Copyright reform: assessing the impact for cultural heritage institutions
As part of the European Commission's review of the EU copyright rules Commissioner Barnier has promised a white paper to outline the general approach to EU copyright reform that the current Commission will recommend to the next Commission. While we are waiting for this to materialize, we may learn something from a draft version of the impact assessment that has leaked via statewatch.org.
At the time of writing, there are five parts to the document, marked as a ‘draft to be finalised in the light of the responses to the public consultation’. Dated mid-February of this year, it has the following sections: The introduction, a section on user-generated content, a section on Text and Data Mining, a section on Disabilities and a section assessing the impact of legislative intervention.
What is an impact assessment?
Impact assessments are documents that need to be produced as part of any legislative proposal in the European Commission. They are produced by working groups from all affected Directorate Generals, and as such tend to reflect the position of the Commission as a whole. Generally, these documents attempt to assess the impact of a number of policy options ranging from ‘do nothing’ to a complete overhaul of the system in question.
The draft impact assessment lists four possible policy options: (1) Rely on the market to improve the availability of content online, (2) Commission guidance to member states and market players, (3) legislative intervention, and (4) the development of a European copyright code. Of these four options 1 and 2 are variations of ‘do nothing’, option 4 seems unrealistic in the current climate, leaving option 3 which is by far the most interesting. In the rest of this post, we will take a closer look at how the impact assessment deals with option 3 and, more specifically, what it has to say about expanding exceptions that would benefit cultural heritage institutions.
Making more room for cultural heritage institutions
The draft impact assessment identifies two sub-options of policy – option 3; options 3a and 3b. Option 3a can best be described as harmonisation of the European legal framework with minimal expansion of exceptions. The alternative, option 3b, can best be described as harmonisation plus substantial expansion of exceptions. Here is how these policy options are worked out with regards to exceptions benefitting cultural heritage institutions (page 62):
Libraries and archives: This option [Legislative Intervention] would harmonise and make mandatory the implementation in national legislation of exceptions for preservation, for remote access for the purpose of research and private study, and for e-lending. As to the scope of the exception, two solutions can be envisaged:
Alternative a: The preservation exception would apply to all works including those born digital, and include format shifting. An exception for remote (off-premise) online consultation for purposes of research and private study would apply to those works to which no terms and conditions apply at the time of purchase, as long as a secure network can be assured. The e-lending exception would apply in a manner that would be functionally equivalent to physical lending and include conditions to make it compatible with the three step test. In addition, mass digitisation would be promoted through giving cross-border effect to Member States’ legislation underpinning voluntary agreements for the making available of out-of-commerce works.
- Alternative b: The preservation exception would be extended to enable restoration and mass digitisation of all works in libraries’ collections (including all legal deposit materials) whether or not in commerce. Remote access would be extended to cover the same works.
When comparing these two sub-options with the responses to the Public Consultation on EU Copyright Rules from cultural heritage institutions (such as Europeana or Dutch cultural heritage institutions) it becomes clear that the needs of the cultural heritage institutions falls between the two. The Commission can (and as I explain below, should) revise these options in line with responses put forward by cultural heritage institutions.
Enabling online access to collections
Europe’s cultural heritage institutions have argued that the ‘most urgent issue confronting cultural heritage institutions today [is the question of] providing online access to works in their collections’. Europeana and others have put forward a nuanced proposal in their response to the Public Consultation on EU Copyright Rules that seeks to expand institutions’ ability to make their collections available online while at the same time meeting the requirements of the three-step test that mandates that exceptions are only allowed ‘in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author’.
Specifically cultural heritage institutions propose an exception allowing online access to works in their collections as long as these works are not in commercial circulation anymore, and as long as rights holders have not rejected making them available. This proposal is more permissive than sub-option a, which limits access to access via a ‘secure network’ but is more restrictive than sub-option b which would allow for remote access of all works in the collections of these institutions.
While this is only a draft, this structure seems highly problematic when seen in the light of the analysis of both options further down in the document:
While the assessment of the impact of sub-option 3a is overwhelmingly positive (page 67)…
Greater accessibility to and preservation of heritage materials, taken together with the preservation of incentives to create would contribute positively to cultural diversity. The harmonisation of exceptions for persons with a disability and for UGC would improve the balance between the fundamental right to property on the one hand, and on the other, fundamental rights such as the rights of disabled persons or the freedom of expression.
… the possible impact of sub-option 3b is painted in a very negative light (page 69):
On the other hand, Option 3b proposes in some cases a scope for exceptions that could go beyond the minimum necessary to facilitate access and to reduce transaction costs, going in some cases as far as to enable non-commercial services to compete with licensed services on the basis of an exception (rather than on the basis of authorisations as it is the case with licensed commercial services) For example the expansion of the exception to enable libraries and archives to make available protected content that is otherwise distributed online by rights holders would expand significantly the opportunities for cultural heritage institutions to make their collections available to the public. However the option risks undermining competition by enabling them to compete on an uneven footing with commercial services, undermining normal commercial channels, and therefore risking incentives to create and produce.
Argumentum ad consequentiam
So what does this mean for the position put forward by cultural heritage institutions?
Having outlined a sub-option 3b that clearly does not meet the conditions of the three-step test, the impact assessment can easily dismiss this option as undesirable for enabling unfair competition with commercial services. Sub option 3a, which fails to address the crucial issue of online accessibility of collections in a meaningful way is presented as the more reasonable approach to legislative intervention.
By incorrectly summarising the position of those in favour of meaningful expansion of exceptions and limitations, the draft impact assessment ends up favouring a rather meaningless legislative intervention.
This draft version of the impact assessment circulating online is dated February while the consultation ended in early March, I’d hope that the final version would be updated in the light of all responses to the consultation.
With regards to the limitations benefitting cultural heritage institutions, such an update must take into account the nuanced position brought forward by many of these same organisations, That nuanced position does not map onto any of the two preconstructed sub-options in this draft of the impact assessment. This can be done in at least two ways;
One way would be for the description of sub-option ‘a’ to reflect the actual responses by cultural heritage institutions.
The other way would be to define conditions that expanded exceptions would need to meet to be acceptable instead of presenting two sub-options. Interestingly the passage assessing sub-options contains language that can easily be used for this purpose;
The interests of rights holders are not expected to be prejudiced by making compulsory of the existing exceptions (providing that a good solution is found for the issue of fair compensation when relevant) as long as specific conditions to ensure compliance with the three step test are maintained or clarified. The same respect of the three step test should be assured for new exceptions (page 67).
Applying this line of reasoning to the position put forward by Europeana and others would underline that this position does not prejudice the interests of rights holders while at the same time massively improves access to cultural heritage for the citizens of Europe. It would be good if the same conclusion was arrived at in the final version of the impact assessment.