Copyright reform: Restoring the facade of a decrepit building

“The Special Rapporteur also proposes to expand copyright exceptions and limitations to empower new creativity, enhance rewards to authors, increase educational opportunities, preserve space for non-commercial culture and promote inclusion and access to cultural works.”

These recommendations come from the 2014 report on Copyright policy and the right to science and culture, from the UN Special Rapporteur in the field of cultural rights, Farida Shaheed.

On 9 December 2015, the European Commission presented its Communication on a new framework for a “modern, more European copyright”. The Communication focuses on access to content across the EU, adapting some exceptions, attempting to improve the market, and enforcing certain aspects of copyright.

Unfortunately, however, the Commission has lost an important opportunity to launch a real reform of the broken and outdated EU copyright framework. Its Communication lacks the ambition to challenge the powerful lobbying from investors and rights-holders, and make copyright rules truly fit for the 21st century – for the benefit of all. After admitting that the “fragmentation of copyright rules in the EU is particularly visible in the areas of exceptions”, the Commission seems to be committed to not to do anything about it. By focusing only on the “low-hanging fruit” (exceptions for education and research, freedom of panorama, geo-blocking…), the Commissioner for Digital Economy and Society Günther Oettinger and Vice-President of the EU Commission Andrus Ansip are presenting a public relations campaign on the “changes” for the Digital Single Market, rather than a powerful policy document that deals with the challenges which need to be addressed.

The oldest of the norms governing copyright in the EU, the so-called InfoSoc Directive (Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society), was passed before the existence of YouTube, WordPress and Facebook. Despite the challenges and proposals mentioned in the Commission’s copyright consultation in 2014 and in the European Parliament report on the implementation of the InfoSoc Directive, the Commission failed to take them into consideration in its Communication.

Among the missing aspects that the Commission seems to be avoiding is the need to harmonise the system of exceptions and limitations fully and to make it more flexible, as United Nations (UN) Rapporteur Farida Shaheed suggested in her report. Under current EU copyright law, the exceptions and limitations listed in the InfoSoc Directive must, by law, comply with the strict interpretation of the Berne Convention’s three-step test. Therefore, there is no justification of not making all exceptions and limitations mandatory since they comply with international law, and there is no undue loss on the part of the rights-holder.

Finally, the Communication has also failed to step up firmly against the circumvention of legislators’ decisions. The Commission needs to state clear for once and for all that when democratic decisions have been made to grant flexibilities to copyright, technology companies need to abide by the law. However, this is exactly the opposite of what happens today. Companies such as Google (via its Content ID tool) allow the automatic deletion of content that is perfectly legal under EU law, while digital restriction technologies prevent private copying, even where this has been permitted by legislators.

This issue of enforcement is also one of the topics included in the ongoing public consultation on platforms, for which EDRi prepared an answering guide and a submission tool. It will also be tackled during the consultation on the enforcement of so-called Intellectual Property Rights (IPR) that the Commission launched on 9 December. Citizens now have the opportunity to raise their voice and provide a counterweight to arguments based on, for example, the flawed statistics prepared by the Office for the Harmonization of the Internal market (OHIM) and the European Patent Office (EPO) which have recently been myth-busted by the Copyright for Creativity Coalition (C4C). EDRi encourages everyone to answer these two consultations, to make citizens’ and civil society’s voices heard.

European Commission Communication: Towards a modern, more European copyright framework (09.12.2015)
http://ec.europa.eu/newsroom/dae/document.cfm?action=display&doc_id=12526

EDRi tool to respond to the EC Consultation on Platforms (08.12.2015)
https://edri.org/platformsconsultationtool/

EDRi: EDRi summary report of responses to the copyright consultation (30.07.2014)
https://edri.org/summary-report-responses-copyright-consultation/

European Commission launches consultation on IPR enforcement (09.12.2015)
http://ec.europa.eu/growth/tools-databases/newsroom/cf/itemdetail.cfm?item_id=8580

YouTube’s Content ID (C)ensorship Problem Illustrated (02.03.2010)
https://www.eff.org/deeplinks/2010/03/youtubes-content-id-c-ensorship-problem

C4C: Copyright Myths and Facts
http://copyright4creativity.eu/myths-facts/

(Contribution by: Diego Naranjo, EDRi)