The Juncker Commission’s plans for EU copyright

By Mark Owen

With a new EU Commission taking up the reins in early November 2014 and copyright reform at the top of its agenda, 2015 is set to be a year of impressive noise and heat around EU copyright.  How much light – and real reform – is generated, remains to be seen.

The three men now leading copyright reform are Andrus Ansip (Vice President for the Digital Single Market), Guenther Oettinger (Commissioner for digital economy and society) and of course President Juncker.  Their stated primary goal is the completion of an EU digital single market, with a vision of EUR 250 billion of additional growth by 2020, hundreds of thousands of new jobs for the young, and “a vibrant knowledge-based society”.

The timetable is ambitious, Juncker claims he expects significant progress towards modernising copyright (not to mention reforming telecoms laws, making online consumer regulation simpler and agreeing the controversial Data Protection Regulation) within six months.

But what does this really mean, and do the plans indicate a real break with the previous Commission and in particular the views of Neelie Kroes?  The outgoing Commission had only just finished working on a still unpublished (but heavily leaked) draft copyright White Paper.  Has that been discarded, or is the new plan really the old plan in new clothes?  The early signs are mixed.  On the one hand the new Commission talks about greater rights and compensation for copyright owners.  On the other it intends to facilitate the pan-EU licensing of rights, a particular bugbear of digital services.

But there seem to be several guiding principles:

– responding to the needs of consumers. (For example: “They should be offered access to services, music, movies and sports events on their electronic devices wherever they are in Europe and regardless of borders”);

– fair remuneration for creators;

– being pluralistic, respectful of fundamental values such as freedom of speech and “taking full account of Europe’s rich cultural diversity”; and

– promoting creative industries in Europe so they can “reach out to new audiences, adapt to the digital era and thrive in the connected Digital Single Market”.

So far so good and there is something for everyone, but such aims could be attributed to any attempt at reforming copyright over the last decade. Recent pronouncements suggest that some more radical moves are planned.

Harmonisation: Mr Oettinger recently stated that he intends to harmonise copyright legislation within the EU. He did not provide much detail of what he had in mind other than that it should extend both to the term and the scope of copyright.

Geo-blocking and pan EU licensing: Mr Ansip has described geo-blocking as being against the core principles of Europe’s single market and that enabling consumers to have easier access to content across borders is a key priority. To assist with this, Mr. Oettinger intends to promote a one-stop shopping system so collecting societies can grant licences for the entire European market.

Levies: Perhaps more unexpectedly, Mr. Oettinger has stated that he is planning to introduce a new copyright levy relating to use on the web, something likely to be highly controversial.  His plans seem to be based on concepts of mandatory levies recently discussed in the German news publishing industry. The copyright levy system was invented in the 1960s in Germany in order to compensate authors for damage and losses caused by a market failure due to the actual and legal impossibility of controlling private copying. The absence of any such market failure has been one of the economic arguments raised in the debate around creating a neighbouring right in Germany.

National silos and greater harmonisation: A recurring theme is the concept of national copyright silos, and their incompatibility with borderless digital technologies.  It is true that copyright law is only partially harmonised across the EU.  Important differences exist between which works are protectible and what may be done with the without the copyright owner’s permission. But greater harmonisation is not an easy goal.  It would inevitably necessitate a fundamental review of the balance between rights-owners and users, which may lead to changes which may have a profound and possibly existential effect on some current digital business models.  The last time this was attempted, with the introduction of the Information Society Directive in 2001, the effort took nearly a decade from start to finish and was at the time the most heavily ever lobbied piece of EU legislation.

The plan is ambitious and the clock is ticking.