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Tuesday, 30 June 2015

Are EU policy-makers fighting the right copyright battles?

Amidst all these polite conversations
around EU copyright reform ...
Debate is currently being undertaken at the level of EU institutions as to whether the existing legislative framework in the area of copyright should be updated. 

In May 2015 the EU Commission issued its Digital Single Market (DSM) Strategy [here]. As far as copyright is concerned, despite earlier statements by Commissioners Ansip (from @Ansip: “We are reforming & modernising #copyright rules to get rid of pointless barriers on transfer & access to digital content” (23 February 2015); “#copyright rules fit for digital age? I don’t think so” (19 March 2015)) and Oettinger (from @GOettingerEU: “Modern #copyright rules … are the key goals for 2015” (6 January 2015)), the DSM Strategy does not contain much. 

Policy action is in fact only likely to occur in relation to three issues: (1) (lack of) cross-border access to content and its portability; (2) text and data mining for non-commercial and commercial purposes alike; and (3) discussion around civil enforcement and the role of internet service providers. 

In addition to the very narrow focus of proposed interventions, the DSM Strategy does not clarify what legal instruments (if any) would be adopted to undertake reform in the proposed areas.

In parallel to initiatives on the side of the Commission, also the European Parliament has engaged in the copyright reform debate. Pirate Party member and MEP, Julia Reda, was tasked with drafting a Report on the implementation of Directive 2001/29/EC (‘the InfoSoc Directive’). The original version [here] contained a number of ambitious proposals to reform EU copyright. Following its publication in early 2015, numerous amendments were however presented, so that the text approved by the Legal Committee of the European Parliament in mid-2015 represents a significantly watered-down version of the original Report [a final vote in the plenary of the Parliament is due to take place in early July].

Among the things that have generated a heated debate there is the so called freedom of panorama [here]. Article 5(3)(h) of the InfoSoc Directive allows Member States to introduce into their own national copyright laws an exception or limitation to copyright exclusive rights to allow "use of works, such as works of architecture or sculpture, made to be located permanently in public places". 

... Is it really worth fighting
against freedom of panorama?
Due to the optional (with the sole exclusion of the temporary copies exemption) nature of exceptions and limitations in Article 5 of the Directive, there is a number of Member States, eg France and Italy, that have decided not to transpose Article 5(3)(h) into their own copyright laws.

In the Report as originally enacted, among other things Ms Reda recommended that freedom of panorama be made mandatory (rather than merely optional) for Member States to implement into their own legal regimes. 

The amended version of the Report (as approved by the Legal Committee) includes a recommendation that "the commercial use of photographs, video footage or other images of works which are permanently located in physical public places should always be subject to prior authorisation from the authors or any proxy acting for them".

To translate the latter proposal to reality it would be necessary to amend the InfoSoc Directive. However, at the moment re-opening the InfoSoc Directive does not seem to feature high in the agenda of the Commission (although it is unclear how text and data mining for commercial and non-commercial purposes alike would be achieved).

Is it smart?
In any case, besides legal technicalities the current approach to (lack of) freedom of panorama has generated (outraged) headlines. These have ranged from ‘How the absurd EU copyright law threatens to censor holiday snaps’ of The Times (24 June 2015) to ‘Why the EU wants to stop you posting your vacation photos online’ of Forbes (25 June 2015), and ‘Freedom of panorama: EU proposal could mean holiday snaps breach copyright’ of The Telegraph (25 June 2015). 

Such reactions suggest a complete lack of support on the side of the public opinion. Thus the question that arises is whether relevant EU policy-makers have chosen the right battle to fight: is it so vital to restrict freedom of panorama at the EU level?     

Paucity of case law even in those Member States that do not acknowledge freedom of panorama may suggest that this is not really an issue about which relevant rightholders are so passionate that they cannot stand the idea of not suing alleged infringers. 

All in all, the main message that is being conveyed and perceived by the general public is that copyright imposes unreasonable restrictions and is, ultimately, a ridiculous set of norms. 

Is this good for creators, copyright owners, and users of copyright-protected works alike? Not really.


(This is the text of a forthcoming Editorial in the Journal of Intellectual Property Law & Practice)

4 comments:

Neil Sutherland said...

It's remarkable that there are still MEPs who think it's wise to adopt policies that the public will think absurd. And depressing for Julia Reda, who now finds that Freedom of Panorama is the only topic getting any press coverage; this despite her efforts to get a European Copyright Title on to the table.

Andrew Orlowski said...

Eleonora,

What actually happened here is this. A speculative press release from Julia Reda MEP, a copyright activist, was uncritically regurgitated into a story by The Times. The Telegraph and the Mail both copied the Times' story.

See my account here.

You write:

"Such reactions suggest a complete lack of support on the side of the public opinion"

This assertion needs to be sourced. Three articles in newspapers, two of which are copied from the first, are not a good measure of public opinion.

"Paucity of case law even in those Member States that do not acknowledge freedom of panorama may suggest that this is not really an issue about which relevant rightholders are so passionate that they cannot stand the idea of not suing alleged infringers."

I am having great difficulty understanding this paragraph.

"All in all, the main message that is being conveyed and perceived by the general public is that copyright imposes unreasonable restrictions and is, ultimately, a ridiculous set of norms."

No evidence seems to be offered for this wild assertion. The newspaper articles which mistakenly refer to the amendment as "proposed legislation", have comments, and few, if any of the commenters express the view attributed to them here. Many commenters express weariness in general at the European Parliament passing absurd laws, which is not new, but there is little sentiment in specific about copyright laws.

The idea that copyright is "too complex for ordinary people to understand" is propagated by powerful vested interests who wish to weaken our legal rights. It is a rhetorical tool. An example is Google's "YouTube Copyright School" cartoon - which promotes fear and uncertainty. People actually feel a strong sense of ownership over their work and are unable to assert their rights against giant multinationals who profit from their creativity. As Samuel Johnson wrote:

"There seems to be ... in authours, a stronger right of property than that by occupancy; a metaphysical right, a right, as it were, of creation, which should from its nature be perpetual."

Respectfully, shouldn't legal experts help clarify and educate? We can then leave it to activists to confuse, or ventriloquise "what the public thinks". In terms of social responsibility, surely this is the more responsible reaction?

Andrew Orlowski
The Register
London

Federico said...

A.O. is understandably envious that *his* speculative press doesn't spread as easily/widely. However, that might be a hint that Reda's take was more truthful than AO's articles; if not, surely history will eventually acknowlege AO was right.

«The real advantage which truth has, consists in this, that when an opinion is true, it may be extinguished once, twice, or many times, but in the course of ages there will generally be found persons to rediscover it, until some one of its reappearances falls on a time when from favourable circumstances it escapes persecution until it has made such head as to withstand all subsequent attempts to suppress it.»
https://en.wikiquote.org/wiki/On_Liberty

As for current EU copyright law being impossible to understand and extremely unbalanced, that's already been shown by the Commission's consultation and their own summaries of it: http://governancexborders.com/2014/07/25/eu-commissions-consultation-report-shows-current-copyright-is-unbalanced/

Anonymous said...

"All in all, the main message that is being conveyed and perceived by the general public is that copyright imposes unreasonable restrictions and is, ultimately, a ridiculous set of norms."

As a member of the public, let me assure you that there is support for copyright where it is deserved. But much of it has been dreamt up by politicians, supported by lawyers who want to get the maximum protection for their clients, never mid the cost to the public (which doesn't have a well paid lawyer representing its interests).

The new copyright proposals on a Europe-wide copyright reform which puts ridiculous burdens on people just taking holiday snaps which could appear on facebook, illustrate the point, as does the totally uncalled for protection of software as a literary work. Preventing peolpe messoing around with the software for life of author + seventy years seems a good way to promote progress ...

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