Copyright reform is one of the most vividly-discussed topics in European Union in last few weeks. After the leak of the European Commission’s communication, the political parties did not wait long to take a stand in the debate. Socialists and Democrats opted to listen instead of presenting their own ideas, and organized a conference on limitations and exceptions, and geoblocking. The event was held in the Parliament on 19th November.
On the other hand, the European People’s Party (EPP Group), the largest party in the European Parliament, issued a rather uninspiring position paper on copyright. Many wondered whether the document would present a more progressive stance on copyright reform than what we’ve seen so far from the Commission. And the answer is simply: No.
On an ideological level, the document starts with a really promising message and tone. The EPP Group claims that the most important issue is “a balanced approach on copyright” to accommodate needs of creators and consumers alike. We cannot agree more. But after stating this introduction, the EPP focuses only on creators’ rights, and presents their ultimate goal as ensuring the growth of the creative sector, leaving the issue of public domain out. It’s even more alarming that according to the EPP the only way to preserve cultural diversity in Europe is “ensuring a high level of copyright protection”.
In one sentence, the EPP Group advocates for “a copyright system that promotes investments, the efficient functioning of value chains between authors, creators, performers, producers, publishers, journalists, intermediaries, service providers, consumers and users”. Apart from the obvious fact that culture cannot be reduced to value chains (or value trees for that matter), it is impossible to understand what they mean when they mention the needs of consumers and users, since these stakeholders have not been well represented in considering a balanced copyright reform.
We read that “the objective should be to put in place innovative, flexible, simplified and consumer-friendly licensing schemes for copyrighted works which should be guided by the principles of contractual freedom and fair remuneration for right holders”. This objective seems to revert to the tired idea that licensing can solve all of copyright’s problems.
Reforming the system by preserving the status quo?
The EPP group seems to be in favor of preserving the status quo and does not even attempt to work toward a Digital Single Market. Instead, they accept the current reality of 28 digital markets with different systems of private copy levies and copyright exceptions and limitations (education and research are the only areas where EPP can consider full harmonisation, but only under very strict conditions).
From the EPP paper we learn that such an anti-harmonisation approach is an answer to “expectations and specific situations emerging from domestic markets”. Clearly the issue of addressing the needs of a more integrated EU market—where cross-border Internet transactions are a reality for increasing numbers of citizens—was not perceived to be important enough to warrant any intervention. It seems that the EPP’s ideas for reforming the copyright system boils down to preserving the status quo.
A good example of the EPP’s feeble approach to copyright reform is the provision on ‘Unjustified geoblocking’. While it is recognized as an important issue to address, the report then goes on to say that it shouldn’t be addressed because “abolishing the territorial principle […]would harm European cultural diversity”. For anyone expecting copyright reform to really focus on the challenges of the digital environment—including adopting expanded and harmonised exceptions and limitations—the EPP position paper is a big disappointment. Instead, they simply rely on licensing as the answer for all copyright’s ills.
Let’s also take a look at how the paper discusses the issue of text and data mining. For the EPP, the only solution is to allow “text and data mining of lawfully-acquired content under market-established licensing terms”. Up until now everyone following the copyright reform debate was pretty sure that the conversation would be about how to expand the rules to provide an exception for text and data mining. Most stakeholders seem convinced that the demand from scientists to engage in text and data mining research is really high. But the EPP’s paper says the opposite, claiming that “the demand doesn’t currently justify an exception (for TDM)”.
The service provider’s liability—which is also a hot topic in the EU with the ongoing public consultation—the EPP “is in favor of a reassessment of the liability of service providers with regards to copyright infringements and the exercise of due diligence and duty of care throughout the creative process”. In other words, the EPP wants to make it more difficult for platform providers to host content from users, a move which has the potential to limit the way users can express themselves online. Unfortunately the EPP paper does not refer to any concerns related to notice and takedown procedures, or the possibility of strict liability regulation resulting in censorship of online content by providers who fear this type of liability.
Of course there are some positive provisions in the EPP’s, but these aren’t as progressive as what we’ve seen in Reda’s report, and even the Commission’s approach. The EPP declarations are also blurry, as one “call[s] for establishing more legal certainty in the framework of copyright for libraries and e-books”. Asking stakeholders and member states to create more legal certainty is a pretty comfortable (and not very helpful) approach. It allows the EPP not to take any stand on the issue on the European level, while still saying there is a vague problem to solved. The same applies to the portability of content and interoperability of formats: while recognizing need for changes, their position paper does not provide any specific solutions.
If the ideas of the EPP group are to be implemented, Europe will be left with an even more strict and overregulated copyright legal framework than it has right now. It is interesting that the position paper, which is aimed at shaping copyright reform, does not mention the issue of public domain even once. It also never brings up the discussion about shorter terms of copyright protection. We’re all still left wondering how anyone can claim that copyright is about balance?