The Case for Copyright Reform

Richard Mollet, 23rd February

Those people eagerly advocating reform of copyright need to raise their game in terms of getting evidence to back up their opinions.  Those who maintain that urgent reform is not required should hold their nerve and wait to see what proposals are actually made.

Stand in the middle of Brussels and you can almost hear the sound of policy-trains leaving the station as the legislative-gears creak into action. The impetus behind the Digital Single Market reform programme of the Commission is growing daily.  Commissioner Oettinger is holding a series of roundtables to better understand the copyright agenda and the complementary (not competing, as some would portray it) needs of creators, businesses and consumers; the Green Party is writing reports undermining the entire edifice of copyright, and everyone is girding themselves for the next few months of debate ahead of the publication of a White Paper on the Digital Single Market in May (probably) followed by a paper on copyright reform in September.

Most of the clever money seems to be on the Commission coming up with some sort of package of legislative reform and, if previous experience is anything to go by, it sounds like a safe bet given the well-earned reputation Brussels-bureaucrats have for developing new statutes.  In the face of this apparent inevitability of reform it is understandable many are already considering what change they could live with.

But hang on a minute – in fact, quite a bit longer than that.  Usual though it is for the Commission to act, it is not impossible that it should decide not to, particularly if presented with a compelling case against doing so.  The minute that the case for the status quo is conceded by the very people who have the interest in maintaining it, the floodgates to damaging reform spring open.  The question of extent of reform then becomes the only question to answer, the debate on “whether” to reform being lost in the enveloping waters.

So it is imperative to try and gauge the Commission’s actual appetite for change and here there are mixed signals.  President Junker’s work programme was announced with some fanfare in November 2014, wherein he stipulated the need for a legislative package in a number of areas which, notably, included copyright reform.  However, others in the Commission have sounded a more cautious note, particularly when it comes to pace.  In confirmation hearings before the Parliament, Commissioner Oettinger even noted that if it took 2 years to get things right it was worth waiting.  Officials, too, can these days be heard musing that “perhaps there are non-legislative solutions to look at.”

The patron saint of considered reform in this Commission is the Dutch Vice-President Frans Timmermans.  Unsurprisingly his confirmation hearing in October was unheralded in the mainstream press, but it is worth reading both for what he had to say on the principle of reform and the quality of the reform process.  Timmermans stresses the importance of “subsidiarity” – the EU principle that EU-wide action is only required when Member States could not come to a solution to a problem themselves.  He says that “the onus is on the Commission in the first instance to examine and explain in understandable terms exactly why its proposals are needed and how they comply with the principle of subsidiarity.”

The operative word in that quote is “exactly”.  When applied to copyright, we are yet to hear from the Commission an explanation as to “exactly” why it could be important for every Member State to have precisely the same copyright law, and “exactly” what is missing from the current framework which is so holding up the digital single market.

Timmermans also has his eyes open on the evidence underpinning proposals: “only top quality, evidence-based impact assessments can lead to proposals that deliver the results we are striving for…the Commission should never take a decision where the substance is not included and tested in the impact assessment…and should not adopt its proposal before the impact assessment has been completed”. So there is at least one, very powerful, advocate of the need for caution in policy making.

There is a second to be found in the UK Government.  As Ministers have been keen to stress in recent weeks, the British Government’s insistence on evidence-based policy making has not been diluted, in spite of what signals from the Prime Minister’s Office seemed to suggest last month.   (And should the occupants of Number 10 change in May, we have a similarly very strong endorsement of the need for evidence-backed reform from the Deputy Leader of the Labour Party, Harriet Harman.)  This view could even be replicated in other Member States.

So from a British point-of-view, it would appear that we have two very strong safeguards against any attempts by the Commission to foist ill-thought through, disproportionate reform proposals into the mix.  First, our own national Government’s strong insistence and, second, the remarks of Timmermans himself.  Before jumping on board the bandwagon full of people clamouring for, or at least accepting, reform, we should hold our nerve for a while longer yet.