By Diego Naranjo

Among the very energetic but narrow group of critics attacking the European Parliament’s draft report on the implementation of the Information Society Directive (2014/2256(INI)), the Spanish collecting society SGAE has been one of the most vociferous. In a position paper sent to Parliamentarians, SGAE declares “inadmissible” the mere idea of debating copyright reform and makes the rather baffling claim that rapporteur MEP Julia Reda’s goal is to abolish the copyright regime and authors’ rights. In order to support this, SGAE quotes a study by the Office for Harmonization in the Internal Market (OHIM) which overestimates the employment and growth created by cultural industries.

Regarding the European Commission’s public consultation on the review of the EU copyright rules, SGAE says that the results are not valuable because many citizens felt that their views were sufficiently represented by a standard answer and chose not to wade through 74 technical copyright questions spread over the 36 pages of the consultation. They also claim that the single answer from the European Grouping of Societies of Authors and Composers (GESAC) represented “more than a million authors and composers”.

Later on, SGAE misunderstands the rapporteur’s proposal and states that it is unacceptable to “suggest” that works belonging to public entities should stay outside the copyright regime and that that would be a violation of author’s rights. However, MEP Reda clearly explained that her focus was not on every work created with public money but more concretely on those pieces of the regular work of a state or public authority (for example, opinions presented by judges in a judgment, or NASA’s photographs).

Regarding the lack of harmonisation of exceptions and limitations incurrent copyright rules, when Reda says (para. 9) that “exceptions and limitations should be enjoyed in the digital environment without any unequal treatment compared to those granted in the analogue world”, SGAE calls it a simplistic argument. Its rebuttal, not based on a very profound argument, is that digital works differs totally from the analogue world. SGAE also adds that creating new exceptions and limitations as well as broadening the existing ones would weaken the system of protections – and that it would be contrary to Court of Justice of the European Union (CJEU) case law on the strict interpretation of exceptions and predictability of the law. This line of argument itself fails to acknowledge the existence of the World Intellectual Property Organization (WIPO) three-step test and its transposition into EU law in the Information Society Directive.

Even more puzzling is that the rapporteur’s call to make all exceptions and limitations mandatory is seen by SGAE as contrary to the principle of subsidiarity. This principle encompasses the idea that Union law should not be put in place unless it is more effective than legislation at the national, regional or local level.

Finally, on the issue of digital protection measures (para. 23), SGAE argues, incomprehensibly, that Reda’s proposal “appears to” propose limiting all technological protections, and that this is against international treaties. SGAE seems to have overlooked that the rapporteur talks about “access to content that is not subject to copyright or related rights protection”. On the other hand, if SGAE wishes to protect the use of technology in order to keep cultural goods out of the hands of citizens, even when there is no copyright interest to be protected, this would a very elegant explanation of its philosophy.

Although the report starts off with the statement that SGAE is not opposed to the revision of the Information Society Directive it is only on condition that it is the same as the creaking old one. Reality keeps changing, but the adaptation to this new reality and facilitating access to culture online is being blocked by stagnant arguments like the position presented by SGAE. In this regard, the United Nations (UN) Special Rapporteur in the field of cultural rights, Farida Shaheed brought arguments for a positive change which are a breeze of fresh air for a meaningful review of EU copyright rules.

SGAE’s position paper on MEP Julia Reda’s report (only in Spanish, 14.01.2015)
https://edri.org/files/SGAE-Reda.pdf

Copyright for Creativity Coalition: Factsheets on copyright myths (on the reports elaborated by OHIM and EY quoted by SGAE)
http://copyright4creativity.eu/myths-facts/

EDRi’s response to the European Commission consultation on copyright (12.03.2014)
https://edri.org/wp-content/uploads/2014/03/EDRi-answer-copyright-consultation-2014_web.pdf

UN report on copyright – is the EU really a beacon of human rights? (25.02.2015)
https://edri.org/un-report-copyright-is-the-eu-really-beacon-of-human-rights/

EDRi’s observer member Xnet responds to SGAE’s position paper
http://xnet-x.net/en/responds-to-the-sgae-in-europe

 

(Contribution by Diego Naranjo, EDRi)

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