European Commission doesn’t want to say how the directive was conceived

The Birth of Minerva
does the directive come from one man's head?
Licentie

Wouldn’t we all want to know how the copyright reform proposal gained its current shape? Was it at a roundtable of sages? Did someone knock Commissioner Günther Oettinger’s head and the proposal sprung out? We have filed an access to documents request (FOIA) to find out what the EC legal services’ opinion was in this process.

Chances are we will not have full clarity on the evidence that substantiated the proposed directive on copyright in the digital single market. After European Digital Rights filed a request to access the correspondence between Commissioners, cabinets and services on the proposal for a copyright Directive in October 2016, the recent response was that there is 1 (ONE!) email that meets the criteria. It would seem that the Commission have a strong oral tradition and excellent collective memory if this is really the only recorded evidence to attest to the quality of the process.

To make things worse, the email cannot be revealed because “the disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure”. We believe that the public interest in knowing how absurdities such as new rights for publishers or the upload filter found its way to the proposal is indeed overriding the secrecy of the only email that has ever been exchanged on the topic. Obviously EDRi has filed a confirmatory application to review the handling of the request that is yet to be considered by the EC.

To learn more about the legality of the most problematic parts of the proposal, Centrum Cyfrowe, COMMUNIA member, filed a FOIA to access the European Commission’s legal service opinion(s) on the drafts of the proposal on February 13, 2017. With the two processes, the Commission has a chance to make the right choice and spill the beans on their intel and sources. If the European Commission decides otherwise, we will be left wondering if the proposal is a result of some intense industry lobbying, or perhaps of unpreparedness of DG Connect to properly address challenges of the 21st century.

Refusal will give a bad name to the EC legal services that could have let out a really bad piece of lawmaking that contradicts existing regulation as well as the EU case law. Moreover, the Commission will prove again that it is one of the least transparent European institutions while keeping its finger on the trigger of change that will shape our digital lives for many years to come.

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