You may have heard that the EU is currently reviewing copyright in order to ensure that it ‘stays fit for purpose in this new digital context’. While the public consultation on this topic is still running, EU officials have started to give some insights on how they see the digital environment that needs to be served by new copyright rules. In recent weeks officials at the European Commission’s Internal Market and Services Directorate General (which is in charge of copyright policy) have been passing around this diagram of what they call the ‘Internet Ecosystem value tree’:
The ‘Internet Ecosystem value tree’ according to the European Commission.
Apparently this Internet Ecosystem value tree is rather important in how the Commission sees the relationship between copyright and the digital environment. This is expressed in the concerns raised about the ecosystem’s ability to sustain the value tree. Commission officials are pointing out ‘that the roots need to be fed for the tree to keep blossoming’ and that this needs to happen via a ‘transmission belt of Euros’ (which seems to refer to the € Licenses arrow in the diagram above).
A transmission belt of Euros
Now anyone is entitled to their own opinion and views of the world, but it is alarming to see that the very people who are in charge of formulating the rules that will shape our use of the digital environment for years to come are basing their ideas on a rather simplistic model of the internet, that looks at the internet as if it was yet another push medium in the the line of newspapers, radio, CDs or television.
The Internet Ecosystem value tree implies that the primary purpose of the internet–like that of all distribution channels that came before it–is to channel content from producers (the Authors/Artists/Audiovisual and Record Producers/Newspapers and Books Publishers/Broadcasters/Other Creative Industries in the schema above) to a separate group of people called Consumers. In exchange for this the Consumers will pay Distributors and Internet Platforms for their services, which is then augmented with advertising income. Distributors and Internet Platforms use parts of their income to pay for the content.
What the Commission implies here is that if this transmission belt of Euros does not work, then the entire internet ecosystem will die off and as a result any public policy aimed at protecting the digital environment must ensure that content producers are paid.
The internet is not a television
It should be clear to pretty much anyone who has used the internet that this description does not adequately describe how we interact with content online. The internet is not a simple content delivery mechanism (such as television) that provides a linear sales channel from producers of content to consumers. While this is one (admittedly important) function of the internet, it is not the only one.
The internet as we know it today fulfills many different functions, most of which do not even appear in the Commission’s diagram. These include such elementary things like email and messaging, online discussion groups and communities as well as projects and platforms such as Wikipedia and GitHub, and also online offerings by public educational and cultural institutions. The internet enables new forms of research (such as text and data mining) and has generally helped to increase collaboration between researchers and spread the results of research.
None of these and other uses of the internet rely on content produced by the creative industries in the same fundamental way. However they do play an important part in explaining why consumers (and organisations) pay for internet access and they must be factored in when trying to develop policies that will shape how we can use the internet.
Look at the forest instead of the tree(s)
Trying to understand the internet by looking at the European Commission’s Internet Ecosystem value tree is like trying to understand a forest by looking at one specific tree. Even worse, as any scholar of biology will be able to tell you, intervening on behalf of one specific type of tree without taking into account the effects on the rest of the forest will almost certainly damage the forest as a whole. Unfortunately it appears that this is exactly the approach that the Commission is intent to pursue: promoting the interests of one particular tree (content producers) even if this comes at the cost of killing or damaging the rest of the forest.
So what is at risk here? There are a number of functions and uses of the internet that are not well-served by the dogma of 20th century-style copyright policy which consists of more and longer protection, limited user rights and ever more enforcement.
Projects like Wikipedia, uses such as text and data mining, online access to cultural heritage and educational resources, and transformative use of the internet do not follow the same logic as the traditional content industry value chains. Here limited user rights and long terms of protection become problematic and increased enforcement translates into chilling effects.
At the same time all of these types of uses are exactly what makes the internet special and drives its potential to accelerate innovation and to democratize access to knowledge, tools and culture. The internet is the first mass medium that is simultaneously enabling market driven uses, uses that are driven by public policy objectives (such as education or access to culture), and uses driven by people’s desire to create, collaborate and contribute to the commons.
Any policy that aims to regulate the internet (and that includes copyright policy) needs to take this diversity into account and provide room to support these other crucial uses. This will inevitably lead to situations where there are conflicting interests, but these cannot be solved by simply focusing on one particular use of the internet as the Commission is proposing with its Internet Ecosystem value tree.
No more one size fits all
We need a departure from the one-size-fits-all approach of traditional copyright towards a system that is more flexible and better adapted to the needs of all stakeholders. This includes professional content creators and distributors who need adequate levels of protection for their works, educators and cultural heritage institutions who need more freedoms to do their work in the digital realm, and also end users and researchers who should not have to fear that making use of the internet will turn them into copyright infringers.
A first step towards ensuring that copyright positively enables all of these outcomes would be to increase the scope of user rights (through updating the existing list of copyright exceptions) and to make copyright more flexible (through the introduction of a fair-use type exception). In the long run this will mean simplifying the way copyright works, and ensuring that copyright protection is only granted where it is necessary (or wanted by the creators).
Looking after the interests of all trees in the Internet Ecosystem is also in the interest of the particular value tree that the Commission seems to care so much about. If the copyright rules continue to hinder those online activities that are not primarily motivated by a transmissions belt of euros, copyright will lose legitimacy and be detrimental primarily to those who rely on the protections offered by copyright law.