Copyright Reform: Responses to Draft Report and what comes next

By EDRi · February 11, 2015

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Deutsch: EU-Urheberrechtsreform: Antwort auf den Berichtsentwurf

The draft European Parliament report on the InfoSoc Directive, sometimes also called the Copyright Directive, has generated an enormous wave of responses. It was presented by the Member of the Parliament (MEP) responsible for leading the file, Julia Reda, to the Committee on Legal Affairs (JURI) on 20 January, and three weeks later she lists over one hundred newspaper articles on her blog.

The variety of those comments is at least as astonishing as their sheer number: Julia Reda is called a “fringe lobbyist”, praised for her approach, described as proposing an “almost Copernican revolution” and criticised for proposals that are just “more of the same”. Last week has also seen the publication of two – out of three – draft opinions in which other parliamentary Committees present their views on the draft report. This is therefore a good moment to reflect on some of the ideas included in the report and the reactions they have elicited

One matter for confusion is the very nature of the report – what it is and what it is for. The report is for example both criticised for “fail[ing] to deliver true copyright reform” and “represent[ing] the pirate party programme, not an assessment of the implementation of the Directive”. Should the report aim to evaluate the InfoSoc Directive or advance ideas for a future copyright reform?

An Own Initiative (INI) Report is a report initiated by one of the Committees of the European Parliament – in this case by the Committee on Legal Affairs. The goal of this report is indeed to evaluate the InfoSoc Directive, however in doing so it should also advance proposals on how to overcome the difficulties. Of course, the evaluation must ultimately reflect the opinion of the majority of the Parliament and thus be more than simply the Pirate Party programme (or a Conservative, Socialist, Liberal or other programme).

What are the next steps and what is the report’s ultimate significance? After all of the relevant Committees have transmitted their opinions, JURI will vote on the report and transmit it to the Plenary. If it is adopted there, it becomes a non-legislative and non-binding resolution in which the Parliament states its current position on certain matters of copyright reform. The Parliament hereby communicates to the Commission what it expects of future copyright legislation. This in turn can shape the Commission’s proposal for copyright reform, which is expected within this year. The Parliament has a notoriously short memory, especially of its own positions, so it will not consider itself bound by anything it decides upon now.

While the varied nature of the responses could make one doubt if they are all discussing the same text, there is one point on which almost all agree: the reform envisioned by the draft report is significant. Some of the more dramatic responses also show that much of the debate is driven by ideology and panic, rather than the facts. If this continues, the whole debate will be undermined by fear, uncertainty and doubt.

While there are many changes envisaged, we will mention here only the principal part – the exceptions and limitations to copyright which are covered in 17 out of 25 paragraphs in the draft report’s. The ideas included in the report aim at harmonising these exceptions and limitations to ensure that users are accorded certain rights.

The recommendations include making all of the exceptions enumerated in the original Directive mandatory, clarifying them in light of today’s practices and introducing an “open norm”. The open norm (like all exceptions) would allow users to use copyrighted works when this use does not impact on rights holders’ ability to exploit their works.

Julia Reda underlines on multiple occasions the importance of the three-step test of the Berne Convention, the foremost international agreement on copyright. However, this has not stopped some commentators from alleging that she is trying to undermine that very principle. This is reminiscent of the apocalyptic forecasts of lobbyists campaigning against the one mandatory exception in the Copyright Directive in 2001. Looking back, we can see that these fears proved to be entirely misplaced.

While the press has called the draft report everything from naive to brave, from conservative to fringe, the draft opinions by the other committees seem to show that Julia Reda’s report is not quite as extreme.

The draft opinion by the Committee on the Internal Market and Consumer Protection (IMCO) agrees with most of the general points raised in Reda’s report but focuses on specific elements thereof. It stresses – as the draft report does – the importance of an appropriate remuneration of all categories of rights holders and notes the dangers of market fragmentation, legal costs and legal uncertainty. The opinion also shows some support for the idea of an open norm, asking for a “flexible and balanced framework for exceptions and limitations”. It notes the importance of exceptions for education and teaching and wants to see “e-books as part of public lending”.

The Committee on Culture and Education (CULT) does not seem to hold any major reservations about the draft report either. Their opinion stresses that embedding and linking should not be considered infringing on rights holders exclusive rights. They favour the implementation of mandatory exceptions, “at least with regard to the most important exceptions, such as those in the field of education, research and libraries”. They also call for a general exception “to offer a broader interpretation of current exceptions”.

It seems that many Members of Parliament agree with those voices that deem the approach sketched in the draft report sensible and more than merely the Pirate Party programme. However, we must not forget that we are still in an early phase of the formulation of the final INI Report. And what is more, this INI Report only represents a very first step on the long way to a reform of European copyright law.

We have to devote a last word to the French Culture Minister, who attacked the Parliament’s decision to appoint a Pirate Party MEP to guide the work on a non-binding Resolution on copyright. While she is entitled to her view, it is worth noting that there is no similar objection to a former music industry lobbyist being the current Head of the Copyright Unit of the European Commission, nor was there any particular objection to the wife of the head of Vivendi Universal being the MEP in charge of pushing the IP Enforcement Directive through the European Parliament in 2004.

Julia Reda’s Draft Report on the InfoSoc Directive (15.01.2015)

Blog post by Julia Reda on the responses to her Draft Report (27.01.2015)

Article by the Register on the Draft Report (20.01.2015)

Former Pirate Party MEP Amelia Andersdotter on the InfoSoc Draft Report (25.01.2015)

IMCO Draft Opinion on the InfoSoc Draft Report (03.02.2015)

CULT Draft Opinion on the InfoSoc Draft Report (30.01.2015)

(Contribution by Julian Hauser, EDRi intern)