Copyright policy needs a new home

Over the last two years the Commission has been conducting a review of the EU copyright rules and it appears – based on a leaked draft of a White Paper – that the official conclusion of this review will be that the rules are largely adequate and only require a bit of fine-tuning and some more harmonization across Europe. Against this background it is very difficult to not read Kroes’ speech as a message that from her point of view this conclusion is unacceptable and that Europe and its citizens are better off without the the current Commission cementing the status quo via a policy document at the end of its term:

Things need to change in Europe and they need to change right now. It’s obvious, as other parts of the world have already seen.

In 2009, Japan introduced a copyright exception covering text and data mining: including for commercial use.

In Canada in 2012, they added an exception for non-commercial user-generated content.

In none of those places has the sky fallen in. All of those places are now innovating, creating, progressing, while the EU lumbers by with an ageing system for an analogue age.

Sometimes it is hard to find the middle ground between different principles, to fairly balance different interests.

Not in this case – the solution is already staring us in the face. It doesn’t even have to be about principles – it’s about aligning with current practices, with what most people are already doing. These opportunities should not just be available to those who can afford expensive lawyers, or are prepared to ignore the law all together. They should be for everyone.

At the least, at the very least, that is what the law can do: follow current practice. At a minimum.

Here in the EU we have done preparatory work, dialogues, public consultations, legal and economic studies. We have endlessly assessed, examined, analysed. Now it’s time to act. […]

What does pragmatic reform mean? It means more possibilities to access content online cross-border. It means more harmonised exceptions: benefiting researchers, teachers, cultural heritage, and user-producers. It means flexibility, so we don’t have to have the same discussion every 5 years. […]

But now we are also turning to a new mandate and a new generation. We have EU leaders and lawmakers committed to copyright modernisation. We have a Commission President-designate fully signed up to a digital single market.

But one thing is clear. That digital single market needs copyright reform. The essential centerpiece. Otherwise it would not be credible, it would just be words.

While there is hardly anything in her entire speech to disagree with, the framing of copyright reform as essentially a (single) market problem may be much more problematic than Kroes and her supporters are ready to acknowledge.

During the Q&A session following her speech Ms. Kroes mentioned that at the beginning of her term as Digital Agenda commissioner she had tried (regrettably unsuccesfully) to acquire direct responsibility for copyright policy (which has traditionally been part of DG market, which is responsible for the single market). Over the past years, DG market under commissioner Barnier has repeatedly shown that they are unwilling to fundamentally modernise copyright to the new fast changing environment.

This position is clearly echoed in the recently leaked draft of the white paper and is built on a reductionist perception of copyright as a support structure for traditional content distribution models. It is also likely the result of regulatory capture by rights holders and their representatives. As long as copyright policy remains the responsibility of DG market, this is not very likely to change.

In this situation framing the need for copyright reform as a single market issue is probably counterproductive (even though copyright reform as envisaged by Kroes in her speech will undoubtedly benefit the functioning of the single market). If we want to avoid another 5 years of missed opportunities the most important step is to make sure that copyright policy will be addressed outside the strict market logic employed by DG market and the other proponents of the status quo.

It is time to move responsibility for copyright policy to an environment that can deal with stakeholders other than industry representatives. It is not the single market that is crying for copyright reform, it is Europe and its citizens who have a right to copyright rules that are aligned with current practices and that embraces the opportunities provided by the digital environment. Copyright is no longer the exclusive terrain of artists, music executives, record producers and commercial distributors; it increasingly affects the everyday actions of ordinary citizens and public institutions. In this situation copyright policy needs a new home (for example within the competency of a commissioner for a digital agenda) that is open to input from sectors of society.

Update (11/7/14): Looks like Pirate Party MEP Juila Reda asked Junker if he would keep copyright policy in DG market (in german). Unfortunately Mr Junker did provide her with a rather evasive answer.

Paul Keller