EU copyright reform: a pirate takes the helm

By Mark Owen

Copyright reform discussions are suddenly proceeding apace in Brussels. Hot on the heels on President Juncker’s promise to create a copyright system “fit for the digital age”, a deadline for reform is taking shape (see for background Newsletter 6/2014, p. 22). By May 2015 Commissioner Ansip will publish his digital single market plan and in September 2015 Commissioner Oettinger’s proposed plan for copyright modernisation will be released.

Recently, another key figure has emerged, Julia Reda, a German member of the European Parliament (MEP) and the only MEP from the anti-copyright Pirate Party. In a surprising move Ms Reda was appointed the MEP responsible for guiding through a parliamentary proposal for copyright reform (as Rapporteur of the Parliament’s review of the InfoSoc Directive (2001/29/EC)). Her draft proposals were published in late January and are being debated by the Parliament.

Ms Reda’s draft manifesto for reform of EU copyright is very much from a user’s perspective. Her suggested end-goals include harmonising mandatory exceptions across the EU, making them technology-neutral and future proof and introducing an “open norm” which would introduce flexibility in the interpretation of exceptions. (These are all discussed in more detail below). She believes that EU copyright is “misadapted” to the increase of cross-border cultural exchange facilitated by the internet. From a digital single market perspective, she wants to bring an end to users seeing notices such as “This content is not available in your country” when trying to access content online.

Reda’s exercise is separate to the Commisson’s but her proposals echo many of the same themes as advocated by Juncker and his team. As with those, Reda’s initial report is long on sweeping aspirations but frustratingly short on concrete proposals for bringing her vision about. Content owners have expressed concern that giving an avowed copyright sceptic a central role in devising copyright reform will inevitably damage their rights, and Ms Reda can expect strong resistance to her proposals. Already other MEPS have tabled some 500 amendments to her proposals, let alone comments from those outside the chamber. In some refreshing openness she has been publishing on her website details of the lobbying visits she has received, they are many from all types of interest.

National silos and a single copyright title

Juncker’s mission statement upon his appointment in late 2014 spoke of needing “courage to break down national silos in telecoms regulation, in copyright and data protection legislation, in the management of radio waves and in competition law.” Silos of any sort are anathema to this Commission, and this reference to national silos echoes Ansip’s geo-blocking concerns whose priorities include “[making] sure consumers have access to content across borders.” The concern gives rise to a number of questions and unaddressed consequences. If content has no EU borders the current licensing models and pricing will need to change. Rightsowners will inevitably want to ensure their more lucrative revenue streams remain unaffected. At present, content which may be available at different prices around the EU, more cheaply in countries with lower incomes or where it is less popular, but at premium prices in its main markets. But no borders means a single route of distribution, and a single price. Whatever that price becomes, it will inevitably be more expensive in many places than it is now. This consequence may have been thought through by the Commission, and how it fits with the imperative that content is widely available, but this has not yet been explained.

This is not simple stuff. The consequences of allowing cross-border access to content would need to be considered in detail, from both a legal and an economic perspective. Existing business models which use geoblocking, for example, operate that way for a reason, be it generating appropriate returns, pricing according to local demand, local rights clearance or local funding models. Mandating pan-EU access would interfere with those business interests. The BBC’s iPlayer (on demand catch-up service of BBC output, funded by UK viewers) is a tremendous success in the UK but is not available outside the UK. Following the Commission’s logic, should it be available across the EU in the same way as it is available in the UK? If so that would mean that UK licence fee payers would be subsidising access to BBC content for residents in the other 27 member states, who do not pay for it. If that subsidy is to be avoided, would some form of geoblocking be permissible? And should the BBC be required to acquire pan-EU licences to enable pan-EU access, when it may not be financially justifiable or feasible to do so?

A related idea floated by the previous EU Commission was that there should be single European title to a copyright work rather than, as at present, separate rights in each territory. This has superficial simplicity but disguises great potential complexity. What happens if rights-owners only have the rights for some EU territories? How would the licensing of these rights separately by territory work, how would it be possible without a complete harmonization of all copyright law across the EU and would it mean that there could be no territorial licensing within the EU at all?

Harmonisation of exceptions

At the moment there is partial harmonisation of copyright exceptions across the EU. There are a number of exceptions which are mandatory for each member state to implement (such as allowing temporary copies) but most exceptions are in a list from which Member States can choose. Over time there is an increasing level of harmonization between Member States but it is not yet complete. For example the UK recently changes its laws so as to maximise use of the available exceptions, which led to the introduction of the exceptions for parody, private copying and quotation. This is perhaps the proposal which is the most likely to be implemented, despite counter-arguments that, as with any legislative change, it would create uncertainty and expense for a period of time during implementation.

Term limits

The term of protection applied to copyright works in the EU is higher than that set out in the Berne Convention in respect of several categories of work. Reda has suggested that all terms should be cut down to the Berne level. This seems very unlikely to succeed. One reason is that the US also has higher terms in many cases than Berne and if one of the objectives is to have a gradually more harmonized approach to copyright worldwide then trying to go further than the US has done to reducing copyright protection will create less harmonisation. Just when a transatlantic trade agreement is being negotiated, any attempt to increase the differences between the EU and the US are likely to fail.

A new norm

Two of the most interesting of Reda’s proposals are around a new transformative use exception and what she refers to as the “adoption of an open norm introducing flexibility in the interpretation of exceptions and limitations”.   The first is that the Berne three step test which underlies the approach to exceptions worldwide should be made more clearly the basis of any exceptions. Nothing should be permitted that does not comply with that test. The second is perhaps a move towards a more US style approach to what sort of things should be permitted and what should not, similar to the US “fair use” doctrine. In other words, there should be a broad right to use copyright works in ways which did not interfere with the rights owners primary rights which would lack more flexibility as technology evolved. This proposal is likely to encounter the strongest resistance of any of those in the paper.

Enforcement

Reda’s proposals are silent on enforcement. Aside from passing references to the importance of copyright to creators and creativity, it is unclear whether any detailed consideration has been given to the interests of rights holders in a digital single market. For example, there has been no discussion of how copyright enforcement might work or be facilitated in a single market. To many stakeholders this would be considered the quid pro quo to a digital single market: if legislation mandates pan-EU access then pan-EU remedies against infringing content should also be available. If content available in one member state is to be available everywhere in the EU, so an injunction obtained in respect of one member state’s copyright should, on this view, be applicable and enforceable everywhere.

The EU Parliament will release its views on copyright, in light of Reda’s proposals, in May. It will be a busy summer for EU copyright.

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