Failure of ‘Licenses for Europe’ underlines the need for reform of the EU copyright framework
Today, the Licenses for Europe experiment comes to an end. This initiative, launched almost a year ago, was ostensibly an attempt to 'explore the potential and limits of innovative licensing and technological solutions in making EU copyright law and practice fit for the digital age'.
At the end of this process we are compelled to conclude that 10 months of meetings have largely failed to identify any solutions which can be backed by all, or even the majority of, stakeholders involved. It is evident that there is very little consensus among stakeholders about the appropriate approach to making EU copyright law and practice fit for the digital age. It is unclear as to how licensing solutions can provide a significant improvement to a copyright system that has been widely recognised as being inefficient and out of date.
As a result, and as many stakeholders have been arguing for years, it is long past time that the European Commission initiated a full review of the existing copyright framework to identify areas where legislative changes are needed. We call on the Commission to stop delaying this urgent step, to proceed now, and to waste no additional time in further discussion on whether or not legislative action is necessary.
In real policy making terms this means that the copyright directive must be analysed by reopening the list of possible exceptions, and reviewing each individual exception to determine if and how they need to be adapted to the changed environment. As all of the exceptions are, by definition, compliant with the 3-step-test, they should be made mandatory, in order to avoid an unnecessary restriction on access to culture and freedom of communication.
‘User Generated Content’
Our organisations participated in Working Group 2 of the stakeholder dialogue on 'User-generated Content and Licensing for Small-scale Users of Protected Material'. From the start this working group has struggled to identify, let alone agree, a (set of) problem(s) that need to be addressed:
Civil society groups and representatives of users have stressed the need to have clearly established rights for European citizens that allow them to create and share works that include protected works from third parties.
The representatives of rights holders have insisted that this is not necessary. Instead they have advocated an approach where rights holders license their works to platform operators, which would in turn allow users of these platforms to share such works via these platforms.
Given the focus of the Licenses for Europe process on 'innovative licensing and technological solutions' and the explicit refusal of the Commission to allow any discussion of other approaches the stakeholder dialogue proved itself to be incapable of even attempting to reconcile these different approaches.
It has, however, clearly shown that the general approach of facilitating the agreement of licensing arrangements between rights holders and platform operators does not produce outcomes that address the needs of the public and other non-industry stakeholders such as institutions in the public sector. In the current technological environment, copyright affects ordinary citizens and many professionals, such as teachers and cultural heritage professionals, that are not represented by the two industries that Commission’s approach suggests are the only legitimate stakeholders. There are user rights at stake in this discussion that are extremely important in fields other than popular culture, in particular in education, but also for political expression and democratic participation.
Looking back, it is difficult to view the proceedings of Working Group 2 as anything other than a fundamentally undemocratic attempt to subjugate the ability of citizens to express themselves through digital media to the outcome of licensing negotiations between rights holders and platform operators. Such a process does not create rights, it would simply authorise certain forms of expression on the terms of rights holders.
This means that the discussion needs to shift to the question of how we can best guarantee the right of European citizens to make transformative use of protected materials, in order to express themselves via digital media. Canada has recently introduced an exception for such uses into its copyright law. Member states such as the Netherlands are currently exploring the possibility of broadening an existing exception to achieve the same effect.
From our perspective, any attempt to 'make EU copyright fit for the digital age' should follow these examples and reform current copyright legislation. It is worth noting that these examples only address non-commercial uses by private individuals and as such do not unreasonably restrict the ability of rights holders to negotiate licenses for commercial uses that platforms make of the works in question.
As stated above, such actions need to be integrated into a full review of the EU copyright directive that also looks at the issues that have been addressed in other working groups (such as Text and Data Mining) and issues that have been left outside of the scope of the Licenses for Europe process (such as use of protected materials for educational activities).