EU Commission ignores scientific studies on copyright term extension, listens to music industry instead

6 januari 2010

Professor Bernt Hugenholtz the director of the Institute for Information Law (IVIR) at the University in Amsterdam (and Legal project Lead for Creative Commons Netherlands) has written an open letter to the president of the European Commission, Manuel Barroso in which he is expressing his irritation with the European Commissions policy making process in the field of Intellectual property law. This letter has been triggered by the recent proposal by Commissioner Mc Creevy for a 45 year extension of the current 50 year period of copyright on musical recordings.

Hugenholtz is the principal author of two studies commissioned by Mc Creevey’s Internal Market directorate (’Recasting of Copyright & Related Rights for the Knowledge Economy‘ (2006) and ‘the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society‘ (2007) that both deal with the question of the economic and legal impact of an extension of copyright terms on musical recordings. Hugenholtz and his team of experts concluded, among other things, that a copyright term extension would be a bad idea resulting in increasing costs for consumers, competitors, and society as a whole while at the same time only benefitting a small class of highly successful artists and their record labels.

In his open letter Hugenholtz recognizes that academic experts won’t see their words translated directly into policy but that there is a reasonable expectations that the European Commission who commissioned scientific studies on this issue would at least reference the outcomes of these studies:

"We are, of course, well aware that several conclusions of the IViR studies do not agree with the policy choices underlying the Commission’s proposals. And we are certainly not so nave as to expect that the recommendations of an academic institution such as ours, however well researched and conceived they may be, will find their way into the Commission’s policies in undiluted form. What we would expect however is that our work, which was expressly commissioned by the policy unit in charge of these proposals, be given the appropriate consideration by the Commission and be duly referenced in its policy documents, in particular wherever the Commission’s policy choices depart from our studies’ main recommendations.

As you are certainly aware, one of the aims of the `Better Regulation’ policy that is part of the Lisbon agenda is to increase the transparency of the EU legislative process. By wilfully ignoring scientific analysis and evidence that was made available to the Commission upon its own initiative, the Commission’s recent Intellectual Property package does not live up to this ambition. Indeed, the Commission’s obscuration of the IViR studies and its failure to confront the critical arguments made therein seem to reveal an intention to mislead the Council and the Parliament, as well as the citizens of the European Union.

In doing so the Commission reinforces the suspicion, already widely held by the public at large, that its policies are less the product of a rational decision-making process than of lobbying by stakeholders. This is troublesome not only in the light of the current crisis of faith as regards the European lawmaking institutions, but also – and particularly so – in view of European citizens’ increasingly critical attitudes towards intellectual property law."

While these are strong words it is questionable if the Commission, having angered large parts of the scientific community in the process of adopting the term extension proposal, will listen to them. However there is some hope that this letter and other expressions of discomfort with this way of policy making will get the attention of the European Parliament which will need to approve the proposal before it can become effective.

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