IRIS newsletter 2023-5
European Audiovisual Observatory
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Executive Director: Susanne Nikoltchev
Maja Cappello, Editor • Francisco Javier Cabrera Blázquez, Sophie Valais, Amélie Lacourt, Justine Radel, Deputy Editors (European Audiovisual Observatory)
Documentation/Press Contact: Alison Hindhaugh
Tel.: +33 (0)3 90 21 60 10
Sabine Bouajaja, European Audiovisual Observatory (co-ordination) • Paul Green • Marco Polo Sarl • Nathalie Sturlèse • Brigitte Auel • Erwin Rohwer • Ulrike Welsch
Sabine Bouajaja, European Audiovisual Observatory (co-ordination) • Sophie Valais, Francisco Javier Cabrera Blázquez and Amélie Lacourt• Aurélie Courtinat • Barbara Grokenberger • Glenn Ford • Claire Windsor
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
© 2023 European Audiovisual Observatory, Strasbourg (France)
Three years ago, the Observatory published an IRIS Special titled “Artificial intelligence in the audiovisual sector”. This was a prospective study about the impact that the nascent AI technologies could have in the audiovisual sector. At the time, I wrote in my foreword that AI was likely to herald a paradigm shift, as it can transform the entire value chain but that it could also contribute to the proliferation of “fake news”, and it raises issues regarding users’ right to information, media diversity and pluralism, and data protection, to name but a few.
Three years have elapsed, and so-called generative AI has made the trick of rendering our publication already obsolete from a technological point of view while proving it completely right. As you surely know, services such as ChatGPT are so powerful that they have raised all sorts of fears and concerns, and some of them are reflected in the present newsletter. We cover the investigations currently taking place in three countries (Italy, France and Spain) concerning data protection issues around ChatGPT. Beyond that, two further articles discuss copyright issues around AI in Poland and the US, where the Copyright Office has launched an AI initiative.
Needless to say, beyond our monthly reporting on the IRIS newsletter, AI is such an important issue for the audiovisual industry that we will be working on it in the next months/years to come.
Having said all that, please rest assured, this editorial was not generated by any AI chatbot :-)
Have a nice read!
Maja Cappello, Editor
European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights: Boris Antonov Mitov and others v. Bulgaria
A decision of 28 February 2023 of the European Court of Human Rights (ECtHR) dealt with an interesting claim made by a group of Bulgarian journalists in order to achieve Internet access to all non-anonymised judgments of the Supreme Administrative court, including all scanned documents. The journalists based their claim on the right to freedom of expression and information as guaranteed by Article 10 of the European Convention on Human Rights (ECHR). By a majority decision, the ECtHR declared the application inadmissible on the grounds that it was not for the ECtHR to make abstract pronouncements...
Council of Europe Opinion on Ukrainian new media law
Following the adoption of the draft Law “On the Media” by the Ukrainian Parliament on 13 December 2022 (see IRIS 2023-1/6), the Directorate General of Human Rights and Rule of Law of the Council of Europe (CoE) published an Opinion (based on the expertise of two CoE experts) on the correspondence of the new Law with the EU 2018/1808 Audiovisual Media Services Directive (AVMSD) as well as with CoE standards. The Opinion was prepared within the CoE Project “Safeguarding Freedom of Expression and Freedom of Media in Ukraine”, aimed at supporting the Ukrainian media community...
Global regulators sign joint statement on future regulation of the online sector
On the final day of the UNESCO “Internet for Trust” Global Conference held from 21 to 23 February 2023, the chairpersons of the African Communication Regulation Authorities Network (ACRAN), the European Regulators Group for Audiovisual Media Services (ERGA), the Global Online Safety Regulators Network (GOSRN), the Mediterranean Network of Regulatory Authorities (MNRA), the Platform of Ibero-American Audiovisual Regulators (PRAI) and the Francophone Network of Media Regulators (REFRAM) presented a joint statement outlining key elements of the future regulation of the online sector. Referring...
EU: European Commission
High-Level Group for the Digital Markets Act
On 23 March 2023, the European Commission adopted a Decision on setting up a High-Level Group for the Digital Markets Act (DMA) (see IRIS 2022-5/12). The purpose of the High-Level Group is to provide the Commission with advice and expertise to ensure that the DMA and other sectoral regulations are implemented in a coherent and complementary manner. The DMA will apply from 2 May 2023, and lays down harmonised rules designed to ensure contestable and fair markets in the digital sector where “gatekeepers” are present, which are large digital platforms acting as important gateways between...
EU: European Commission
DSA: first set of Very Large Online Platforms and Search Engines designated by the European Commission
On 25th April 2023, the European Commission adopted its first designation decision under the Digital Services Act (DSA), which entered into force in November 2022. Based on the user data platforms had to publish by 17 February 2023, the Commission designated 17 Very Large Online Platforms (VLOPs) and 2 Very Large Online Search Engines (VLOSEs) that reach at least 45 million monthly active users. The regulation aims at empowering and protecting users online, including minors, by requiring the designated services to assess and mitigate their systemic risks and to...
EU: European Parliament
EMFA: a quick recap of the ongoing legislative process
On 16 September 2022, the European Commission presented a proposal for a regulation establishing a common framework for media services in the internal market (Media Freedom Act — EMFA) (see IRIS 2022-9/3, and the European Audiovisual Observatory note on the proposal for a European media Freedom Act published on 10th January 2023). Since then, the European institutions have started their work with the Audiovisual and Media Working Party (AUDIO) for the Council of the European Union and the Committee on Culture and Education (CULT) for the European Parliament (EP). Looking...
[BG] Draft amendments to the criminal code concerning intellectual property crimes
On 2 March 2023, the Проект на Закон за изменение и допълнение на Наказателния кодекс (draft Act for amendment and supplement to the Criminal Code) was published on the Портала за обществени консултации (Public Consultations Portal). The deadline for public discussion (submission of statements by interested parties) was 3 April 2023. The newly proposed provisions would allow for the prosecution of individuals who create conditions for online piracy. This includes individuals who develop and maintain torrent tracker sites, web platforms, chat groups in applications for online exchange of pirated...
[DE] Radio Bremen Broadcasting Council welcomes ARD reforms and offers suggestions for the future of public broadcasting in Germany
The Rundrunkrat (Broadcasting Council) of Radio Bremen, the smallest of the nine public service broadcasters that make up the Arbeitsgemeinschaft der öffentlich-rechtlichen Rundfunkanstalten der Bundesrepublik Deutschland (German Association of Public Service Broadcasters – ARD), adopted a resolution on the further development of public service broadcasting at its meeting on 16 March 2023. Like Saarländische Rundfunk (Saarland broadcasting corporation), Radio Bremen has been the subject of numerous merger-related discussions and demands. The Rundfunkrat believes it has a duty...
[DE] Broadcasting Commission criticises federal ministry’s proposed ban on high-sugar food advertising
On 27 February 2023, the Bundesministerium für Ernährung und Landwirtschaft (Federal Ministry of Food and Agriculture – BMEL) presented the key elements of a proposed bill prohibiting the advertising of foods with high sugar, fat or salt content. The BMEL’s initiative follows the discovery that food advertising aimed at children very often promotes highly processed foods that contain excessive levels of these ingredients. Excessive consumption of such foods contributes to diet-related diseases (e.g. obesity, diabetes) that have high societal costs. Food advertising has a lasting...
[DE] Draft fourth state media treaty adopted, resulting in new public service broadcasting reforms
On 16 March 2023, the heads of government of the German Länder adopted the draft Vierte Medienänderungsstaatsvertrag (fourth state treaty amending the state media treaty), which includes provisions designed to strengthen compliance, transparency and supervision in public service broadcasting. The proposed amendment of the state media treaty contains standard rules in these areas that will apply to the state broadcasters that comprise the ARD, as well as ZDF and Deutschlandradio. The draft treaty will now be submitted to the state parliaments for preliminary consultation before being...
[ES] Spain initiates pre-investigative proceedings against OpenAI, owner of ChatGPT
On 13 April 2023, the Agencia Española de Protección de Datos (Spanish Data Protection Agency – AEPD) announced the initiation of a pre-investigation procedure against the American company Open AI, owner of the artificial intelligence chatbot prototype ChatGPT. In the view of the national supervisory authority for data protection in Spain, the ChatGPT service could have an impact on the rights of individuals. The announcement is part of an action initiated by the AEPD at the beginning of April. The AEPD had called on the European Data Protection Board (EDPB) to include Chat...
[ES] The Spanish Congress launches the parliamentary processing of the new Cinema and Audiovisual Culture Law
The Spanish Congress of Deputies has given the green light to the processing of the new Cinema and Audiovisual Culture Law on 16 March 2023. This draft law, approved by the Council of Ministers in December 2022, moves forward in the parliamentary process towards its approval after overcoming the overall amendment presented by the far-right party, Vox. Only the deputies of Vox voted in favor of this motion to reject the bill. The deputies of the liberal party Ciudadanos abstained in the vote and the rest of the parliamentary groups supported the continuance of the draft law. This new law (Boletín...
[FI] National measures for the transposition of the DSM Directive in force early April
The Finnish Parliament approved amendments to the Finnish Copyright Act (404/1961, CA) late February 2023, based on the DSM Directive (EU) 2019/790. The amendments entered into force on 3 April 2023. The process was a lengthy one, including a round of critical statements from various stakeholders regarding the draft Government proposal and a renewed preparation subject to complaints about partiality. The Constitutional Law Committee was also consulted during the legislative process and a supplementary Government proposal was drafted. The process exceeded the transposition deadline which also...
[FR] ARCOM warns three pornographic websites to improve age verification mechanisms
While a system for checking the age of users of public online communication services that provide access to pornographic content is currently being trialled in France, the Autorité de régulation de la communication audiovisuelle et numérique (French audiovisual regulator – ARCOM) noted on 3 April 2023 that the websites Heureporno and xHamsterLive simply required users to state that they were adults with a single click in order to access such content, while no age checks at all were carried out by the website Folieporno. The regulator pointed out that simply requiring...
[FR] Bruno Lasserre report recommends relaunching legal tools and rethinking film industry regulation
Commissioned in September 2022 to draft some proposals for modernising regulatory tools in the film industry, Bruno Lasserre, former president of the French Competition Authority, submitted his report to the Ministries of the Economy and Culture on 3 April following numerous meetings with representatives from across the industry. The report follows the framework set out in the letter of assignment, focusing on issues linked to the relationship between cinema operators and distributors, and therefore does not cover the funding of film-making or media chronology. The health crisis and its consequences...
[FR] ChatGPT scrutinised by data protection agencies
On 13 April, the Commission Nationale de l’Informatique et des Libertés (French data protection authority – CNIL) announced that it had opened a “review procedure” to investigate five complaints concerning the artificial intelligence chatbot ChatGPT, including one lodged by MP Eric Bothorel alleging possible breaches of the General Data Protection Regulation (GDPR). Meanwhile, Jean-Noël Barrot, France’s digital minister, called for a more moderate approach, saying that blocking ChatGPT was not the answer and that it would be better “to regulate...
[FR] National Assembly adopts bill defining and regulating influencer marketing
Tabled by MPs Arthur Delaporte (Socialist Party) and Stéphane Vojetta (Renaissance Party), the bill “to regulate influencer marketing and combat abuses by influencers on social networks” was adopted at first reading by the National Assembly on 30 March 2023. The text contains amendments proposed by the Ministry of the Economy based on the conclusions of a report on the regulation of the influencer marketing sector published on 24 March. A code of conduct for influencers and content creators, explaining influencers’ rights and fiscal, social and regulatory obligations, has...
[GB] A first look into the UK’s draft Media Bill
On 29 March 2023, the Department for Culture, Media, and Sport (DCMS) published a draft Media Bill that reforms the regulatory framework for public service broadcasters (PSBs) in the UK. The Bill aims to level the playing field with streaming services and modernise longstanding broadcast legislation to reflect changes in the global media ecology. The Bill is introduced against the background of a “fierce battle to attract and retain audiences” in the broadcast market, with changes to content consumption habits that have put traditional broadcasters “under unprecedented pressure”,...
[GB] Ofcom issues new terms for the BBC’s operating licence to reflect changing habits of viewers and listeners
Ofcom has introduced the BBC’s new operating licence which came into effect on 1 April 2023. The new licence will hold the BBC responsible for delivering its remit, and takes account of innovative ways of distributing content. The licence reflects the changing habits of listeners and viewers, who depend less on linear programme scheduling. Ofcom became the first independent regulator of the BBC under the current BBC Charter and Agreement, which began on 1 January 2017 and will end on 31 December 2027. Ofcom’s power to regulate the BBC is derived from Section 192...
[IT] AGCOM launches the public consultation on video-sharing platforms: more protections for platforms' Italian users
With Resolution no. 76/23/CONS of 16 March 2023, the Italian Communications Authority launched a public consultation on the draft regulation for the implementation of Article 41, paragraph 9, of the legislative decree of 8 November 2021, no. 208 (so-called TUSMA). The regulation will apply to programmes, user-generated videos and audiovisual commercial communications addressed to the Italian public and conveyed by a platform whose supplier is established in another Member State. The consultation will last 30 days from 19 April 2023. In particular, the regulation provides for the removal...
[IT] The Italian Data Protection Authority orders the temporary limitation of the processing activities undertaken by OpenAI LLC in relation to its ChatGPT services in the Italian territory
Through Decision No. 112 of 30 March 2023 (“the Decision”) the Garante per la Protezione dei Dati Personali (Italian Data Protection Authority — “the Authority”) ordered the temporary limitation of the data processing activities carried out in relation to ChatGPT services. The Decision was rendered against U.S. based company OpenAI LLC (“OpenAI”) in its capacity as data controller of the personal data processed through its ChatGPT services. In particular, following vast media coverage of the ChatGPT service over the last few months, and the recent data...
[LV] Amendments to the Copyright Law enter into force in Latvia
On 5 April 2023, amendments to the Copyright Law came into force. With the amendments, the Directive on Copyright in the Digital Single Market (DSM Directive) was transposed into Latvian law, providing for significant changes in copyright regulation, affecting both authors and performers, as well as users of works. Transposition of the DSM Directive Appropriate and proportionate remuneration: One of the most significant changes is the introduction of the principle of appropriate and proportionate remuneration. Namely, it will be necessary to determine a fair remuneration to the author...
[NL] Competition Authority prohibits acquisition of Talpa by RTL
On 3 March 2023, the Autoriteit Consument en Markt (Netherlands Authority for Consumer and Markets — ACM) announced a significant decision, prohibiting RTL’s proposed acquisition of Talpa (see IRIS 2022-3/18). RTL Nederland is a television broadcaster, content producer, and provider of video on-demand services; while Talpa Network is a radio and television broadcaster, operator of various online platforms, and publisher of magazines and games. The ACM decided to prohibit the acquisition, because otherwise “too powerful a party would arise in the Dutch media landscape”. According...
[NL] Dutch regulatory authorities coordinate supervision of online platforms
On 27 March 2023, the Samenwerkingsplatform Digitale Toezichthouders (Digital Supervisory Cooperation Platform — SDT), which is comprised of four major Dutch regulatory authorities, published its first regulatory guidance principles, in relation to online child marketing, and on ensuring effective online transparency. The SDT also announced that it had established a new regulatory Chamber to coordinate supervision under the EU’s recently enacted Digital Services Act. The SDT is an important regulatory cooperation platform established by the Autoriteit Consument & Markt (Netherlands...
[PL] AI as a "creator" under the Polish legal framework
The development of artificial intelligence (in particular, the recently released fourth instalment of the popular ChatGPT) provokes more and more questions related to the copyright protection of "works" for the creation of which AI is responsible, or in the creation of which AI had a significant contribution. In the context of almost open access to generators of images, animations, texts and sometimes music, a number of questions arise, one of which comes to the fore: can AI be considered a creator or co-creator from the perspective of Polish legal regulations? According...
United States of America
[US] Copyright Office launches new artificial intelligence initiative
The Copyright Office is the Federal agency tasked with administering the copyright registration system since 1870, as well as advising Congress, other agencies, and the Federal judiciary on copyright and related matters. Following the recent developments in the Artificial Intelligence (AI) sphere, including the advances in generative AI (a type of AI system capable of generating text, images, or other media in response to prompts), the US Copyright Office received requests from both Congress and members of the public to examine issues raised by copyright in relation to AI. The Office has in...