Hugenholtz & Hargreaves on Modernising the European Copyright Framework

Last week the Lisbon Council published a new Policy Brief on Copyright Reform for Growth and Jobs: Modernising the European Copyright Framework. In the policy brief Ian Hargreaves and Bernt Hugenholtz draw up an agenda for copyright reform in the European Union by proposing a menu of policy options that could be implemented relatively quickly.

Copyright reform?

Hugenholtz and Hargreaves start their policy brief by looking at the current situation in Europe, and they do not like what they see: Not only do they consider Europe’s copyright framework to be out of touch with an economy that is shaped more and more by the impact of digital technologies, they are also skeptical about what currently passes for copyright reform in the EU:

In December 2012, the European Commission vowed “to ensure that copyright stays fit for purpose in this new digital context” after a key orientation debate convened by President Barroso. […] As practical steps, the Commission offered two parallel tracks of action. The first, already underway, is a “stakeholder dialogue” to address six issues […]. A second track of work is to arise from a series of market studies, impact assessment and legal drafting work “with a view to a decision in 2014 whether to table legislative reform proposals.”
How does this emerging European approach to reform look in a global context? The answer is it looks rather cautious, given the continued pace of technological change and the increasing indications that other countries are ready to pursue more rapid and more radical reform. History also suggests that Europe will struggle to achieve the political momentum needed to deliver even the modest and piecemeal change of the type currently under discussion.

We have already pointed out the flaws of the Licenses for Europe approach here, so we could not agree more. While the Commission directs critics of the stakeholder dialogue to the parallel review of the EU legal framework that the Commission is currently undertaking, there is very little reason to believe that this will result in any substantial reform agenda. In this situation Hugenholtz and Hargreaves see an urgent need for reform that is both effective and can be implemented within the existing European and international frameworks:

The danger is that Europe’s copyright framework increasingly becomes a regime which meets no-one’s needs and expectations. If that happens – or if, as some suggest, it has already happened – perhaps there is an opportunity to mobilise stakeholders from opposing camps around the following six pillars of reform:

  1. A legal framework which makes sense to consumers and citizens and which therefore encourages and enables people to respect the law.
  2. An approach to competition in digital markets which focuses upon consumer welfare, achieved through the working of open and contestable markets.
  3. A primary ambition to support business innovation rather than aiming mainly to protect existing business models in the interest of contributing to the maximum extent possible to the growth of European productivity, economic output and jobs.
  4. A regime that both underpins and is part of a digital single market, without which Europe’s digital economy will continue to underperform relative to North America and, increasingly, Asia and other territories.
  5. An approach to enforcement of the law which protects the interests of authors and rights holders, but only to the extent to which this is supported by economic impact analysis, recognising that copyright exists primarily to generate effective economic incentives for authors and other creators. Strong enforcement activity should be directed against those aiming to make commercial returns from business models based upon clearly illegal activities.
  6. An adaptive legal framework which offers flexibility in the face of further technological change.

Seven suggestions for copyright reform

Based on these six pillars the two professors develop a menu of policy options for European lawmakers. The menu consists of seven short-term interventions that would fix specific aspects of copyright legislation across the EU. According to Hugenholtz and Hargreaves, all of these options could be (at least partially) implemented within the 2014–2015 timeframe given sufficient political resolve of lawmakers and stakeholders:

  1. Make limitations and exceptions more harmonised and flexible. Make a core set of limitations and exceptions mandatory for all member states, while allowing member states flexibility in applying other limitations and exceptions depending on social and cultural circumstances, or in response to unforeseen technological change.
  2. Reduce terms of protection. So they are aligned with the maximum requirements of international treaties in order to promote digital access to cultural heritage.
  3. Simplify online licensing across the EU. Remove territorial restrictions to multi-territorial licensing, provide regulatory incentives for setting up public databases of copyright metadata, and permit extended collective licensing.
  4. Recalibrate the Reproduction right. Replace the currently technical notion of reproduction by a more normative interpretation that factors in the economic impact of a digital reproduction. If a technical copy has no economic significance, it should not count as reproduction.
  5. Simplify legal protection of digital rights management systems. Anti-circumvention protection should apply at most in cases where circumvention is directly connected to copyright infringement.
  6. Downsize the database right. Reduce the scope of the database right by limiting it to commercial uses of databases, and expanding limitations and exceptions.
  7. Rebalance copyright enforcement. Harmonise the rules on injunctive relief against intermediaries in accordance with the EU Charter, relax the rule of recovery of attorney’s fees, and make abusive copyright enforcement strategies (troll behaviour) unlawful.

In the policy paper the authors go into more detail on these recommendations, including suggestions how they could be implemented. They also argue that all of these options are compatible with the relevant international treaties.

From the perspective of COMMUNIA all of these policy options make sense and substantially overlap with our policy recommendations from 2011. It is good to see these two eminent scholars in the field join forces and put commonsense policy proposals on the table.

It will be interesting to see how stakeholders react to this approach, which focuses on modernising the framework in order to support economic recovery in Europe. If last week’s presentations in Brussels is any indication, representatives of rights-holders will have difficulties positioning themselves vis-a-vis this approach: Uncharacteristic for an event on copyright (reform), no rights-holder representatives were in attendance.

A unified copyright law for Europe?

In addition to the seven policy options above, Hugenholtz and Hargreaves make one other recommendation: To unify European copyright law by replacing all national laws by a single European law. Both professors argue that ultimately a single digital market will lead to a unified European copyright code. Or in the words of Ian Hargreaves, “If you believe in a single digital market you have to ultimately believe in a unified European Copyright Law”. While this is obviously a long term undertaking, it would certainly help to have a real believer in the single digital market to be in charge of Internal Market when the new Commission is formed at the end of next year.

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