The Legal Affairs Committee meeting on copyright was a clash of civilisations

Batle of Hanau
Will the old thinking win?
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Now that most of the committees have published their draft opinions on the Commission’s Directive on Copyright in the Digital Single Market, it’s time to hear their members presenting their initial views. JURI hosted a meeting on 22 March where MEPs voiced a range of opinions on various aspects of the copyright reform proposal. The divide between the MEPs seems to run deeper than mere disagreements on definitions; instead, they underscore a fundamental schism in the MEPs’ understanding of the world we live in.

The industry-backers

Some MEPs reacted to the copyright reform proposal using a 20th century ordering of the world, where mass-scale creative industries emerged and eventually were consolidated. For MEPS such as Jean-Marie Cavada (ALDE, France) or Angelika Niebler (EPP, Germany) the world has not changed all that much in terms of where important stuff happens. Cavada and Niebler think publishers and other rightsholders produce all the real value, while the internet and new sharing technologies is like a portable TV that  that main purpose of is to constantly rip them off.

Seeing the world like that, it’s no wonder that they mostly approve of the European Commission’s original proposal, and oppose reforms that champion users’ rights, which for the most part they see as legitimizing tech-enabled theft. There is no coincidence that many of those creative industry backers are from France and Germany, countries that built their considerable entertainment industries well before the digital era.

The ill-informed sector

There is also a group of MEPs similar to the industry-backers, but upon closer inspection might be even worse. Whereas the industry-focused MEPs clearly state that traditional  rightsholders are the main source of creative value, this other faction wanders into even murkier waters where they draw ill-informed and potentially catastrophic conclusions for copyright reform.

One area in which this group provides an opinion is on the ancillary right for press publishers. They seem oblivious to the extent of the incredible impact of online access to news, which has been greatly enabled by web search that is flexible enough to look for concepts and associations rather than exact phrases or titles. As proven by research, aggregators help news outlets gain a larger audience. MEPs such as Constance Le Grip (EPP, France) do not understand (or chose not to see) that the business of selling newspapers with a bundle of interesting and boring stuff packaged with ads is over—and won’t be back. It’s not the aggregator’s fault that contemporary readers are choosing better and more targeted mechanisms to search for and receive information and knowledge.

The upload filter concept is equally misunderstood to the point where MEPs fall into the trap where they think that such a mechanism is needed to combat the terrible problem of “fake news”. Virginie Rosiére (S&D, France) believes that content filtering is the same thing as taking down pictures found offensive by particular social media users. Mary Honeyball (EPP, UK) argues that any algorithm put in use makes a platform “active” as opposed to a “passive” online archive (perhaps she would be surprised to learn they use algorithms, too). Her best advice for us is to treat the internet like we treat the analogue world. This is a logic defying approach that we thought we had debunked around the time when Pluto stopped being called a planet for a while.

The 21st century believers

Fortunately there are some JURI members who grasp the revolution that digital technology and the web has brought to creation and access to culture, knowledge, and information. They see that in this ecosystem the value is generated by all actors, including users.

Julia Reda (Greens/EFA, Germany) and Lidia Geringer de Oedenberg (S&D, Poland) both see the Commission’s proposal as unambitious and ill-suited to address necessary changes to copyright that can promote the Digital Single Market while protecting users rights. They understand that even though creators and rightsholders bring much value to the market, there is another type of value created when information is sorted and aggregated. A different type of value emerges when users generate their own content based on somebody else’s creation.

These types of value are functional rather than replaceable, meaning that a news outlet will not generate the same type of value as an aggregator, because well… it is not an aggregator. And a movie studio will not have the same content marketing outreach as do users who create memes based on the original – because it is not a user. But all of these types of value creation are desirable if Europe is support the full potential of the market.

The battle goes on

On the of spectrum of MEPs explored above, Rapporteur Comodini is a 21st century believer who tries to reconcile these different understandings of the source of value in today’s world. It is very possible that the clash will be settled in the heads of those who are now silent and will soon make up their mind which narrative appeals to them most.

It is important to remember that the battle of these narratives will define the future of the copyright law, and the future of the Digital Single Market. At stake is whether Europe will be able to harness technology in a way that does not break the internet and helps creativity grow. This is the right path ahead, lest we fall back into the worn out model where users are mere spectators of the cultural and creative show run by the entertainment industry and publishers. And we will be free to look at it through the “portable tv” of the broken internet.

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