ENDitorial: Licences for Europe and fight club… only one rule

By EDRi · February 13, 2013

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Deutsch: [ENDitorial: Europäische Lizenzen und der Fight Club … es gibt nur eine Regel |]

There was a moment in November 2012 when even the most cynical observers
of the European Commission were hopeful of an effective reform of
copyright. Commissioner Barnier gave a speech where he demonstrated that
he understood the problems. He explained that “the digital revolution
has not yet lived up to expectations in the European context” and
described some barriers to cross-border access to content as
illegitimate. Finally, the problems had been identified. And recognising
a problem is a first step to solving it.

Then, in December 2012, the Commission was even more explicit. It
explained that the following would be addressed: territoriality in the
Internal Market; harmonisation, limitations and exceptions to copyright
in the digital age; fragmentation of the EU copyright market; and how to
improve effectiveness and efficiency of enforcement while underpinning
its legitimacy in the wider context of copyright reform.

So far, all that has actually happened is the launch of the Commission’s
“licences for Europe” initiative. Or rather, the Commission’s launched
industry’s initiative… or… well, whoever it is that owns it, was
launched. The last line of Commissioner Barnier’s speech at the opening
event was very telling. “The ball is in your court,” he said. He didn’t
explain who “you” are – the overwhelming majority of participants
(industry lobbyists), the tiny minority of civil society… or society
in general?

Actually, we know that “you” is not society in general. The first rule
of fight club….”licences for Europe” is… you do not talk about
“licences for Europe”. No web streaming of the working groups, “Chatham
House Rules” that forbid the attribution of statements to particular
participants or their organisations. The public at large is kept firmly
outside of the process. After the lack of transparency that helped bring
down ACTA, we now have closed doors and “Chatham House Rules” for
“licences for Europe”. And no problem definition for the working groups
to work on.

Barnier’s subsequent comment that “it is incomprehensible that Europeans
are coming up against obstacles online which they have been dismantling
in the physical world for more than 50 years,” hovers somewhere between
tragedy and comedy. This statement comes from a Commissioner who
inherited a demonstrably failed 2001 Copyright Directive but has not
acted to fix it. This is the Commissioner that inherited a demonstrably
failed 2004 IPR Enforcement Directive, but has not acted to fix it.

After four years of inaction on licensing and four years of inaction on
exceptions and limitations to copyright, Commissioner Barnier demanded
action… by everyone in the room except himself, to “meet together to
find fast, specific solutions to problems arising in the here and now”.
Fast? Faster than what?

So, what now? Well, we will have months of working group meetings,
carefully shielded from the public by the opaque walls of the European
Commission, bringing us closer and closer to the end of this
legislature, at which time Commissioner Barnier can hand over the
dossier to the next incumbent of the “Internal Market” portfolio.
Instead of less red tape and fewer licences, licences “for” Europe are
likely to generate new barriers and new bureaucracy.

For example, one of the working groups is on “user-generated content”.
User-generated content is… well… how can this be explained…? It is
user-generated and should not require licensing. Obviously? In many
European countries, users can generate content that avails of exceptions
to copyright for parody/pastiche, for incidental use, uses of minor
importance etc., without licences. However, none of these exceptions are
mandatory, so there is a lack of harmonisation across Europe caused by a
European Directive which the Commission has no obvious intention of
resolving. So, if harmonisation is not possible by the removal of
licensing obligations in those countries which don’t have appropriate
exceptions… what will the “working group” be “working” on? Adding
voluntary “licensing” to remove rights that citizens currently have?

The speech from Commissioner Kroes was not much more inspiring. She said
that she was not “too keen on heavy-handed legislative measures. They
aren’t always needed.” This is true. The question is: when you’ve
already got heavy-handed legislative measures that are not fit for
purpose – do you repeal or reform them, or do you farm the problem out
to an ad hoc collection of industry lobbyists in order to make it seem
that the problem is being solved?

It normally takes at least 9-12 months for the European Parliament to
adopt a legislative text. The next elections are in 15 months. Is there
no hope for a real reform in the next two years?

Licenses for Europe

Commissioner Kroes speech: Digital technology and copyright can fit
together (4.02.2013)

Commissioner Barnier speech: Making European copyright fit for purpose
in the age of internet (7.11.2012)

Commissioner Barnier speech: Licences for Europe: quality content and
new opportunities for all Europeans in the digital era (4.02.2013)

(Contribution by Joe McNamee – EDRi)