The sneaky elision at the heart of European Copyright Reform

Blog (2015)

Richard Mollet, 11th November 2015

Reading a leaked policy document from the European Commission feels a bit like taking a peek at someone’s diary.  There is a frisson to be gained from knowing you are reading something that the writer (probably) doesn’t want you to know and there is a sense of getting an insight into the deepest thoughts of the policy authors.  So last week’s offering – the draft of the Communication “Towards a Modern Copyright Framework” – can be taken as a pretty good reflection of where the Commission’s thoughts are right now. 

The PA has long been a vocal fan of the Digital Single Market programme – as a digital and international sector it would be perverse not to be, but it is nevertheless disappointing to see such worrying chain of logic at the heart of the policy.  It comes in the opening three paragraphs: “People often expect access to digital content on multiple devices, anytime and anywhere in the single market. When this does not happen, they find it hard to understand why.  EU copyright laws need to be adapted so that all market players and citizens can seize the opportunities of this environment.” 

Did you see what they did there?  In one breezy phrase the Commission manages to lay the blame for both the lack of universal access and consumer confusion squarely at the door of copyright law.  There is no hint whatsoever that perhaps other factors might play a role.  No thought, for example, that perhaps technical or commercial barriers prevent digital harmony; no concept that consumer education may need to be stepped up; no notion that the Commission itself could perhaps play a part in helping develop that consumer understanding. 

Nope, from the towers of the Berlaymont life is far simpler than that.  There is a problem and it can be cured through copyright.  Or in other words, now I know that everything is a nail I can use my hammer.

The angst over apparent confusion turns up again in the discussion on exceptions in Section 3.  The situation of fragmentation, the Commission opines “seems to be posing problems for those exceptions that are close related to research.” Now, “seems” is an interesting word.  It is a synonym for “appears”, itself a contradistinction to “reality” and is a far weaker assertion than would have been the use of “is”.  The Commission is not on solid ground here and it shows.  It goes on to weakly think that these differences merely  “risk acting as a brake on educational trends”, again deploying a very hedged terminology. 

Not only is the case weak but it is heroically contradicted by its own footnote.  The document guides us to a 2014 study of higher education which shows 82% of institutions offering online courses and 40% having over half of students engaged in e-learning.  Now, for a set of political institutions which attract a voter turnout of only 43% these should look like Big Numbers.  Far from posing a risk to the development of online education the existing copyright framework is actually doing a pretty good job. 

The Communication strides on with its blanket assertions.  We are told that “the lack of a clear provision on text and data mining for scientific research purposes creates uncertainties in the research community…[which]…harms the EU’s competitiveness and scientific leadership.”  The reasonable reader could be forgiven for screaming “show me the evidence” at the screen; or “do you know what, sometimes life can be uncertain”.  But in Brussels no-one hears such things.  So we are left with a policy statement that the Commission will take action to ensure that the framework on exceptions is “effective” without the least bit of effort being put into finding out if it is currently ineffective. 

As a final thought, in a week in which the UK Prime Minister set his stall clearly against the principle of “ever closer union” as enshrined in the Lisbon Treaty, it will be interesting to see what No 10 makes of a policy document which has as its goal a “more European copyright framework.”  This statement is somewhat mitigated by a following clauses that the Commission will “inject more single market and where warranted, a higher level of harmonisation”.    That’s a pretty big needle hovering over the arm of the creative industries.  Being all for the Digital Single Market is all well and good, but if that actually entails – and it could – replacing our current well-operated and well-understood system of exceptions and licensing with an entirely new set of rules, then it begins to look like a tension at the heart of European policy.