Challenges and problems of EU consultation on copyright

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The Commission should not impose its own objectives and agenda during the consultation period.
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This post was written by Agnieszka Vetulani-Cegiel. 

The European Commission is willing to cooperate with interested parties (i.e. civil society, interest groups, stakeholders, other entities). The open attitude of the Commission is demonstrated by the inclusion of these parties in the policy-making process, and in work on legal mechanisms. This situation is beneficial to both sides. For the interest groups, it is an opportunity to participate in the policy-making process and to influence EU policies through advocacy and lobbying. For the Commission, it is a way to learn about stakeholders’ views, to earn their support for its actions, and to obtain input to possible legislative proposals.

A big debate on the transparency of the EU policy-making process was triggered by the issuing of the White Paper on European Governance. As a result, since 2001, a range of standards and principles covering the transparency of the policy-making process—as well as relations with ‘interested parties’—has been adopted. Also, the Transparency Register, the Register of Expert Groups, and the Comitology Register were established.

The Commission recently issued a new document called the Better Regulation Guidelines. The Better Regulation initiative aims at making EU action more effective by ensuring that “policy is prepared, implemented and reviewed in an open, transparent manner, informed by the best available evidence and backed up by involving stakeholders”. The Guidelines cover the whole policy cycle: from policy design and preparation, to adoption, implementation (transposition, complementary non-regulatory actions), application (including enforcement), evaluation and revision, and include inter alia Guidelines on Stakeholder Consultation (Chapter VII).

The objective of the Stakeholder Guidelines is to complement and further define the scope of the General principles and minimum standards for consultation set in 2002. It is worth mentioning that a lot of attention has been paid to the mapping of different categories of stakeholders taking part in the EU consultation. It is stated, also, that “open, internet-based public consultation” is mandatory for initiatives with impact assessments, evaluations, fitness checks and Green Papers. The consultation needs to run for at least 12 weeks. Moreover, the Guidelines provide that stakeholders must be enabled to give feedback on the following aspects: roadmaps for evaluations and fitness checks (4 weeks), roadmaps, inception impact assessments (indication of time to be provided after publication), draft delegated acts (4 weeks), draft implementing acts (4 weeks), legislative or policy proposals adopted by the College and, where applicable, the accompanying impact assessments (8 weeks).

Commission consultation on copyright

Copyright provisions are important to foster innovation and creativity, as well as economic growth. These provisions regulate the legal position of various parties: rights holders of copyrights and related rights (such as authors, co-authors, publishers, performing artists, phonogram producers, and broadcasters), users of the protected content (such as consumers of immaterial goods, libraries, and archives) and other entities (such as collecting societies, cable operators, and internet service providers). The copyright rules also cover aspects related to exploitation of the protected content within different creative sectors. The digital revolution, however, poses new legal challenges to exploitation of copyrighted material, which in turn calls for a change of EU copyright law.

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For a few years now, the European Commission has been working on a reform of EU copyright law. Since 2013 it has run a range of public consultations, including the following: stakeholder dialogue “Licenses for Europe” (2013), consultation on the review of the EU copyright rules (December 2013 – March 2014), and a set of studies (2013 – 2015). The reorganization of the Commission in 2014 brought further announcement on the need to modernize EU copyright law in response to the digital revolution, and the need for creating a digital single market. In the Digital Single Market Strategy for Europe (6.5.2015) we read that the Commission will make legislative proposals on following issues: (i) portability of legally acquired content, (ii) ensuring cross-border access to legally purchased online services while respecting the value of rights in the audiovisual sector, (iii) greater legal certainty for the cross-border use of content for specific purposes (e.g. research, education, text and data mining, etc.) through harmonized exceptions, (iv) clarifying the rules on the activities of intermediaries in relation to copyright-protected content and, in 2016, (v) modernizing enforcement of intellectual property rights, focusing on commercial-scale infringements (the ‘follow the money’ approach) as well as its cross-border applicability. In 2015 the Commission continued to consult by organizing roundtable discussions with stakeholders representing creative industries, service providers, institutional users and consumers – these discussions were aimed at exchanging views on territoriality, text and data mining, and access to knowledge and culture (January – February 2015), as well as a public consultation on the review of the Satellite and Cable Directive (August – November 2015). Now, additional public consultations have been opened on the regulatory environment for platforms, online intermediaries, data and cloud computing, and the collaborative economy (24 September 2015 – 30 December 2015).

Implications of the consultation process on legal provisions

The stakeholder consultation process is very important, at least in terms of outputs. While it is good to follow fair, formal procedures on running the consultation in accordance with principles, standards and guidelines, it is foremost about soliciting useful feedback in order to craft quality legislation. Some examples of past consultations in the area of copyright (see A. Vetulani-Cęgiel, 2015) show the importance of a proper and balanced stakeholder consultation and its consequences on the legislative proposals for copyright directives.

One example is Directive 2011/77/EU amending Directive 2006/116/EC on the term of protection of copyright and certain related rights. The Commission’s legislative work on the proposal for a new directive took only a few months (February – July 2008). This did not leave much room for opponents of the proposal to lobby against this initiative, especially since the Commission did not contemplate any further consultation. The specific consultation, run before the announcement of the legislative work, was very narrowly-tailored. It consisted of bilateral consultations with performers’ associations and the recording industry (2006 – 2007) and of studies, both independent and prepared for the benefit of groups representing rights holders (2006 – 2007). The Commission had also opened public consultations on the review of the EC legal framework in the field of copyright and related rights (2004). However, these consultations were not dedicated to the issue of the term of protection of copyright and related rights—their scope was much broader. Moreover, the Commission declared that “the term of protection for phonogram producers does not cause particular concern since the term has been harmonised in the Community”. The scope of both the proposal and the directive reflected the priorities of the phonogram industries and music artists, as the legal instrument provided for a term extension as well as additional measures beneficial to musicians. The narrow scope of the consultation made it impossible for opponents to actively participate in the debate and to present counterarguments. This, together with the controversies over the scope of the proposed legal instrument, proved that the entire Commission initiative to extend the term of protection of sound recordings was from the very beginning designed to benefit only the music sector (phonographic industry and, mainly, famous artists).

Another example is that of Directive 2012/28/EU on certain permitted uses of orphan works. Here, the consultation process was much broader compared to the previous case. Most of the consultations took place within three advisory groups, namely the High Level Expert Group (HLEG) on Digital Libraries – Copyright Subgroup (2006 – 2009), the Working Groups on Sector-Specific Guidelines on Due Diligence Criteria for Orphan Works (2007 – 2008), and the Reflection Group (or “Comité des Sages”) on Bringing Europe’s Cultural Heritage Online (2010 – 2011). Apart from this, stakeholders could also participate in the debate within the following initiatives: the Stakeholders’ Seminar (2007), the Green Paper on Copyright in the Knowledge Economy (2008), the Public Hearing on Orphan Works (2009) and on a bilateral basis (2009 – 2010). The Commission proposal was mainly based on recommendations of advisory groups, especially the HLEG on Digital Libraries. In general, it foresaw the possibility of using orphan works within the realm of cultural institutions. In practice, the scope of the proposal was a result of interests at stake (especially of those that were represented in advisory fora), which was mainly cultural institutions, who called for the lawful use of orphan works and, to some extent, right holders, who were primarily against the idea. One of the weakest points in the consultation process was the absence of groups representing consumers of intellectual property, and also users of the protected content. The result was that the legal instrument did not cover the possibility of using orphan works by entities other than cultural institutions.

The legislative instruments presented by the aforementioned cases raised many controversies. The main problem was the narrow scope of the provisions, which were limited to specific beneficiaries. Also, the consultation processes had weaknesses. One problem was an inadequate representation of interests during the consultation process. Such a situation led to an unbalanced output of consultations which falsely indicated the social demand for a legislative change.

New consultation challenges. Where is the problem?

The Commission consultation in the area of copyright—which has been running since 2013—has already raised a number of controversies. For instance, objections were raised to the stakeholder dialogue “Licences for Europe”, conducted in 2013. In particular, parties pointed out that “a process with an already predetermined outcome” cannot be understood as a “stakeholder dialogue”.

Another group of critiques concerns the current Commission public consultation on the regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy. The main objection was the fact that critical questions dealing with the creation of new copyrights for publishers have only been open to rights holders, while European citizens and relevant stakeholders were not permitted to answer those questions. It was further underlined that the Commission should not deliver their scheduled Communication on Copyright on 9th December, because  this would have been before the end of the open consultations (see letters to the Commission and to the Members of the European Parliament).

Some also complained about how the questions were presented in the questionnaires. For instance, in the consultation on Directive 2010/13/EU on audiovisual media services “A media framework for the 21st century”, the questionnaire asks whether certain provisions are “relevant, effective and fair”. The problem with this question lies in the meaning of “fairness”—which is quite unclear, and therefore leads to subjective answers. There are similar concerns in relation to the now open Commission consultation on platforms, online intermediaries, data and clouds. In many cases it is not quite clear what the Commission is asking about, and what are the implications of some questions (especially taking into consideration a high level of complexity of the subject matter). That is why C4C has created an online consultation platform that makes it possible to answer the Commission’s questionnaire. The added value of this platform is an “answering guide” accompanying each question that provides an explanation and relevant background to the question.

We hoped that with the new Stakeholder Consultation Guidelines all or most of the existing problems could have been solved, particularly with the introduction of mandatory internet-based open public consultations that underlined the need to assure a balanced representation of interests. Nevertheless, some problems still remain.

The new Guidelines on Stakeholder Consultation strengthen the formal requirements on the consultation process. However, taking into consideration the concerns about the qualitative scope of the Commission consultation in the area of copyright, one could ask about the underlying motivation: is the Commission simply following the formal process imposed by the new Stakeholder Consultation Guidelines, or is it truly interested in engaging meaningfully with stakeholders to prepare quality, balanced legislative proposals?

Undoubtedly, in order to have a useful consultation process, the Commission should do the following: ensure the proper balance of interests, adequately identify the problems in the area of copyright, provide clear questions to be answered by stakeholders, and take into consideration answers from all interested parties. The Commission should not impose its own objectives and agenda during the consultation period, and should continue to strive for a high level of transparency overall. The consultations are incredibly important to developing a modern copyright law that takes into account the interests and needs of both rights holders and the public. It is, therefore, necessary to actively participate in this process.

 

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