In Copyright Reform: Unlocking copyright for users COMMUNIA asks several civil society groups, EDRi among them, for their view on the current copyright reform: what are the biggest hopes, the biggest fears and the concrete plans to #FixCopyright.
Listen to what Diego Naranjo, EDRi’s advocacy manager has to say and join the discussion now.
All contents in this video have been released into the Public Domain via a CC0 dedication.
Music (in order of appearance):
“I’ve got two 12-year-old criminals in my kitchen and that can’t be right”
(Jonathan Worth, professional photographer)
The first round of debates surrounding the copyright reform in the European Parliament are reaching their last stages. Pavel Svoboda’s report on Intellectual Property Right (IPR) enforcement was published on 19 May. The report contains a mixture of negative and positive elements which need to be taken into consideration.
Among the negative aspects, we find simplistic statements, for example that IPR infringements discourage growth (Recital D). In reality, the situation is far more nuanced. For example, while the slow adaptation of the music industry to the digital environment has driven a lot of infringements, the market has adapted. Income from concerts is, in fact, growing in the last years. The omnipresent mantras of “follow the money” and “commercial scale” are now happily together in the same paragraph (paragraph 3), still without a clear definition of what these concepts imply. Nobody has sought to define “follow the money” while even the European Commission has said that its 9-year-old definition of “commercial scale” is probably inadequate.
Then, all sprinkled through the Report, there is positive commentary to the generally lamentable work of the Observatory on IPR infringements. Taking into consideration the numerous flaws of much of the output of the Observatory, the gratuitous fawning and, even worse, the calls to use its work to build upon it a new “Intellectual Property” legal framework, seems misplaced and ill-informed to say the least. There is also a mention of the “lack of awareness” of the young generation of the importance of IPR infringements, referring to a study which does not actually say that. It also seems to ignore the results of the copyright consultation where thousands of users called for a Intellectual Property (IP) framework adapted to the 21st century. Finally, the call for “cooperation” of the main Internet stakeholders, which sounds too much like the same old call to privatised law enforcement and the undefined call to “follow the money”.
Among the positive elements, the Report presents calls for balances between fundamental rights and privatised law enforcement (paragraph 10), although it is not clear what this call actually means. There is also the support for attractive licit offers to combat unauthorised use of content (paragraph 37) and for a “comprehensive legal framework to combat IPR infringement adapted to the online environment, with full regard for fundamental rights and freedoms, fair trials, proportionality and data protection” (paragraph 57). Finally, the Report asks for measures “guaranteeing a balanced approach representing the interests of all stakeholders involved, and, in particular, of consumers and their right of access to content” (paragraph 58).
The Plenary of the European Parliament will vote on the Report in the week beginning 7 June.
Julia Reda’s Report on the implementation of the so-called InfoSoc Directive (one of the foundations of EU Copyright law), on the other hand, has been delayed and is now going to be voted in the European Parliament Committee on Legal Affairs (JURI) on 16 June. The recently launched copywrongs.eu website contains a good summary of concrete proposals on the harmonisation of exceptions and limitations and for a modernised EU Copyright framework. This new framework should be one where the vast majority of citizens are not considered as offenders of intellectual property rights for doing things that seem (and are) perfectly normal, such as private copying or re-using copyrighted material for parody purposes. The copywrongs site also offers a free user-friendly tool developed by EDRi observer La Quadrature du Net to call Members of European Parliament (MEPs) to let them know your position on the debate.
Given the immense disproportion between rightsholders’ lobbyists and civil society advocates, this tool will help to amplify citizens’ voice. Since there are only a few days before the vote, the time is to get informed via our handbook on copyright and via copywrongs.eu and to take action now for a modernised EU copyright framework!
Among the very energetic but narrow group of critics attacking the European Parliament’s draft report on the implementation of the Information Society Directive (2014/2256(INI)), the Spanish collecting society SGAE has been one of the most vociferous. In a position paper sent to Parliamentarians, SGAE declares “inadmissible” the mere idea of debating copyright reform and makes the rather baffling claim that rapporteur MEP Julia Reda’s goal is to abolish the copyright regime and authors’ rights. In order to support this, SGAE quotes a study by the Office for Harmonization in the Internal Market (OHIM) which overestimates the employment and growth created by cultural industries.
Regarding the European Commission’s public consultation on the review of the EU copyright rules, SGAE says that the results are not valuable because many citizens felt that their views were sufficiently represented by a standard answer and chose not to wade through 74 technical copyright questions spread over the 36 pages of the consultation. They also claim that the single answer from the European Grouping of Societies of Authors and Composers (GESAC) represented “more than a million authors and composers”.
Later on, SGAE misunderstands the rapporteur’s proposal and states that it is unacceptable to “suggest” that works belonging to public entities should stay outside the copyright regime and that that would be a violation of author’s rights. However, MEP Reda clearly explained that her focus was not on every work created with public money but more concretely on those pieces of the regular work of a state or public authority (for example, opinions presented by judges in a judgment, or NASA’s photographs).
Regarding the lack of harmonisation of exceptions and limitations incurrent copyright rules, when Reda says (para. 9) that “exceptions and limitations should be enjoyed in the digital environment without any unequal treatment compared to those granted in the analogue world”, SGAE calls it a simplistic argument. Its rebuttal, not based on a very profound argument, is that digital works differs totally from the analogue world. SGAE also adds that creating new exceptions and limitations as well as broadening the existing ones would weaken the system of protections – and that it would be contrary to Court of Justice of the European Union (CJEU) case law on the strict interpretation of exceptions and predictability of the law. This line of argument itself fails to acknowledge the existence of the World Intellectual Property Organization (WIPO) three-step test and its transposition into EU law in the Information Society Directive.
Even more puzzling is that the rapporteur’s call to make all exceptions and limitations mandatory is seen by SGAE as contrary to the principle of subsidiarity. This principle encompasses the idea that Union law should not be put in place unless it is more effective than legislation at the national, regional or local level.
Finally, on the issue of digital protection measures (para. 23), SGAE argues, incomprehensibly, that Reda’s proposal “appears to” propose limiting all technological protections, and that this is against international treaties. SGAE seems to have overlooked that the rapporteur talks about “access to content that is not subject to copyright or related rights protection”. On the other hand, if SGAE wishes to protect the use of technology in order to keep cultural goods out of the hands of citizens, even when there is no copyright interest to be protected, this would a very elegant explanation of its philosophy.
Although the report starts off with the statement that SGAE is not opposed to the revision of the Information Society Directive it is only on condition that it is the same as the creaking old one. Reality keeps changing, but the adaptation to this new reality and facilitating access to culture online is being blocked by stagnant arguments like the position presented by SGAE. In this regard, the United Nations (UN) Special Rapporteur in the field of cultural rights, Farida Shaheed brought arguments for a positive change which are a breeze of fresh air for a meaningful review of EU copyright rules.
Everyone is talking about EU copyright reform. However, in the European Parliament, everyone is having the same discussions on enforcement that they were having ten years ago – and talking about stopping any reform.
The Draft Report “Towards a renewed consensus on the enforcement of Intellectual Property Rights: An EU Action Plan” (2014/2151(INI)) presented by Member of the European Parliament (MEP) Pavel Svoboda reacts supportively to the rather bland, regressive and unimaginative Commission Communication of the same name. Sadly, Mr Svoboda seems to be choosing to support the mistakes that the Commission’s view that the failures of the last ten years should be the model for the next decade.
The Draft Report mixes, sometimes in the same phrase, totally different issues in Intellectual Property Rights (IPR), such as counterfeit goods and online content. This leads him to write that “the enforcement of intellectual property rights plays a significant role in ensuring consumers’ health and safety”, although this connection seems somewhat vague. Svoboda also uses terms which we already rejected in the Communication on which this Report is based, and talks about the “commercial scale infringement” that even the Commission publicly admitted that, particularly the online environment, would also require a clearer definition of “commercial scale”, although everyone now appears to have forgotten this.
More worryingly, the Report appears to call for the implementation of certain enforcement measures which do not require public or judicial supervision. The Report refers to “due diligence” procedures, without being clear about whether it is talking about online or offline, where this would have very different meanings. It speaks supportively of “follow the money”, without any particular definition or understanding of what this might be. The whole Report might be understood as wholesale privatisation of regulation of freedom of communication. Or not.
The Report also applauds the work of the Observatory on IP Infringements, presumably because the European Commission asked it to. One would have to search for a long time to find anything of high quality produced by the body since its inception.
There are, however, some positive aspects of this Draft Report. For example, it states that there is the need for more information about what citizens are allowed to do with protected content. EDRi has been calling for a modernised and harmonised system for copyright, since the system which is still in force is not in line with the uneeds of users in the 21st century. Svoboda also expresses his concerns on the “divergent interpretations of certain provisions of the directive result in differences in its application in the Member States”. Indeed the fact that national courts have been implementing the IPR Enforcement Directive in order to clarify what the legislator could not clarify, which is why reform is needed. The situation is that critical that, if the EU legislator just took the opportunity to make sense of the copyright regime, it would be already a victory.
The Opinions proposed by the Committee on Culture and Education (CULT) and Internal Market and Consumer Protection (IMCO) do not give any more hope. We can find in both of them the same references to the same vague and misleading terms (“commercial scale infringement”, “follow the money approach”, etc) and reference to the same statistics that EDRi and the Copyright for Creativity (C4C) coalition have already definitively debunked to “describe” the impact of infringements. The amendments tabled by MEPs in the CULT committee are beyond parody. One, for example, removes demands for statistics to be reliable, precised and unbiased!