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Richard Mollet, 02 October 2014

 “Copyright rules should be modernised, during the first part of this mandate, in the light of the digital revolution, new consumer behaviour and Europe’s cultural diversity”….so reads the instruction given by European Commission Jean-Claude Juncker in his mission letter to Vice President Andrus Ansip, the former Estonian Prime Minister tasked with developing the Digital Single Market brief in the new Commission.

Rightsholders across Europe have two responses to this the first of which is “here we go again”.  The last Commission spent two years conducting a thorough investigation into the efficacy of the copyright acquis.  This involved the parallel tracks of the Licences for Europe Stakeholder Dialogues and the “desk-based” research undertaken by the Commission into the legal and economic situation.

The outcome of this process was the draft White Paper which whilst never published was, like all documents worth a read, rapidly leaked.  It is to be greatly hoped that the Vice President and Commissioner Oettinger, who has specific responsibility for the Digital Economy & Society, will spend some time studying the White Paper before setting off to create a brand new one.

Whilst there is much to disagree with in the “non” White Paper it does have the merit of being a balanced reflection of the detailed discussions which both rightsholders and our protagonists in the copyright-erosion lobby spend some time debating.  Now, I am as much a fan of the Eurostar and central Brussels meeting rooms as the next man, but there should surely be some sort of limit to how many times we need to have the same conversations.

The second response from rightsholders is to ponder exactly what President Juncker means in his statement.  The logic appears to be that because some aspects of the world have changed the law should change too.  This is a familiar trope in the copyright debate.  It is wrong for two reasons: first it assumes that new technology cannot be accommodated by the present copyright rules.  In the Licences for Europe dialogues this belief was exposed as a fallacy time and time again.  It was regularly asserted that text and data mining, user-generated content, cross-border acquisition were impossible under the copyright rules.  It was with the same regularity that rightsholders were able to show that actually these practices were being very well dealt with licensing agreements and, what is more, that the flexibility of these arrangements was delivering more both to users and creators than the blunt instrument of law ever could.

The other problem with the mission statement is that it implies whatever is possible should be legal; that if technology allows a consumer to do something which is currently impermissible then it is the law that it is wrong, not the behaviour.  Up to a point we can agree with this.  It is plain daft if a consumer wishes to, for example, link a music track with a wedding video and put it on YouTube that they are breaking the law (happily they are not because YouTube is licensed).  But this does not lead to giving carte blanche to any technological development to become legal.  The obvious example is peer-to-peer file-sharing.  Where copyright owners’ works are being freely distributed to a global audience on the internet without the permission or recompense to the artists, it surely cannot be the wish of President Juncker, ex Vice-President Neelie Kroes or anyone else to change the law to allow this to be done freely.  I anticipate only the rapidly diminishing band of Pirate Party MEPs to find disagreement with this sentiment.

So the instruction to modernise the law in line with technology development is crying out for some kind of caveat and qualification.  The PA, together with our partners in the UK’s Alliance for Intellectual Property and the Federation of European Publishers, now begin the task of providing European policy-makers with ideas on where that line should be drawn.

So once having read through the deliberations of the previous Commission and engaged with the companies and creators who contribute to making the EU one of the best places on earth to make and enjoy creative works, we hope the new Commissioners will come to a number of conclusions:

·         European creative businesses do not require protection; they require support.  We are all more than capable of competing and winning in the global market place, be that in publishing, music, film, computer games, sports rights or television formats.  We can only do that if the rules of the game are fair and respected by all.  This means support for intellectual property, ensuring that competition law is upheld, not permitting imbalances to emerge.

·         The barriers to a digital single market are not to be found in the intellectual property regime.  There are other, more complicated, reasons why – for example – a Maltese cannot easily acquire a Lithuanian novel in Italian translation from a Portuguese retailer whilst sitting on a beach in Croatia.  Some of these are commercial, others are cultural, and often it’s a blend of both.  Political fiat will not create markets.  The Soviet Union tried that approach.  It failed.

·         European publishers are capable of delivering enormous long-term value to the EU in terms of underpinning academic research and educational excellence and driving up literacy.  These are public goods and wider society can and should expect publishers to help provide them.  However, such benefits cannot come for free.  Quality, unfortunately, comes at a price; authors and creators are consumers too (of things like food, clothing and heating) and deserve and need to be rewarded.  Any new official, MEP, Commissioner imagining that creative content should be given to all needs to have a careful think about the wider economic implications.

Ultimately, our message to the new Commission and Parliament is this: look, Europe is really good at this creativity thing.  Other parts of the world aren’t bad either but Europe is definitely up there.  The next five years of Commission policy really can determine whether we as Europeans maintain and build on our centuries of excellence, or find ourselves diminished as the valuing and championing of culture and learning gives way to the fetishising of instant gratification and communication.  The key to success lies in harnessing the power of the digital revolution to our creative and culture endeavours.  Make the internet, social media, search, broadband and all the rest of it the tools of our trade.  Do not make culture a subset of technology.  By placing copyright under the wing of digital policy the Commission may be making a mis-step.  We hope, in time, it will see things should be the other way around.

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