consumers.

註二

Fundamental rights
By improving the bargaining position of authors and performers and the control rightholders have on the use of their copyright-protected content, the proposal will have a positive impact on copyright as a property right, protected under Article 17 of the Charter of Fundamental Rights of the European Union (‘the Charter’). This positive impact will be reinforced by the measures to improve licensing practices, and ultimately rightholders' revenues. New exceptions that reduce to some extent the rightholders' monopoly are justified by other public interest objectives. These exceptions are likely to have a positive impact on the right to education and on cultural diversity. Finally, the Directive has a limited impact on the freedom to conduct a business and on the freedom of expression and information, as recognised respectively by Articles 16 and 11 of the Charter, due to the mitigation measures put in place and a balanced approach to the obligations set on the relevant stakeholders.

註三

Article 11

Protection of press publications concerning digital uses

1.Member States shall provide publishers of press publications with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC for the digital use of their press publications.
2.The rights referred to in paragraph 1 shall leave intact and shall in no way affect any rights provided for in Union law to authors and other rightholders, in respect of the works and other subject-matter incorporated in a press publication. Such rights may not be invoked against those authors and other rightholders and, in particular, may not deprive them of their right to exploit their works and other subject-matter independently from the press publication in which they are incorporated.
3.Articles 5 to 8 of Directive 2001/29/EC and Directive 2012/28/EU shall apply mutatis mutandis in respect of the rights referred to in paragraph 1.
4.The rights referred to in paragraph 1 shall expire 20 years after the publication of the press publication. This term shall be calculated from the first day of January of the year following the date of publication.

註四

CHAPTER 2
Certain uses of protected content by online services

Article 13
Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users
1.Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. The service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other subject-matter.
2.Member States shall ensure that the service providers referred to in paragraph 1 put in place complaints and redress mechanisms that are available to users in case of disputes over the application of the measures referred to in paragraph 1.
3.Member States shall facilitate, where appropriate, the cooperation between the information society service providers and rightholders through stakeholder dialogues to define best practices, such as appropriate and proportionate content recognition technologies, taking into account, among others, the nature of the services, the availability of the technologies and their effectiveness in light of technological developments.

註五

評論

Commentary

https://gizmodo.com/the-end-of-all-thats-good-and-pure-about-the-internet-1826963763
We regret to inform you that the internet is on red alert once again. On Wednesday, the EU’s Legislative Committee voted to adopt sweeping measures that will upend the web in every way that we know it. Memes, news, Wikipedia, art, privacy, and the creative side of fandom are all at risk of being destroyed or kneecapped.

By the time Americans woke up on Wednesday, the Legislative Committee had voted on the final form of the EU Copyright Directive—the first major update to European copyright law since 2001. Much of what’s in the legislation has been met with approval, but Article 11 and Article 13 are considered disastrous by some of the foremost tech experts in the world.

Explaining what’s wrong with these two points of the legislation in detail is difficult because the articles themselves are so vague. That’s the primary issue for critics. Both articles make unprecedented demands on anyone operating a popular website to monitor copyrighted material and to pay fees to news organizations when linking out to their articles. Defenders of the plan say that critics are exaggerating because of assumptions they’re making about how the legislation will be implemented. Critics, like one of the “fathers of the internet,” Vint Cerf, and the inventor of the World Wide Web, Tim Berners-Lee, say the risks outweigh the benefits. Who are you going to believe?

Let’s take a look at what’s at stake with these new forthcoming regulations:

Article 13
This section of the directive will completely reconfigure websites’ responsibilities when it comes to enforcing copyrights. Until now, the so-called Ecommerce Directive has given online platforms broad protection from being subject to copyright penalties when they simply acted as a conduit for user uploads. It’s very similar to the laws in the U.S. that exempt YouTube from penalties as long as its making its best effort to take down infringing material when it’s reported. YouTube uses an automated content recognition system combined with an army of human beings to review the material users’ upload. It costs the company millions of dollars to do this. Critics of Article 13 say that every popular platform—estimated to mean the top 20 percent—that allows users to post text, sounds, code, still or moving images will need one of these systems.

Last week, 70 of the most influential people in the field of technology signed a letter opposing Article 13. Pioneers like Cerf and Berners-Lee were joined by experts in virtually every facet of the online world to say that the legislation would harm freedom of speech, education, expression, and small businesses while giving major platforms that already heavily monitor their service a distinct advantage.

Activist, author, and special advisor for the Electronic Freedom Foundation, Cory Doctorow has written extensively about the potential implications of Article 13 since it became a crisis in the last few months. He told Gizmodo over the phone that as it’s written, the legislation will cost “hundreds of millions” of dollars in penalties for platforms that can’t handle monitoring, and he’s confident that companies like Google and Facebook will be the only ones that can survive.

The big question around Article 13 is its vague requirement that websites use “appropriate” measures to prevent copyrighted material from ever appearing on their service. It suggests “effective content recognition technologies” be used several times without explaining what that means, how it would work, how claims would be filed, or anything practical. For critics like Doctorow, the natural conclusion is that big platforms will use their own system and some sort of centralized system will be required for the rest. Because there’s no outline of how such a system would work, there are no penalties for people who falsely claim ownership over the content. In the event that someone uploads a claim over the complete works of Shakespeare—which is in the public domain—a platform would have to individually decide if that claim is worth taking a risk and allowing someone else to quote a sonnet by the bard. If the platform doesn’t want to take the risk, someone fighting a copyright claim would have to go to court.

As we see all the time, algorithms by the richest companies in the world are terrible at doing their jobs. This week, we saw YouTube blocking educational videos from MIT and the Blender Foundation because they were erroneously flagged by its piracy filters. In the past, we’ve seen bullshit piracy claims over white noise and birds chirping.

Also, what’s possibly the most important problem with Article 13 is that it makes no exceptions for fair use, a foundation of the internet an essential caveat in the law that allows people to remix copyrighted works.

Article 11
Article 11 has been variously called the link tax or the snippet tax. Designed to mitigate the power over publishers that Google and Facebook have amassed in the last decade, it codifies a new copyright rule for linking to news organizations and quoting text from their stories. Online platforms will have to pay for a license to link out to news publishers, and this will theoretically help support organizations that are vital for public information and drive users to their homepages.

That all sounds decent in principle, but Article 11 doesn’t bother to even define what constitutes a link. Details will be left to the 28 individual countries in the EU to figure that out. That opens the door for political abuse of how news is spread in each country, and it will likely have the opposite of its intended effect.

Google can afford a license, there’s no guarantee smaller organizations can. Member of European Parliament Julia Reda is firmly opposed to Article 11 and 13. She recently wrote on her website: “Instead of one Europe-wide law, we’d have 28, with the most extreme becoming the de-facto standard: To avoid being sued, international internet platforms would be motivated to comply with the strictest version implemented by any member state.” In response to her MEP counterpart Alex Voss’s defense of Article 11, Reda gave The Next Web an illustration of how the differences between countries could play out:

The sentence ‘Angela Merkel meets Theresa May,’ which could be a headline of a news article, cannot be protected by copyright, because it is a mere statement of fact and not an original creation. Mr. Voss said repeatedly that he wants these purely factual statements to be covered by Article 11, that the protection granted to press publishers will therefore be much broader than even what the journalists themselves get.

Reda also pointed out that egregious sampling or wholesale theft of news content is already illegal under current copyright law. There’s no reason to believe that Facebook with its fancy link license will ever face penalties for users posting an entire article on their wall. But when Facebook decides it doesn’t like your particular political point of view, it’ll be a lot harder for you to start a small platform and express it.

The consequences of Article 11 and Article 13 remain a matter of speculation, but the nature of the legislation—both its design and its vagueness that makes it ripe for abuse—make it all but inevitable that they will leave the internet torn and tattered in its wake. Here are some likely victims.

註六

Memes

Even if you think that people who pirate music should be executed and all news organizations are the devil, you probably like memes. Well, whoever took a picture of that one guy looking at that one girl instead of the other girl, will be having a field day running around filing complaints against any platform that uses it without permission. Just kidding, that guy sold the photo to iStock, a subsidiary of photo-licensing giant Getty Images. No fair use means you’ll have to go shoot your own photo to caption and make it clear that anyone is allowed to further caption it in the pursuit of creating a meme.

Artists

Remixes and mashups are fucked. Any artist that relies on fair use to make transformative works is fucked. And the Metallica’s of the world who love running around policing where their work will have platforms, and their grunts making sure to pull down that birthday party video of you and your friends just trying to have a good time while some song was on the radio. Are you wearing a Rick and Morty shirt in that perfect profile pic? Sorry, the stupid algorithm flagged it, and now it’s gone.

Politics

Aside from the potential of individual countries in the EU to decide what is and isn’t news, copyright claims could be used to suppress material for political purposes. Doctorow gave us the example of a politically sensitive video uploaded to a platform just days before an election. Let’s call it the pee tape. If the target of the pee tape were to know it was about to be released, it could be uploaded to a content monitoring platform with a copyright claim lying in wait. The censorship filters would catch it before it was seen by the public, and the election could come and go while a legal fight plays out behind the scenes.

There’s also the issue of surveillance. We already accept that companies like Facebook hire people to comb through our shit while trying to identify infringing content. The EU is trying to force many more companies to deputize a bunch of sleuths, human and algorithmic, expand this shadow surveillance state that monitors everything we post on these platforms. As Doctorow put it to us, “Any kind of censorship in the modern age is surveillance.”

Etc.
There are numerous other bad implications that have been flagged by activists, academics, human rights groups, and online businesses. We didn’t even discuss Article 3, which has artificial intelligence startups sweating bullets. I’d urge you to call your representatives, but we mostly serve an audience in the U.S, where we largely lack the power to force lawmakers’ hands. We don’t know if this will have the ripple effects we’ve seen with the GDPR privacy rules that are slowly being picked up as the global standard. But Doctorow told us that implementation of the copyright directive adopted on Wednesday will be just like GDPR’s chaotic rollout last month. “Everyone is going to forget about it” during the waiting period before the law is implemented, “and in two years they’re going to wake up and say holy shit!”



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