European Copyright Reform On Slow Track, Observers Say

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European talks aimed at dragging copyright law into the digital age are not likely to produce results any time soon because of resistance from rights holders and political manoeuvring in the European Commission, players from the internet service provider and consumer sectors say. But the Commission said while it’s true that changes could take several years, there will be regulation if needed.

Debate on copyright reform in Europe is nothing new, but in an 18 December 2012 communication on content in the digital market [pdf], the European Commission (EC) said it wants quick answers to the many vexatious, still-unresolved issues. Internal Market and Services Commissioner Michel Barnier, Digital Agenda Commissioner Neelie Kroes, and Education, Culture, Multilingualism and Youth Commissioner Androulla Vassiliou said they will work on two parallel action tracks. One is a “structured stakeholder dialogue” to try to deliver industry solutions by the end of 2013 to the problems of licensing copyrighted content in Europe.

Following an initial meeting, the EC planned to set up working groups to look for ways forward in five areas: (1) Cross-border access to and portability of content services. (2) User-generated content and licensing for small-scale users of protected material. (3) Audiovisual sector and cultural heritage institutions. (4) Text and data mining. (5) Review of the copyright system.

The initial meeting took place on 4 February, and prompted stinging criticism from representatives of the internet service provider (ISP) and consumer sectors.

Why Reform is Lagging

In an 11 February blog posting on radiobruxelleslibera, independent telecommunications consultant Innocenzo Genna said the “problem with such initiatives is that they represent the umpteenth ‘problem setting’ exercise in a digital world which is running and changing faster than the heads of Brussels believe.”

Instead of clear and immediate action, the EC continues to analyse the digital sector with the idea of eventually coming up with some proposal, Genna said. Since the process may only be completed at the end of the EC’s current five-year mandate (2014), the issues will be kicked into the future, he said. Moreover, he wrote, the new Commission may not be bound by the proposals suggested by the current one.

While the debate is taking place, “concrete results are unlikely to occur in a reasonable time,” Genna wrote. How is it possible, he asked, that during its five-year term (2010-2014), the EC hasn’t been able to provide solutions? Genna attributed the lag to several factors. One is a fight for control of the issue of copyright reform within the EC. The fact that the December communication was pushed by three commissioners reflects “tensions and search for a compromise,” he said.

A second issue is that Barnier’s office has been “permanently and strongly lobbied” since 2010 by a copyright industry focussed on solving the problems of a digital market through repression, Genna wrote. The sector believes that piracy is the biggest problem, justifying measures such as internet filtering and disconnection, website blocking and consumer fines, he said. Barnier’s office has not been keen on this approach, considering the opposite view of consumers, civil society and the telecom industry, he said. But since rights owners are a key constituent for the EC Internal Market Directorate, Barnier’s’ staff has tried to convince ISPs, telecom companies and others they should enforce content owners’ rights voluntarily, an idea they have rejected.

A third reason why copyright modernisation won’t happen soon is “panic” stirred up by the politically sensitive disputes over the Anti-Counterfeiting Trade Agreement (ACTA) and International Telecommunication Union (ITU) tussles on internet copyright and freedoms, Genna said. All three factors feed into Barnier’s reluctance to tackle reform during his term, he wrote. The “new wave of analyses, studies and workshops, about problems and possibly solutions which have been already debated in the past, may become instrumental to delay decisions.”

Could EU High Court Force Action?

Every year organisations seeking copyright reform go through the same motions, European Consumers’ Organisation Senior Legal Officer Kostas Rossoglou told Intellectual Property Watch.

The 2012 communication on content licensing is just another discussion, he said. The 4 February meeting was “a waste of time” because it was just talk, he said. The music, audiovisual and print industries don’t see any problem, he said. He predicted there will be no copyright reform for the next three years because this Commission won’t deal with it.

What could force change, however, is the European Court of Justice, Rossoglou said. Decisions in cases now in the pipeline could push the EC to come up with legislative proposals before it’s too late, he told us.

Among those cases is Amazon.com International Sales Inc. and Others v Austro-Mechana Gesellschaft zur Wahrnehmubg mechanisch-musikalischer Urheberrechte Gesellschaft m.b.H., in which the EU high court must consider various questions relating to private copying levies on reproduction media. Another case, UPC Telekabel GmbH v Constantin Film Verleih GmbH, Munich (Germany), Wega Filmproduktionsgesellschaft mbH, deals with the balance of rights among content owners, users and internet access providers. These cases ask many of the right questions which the EC has never dared to answer, Rossoglou said.

Collecting Society Reform Said to be Key

Revamping the EU collective rights management directive is the only practical way to tackle copyright issues for music rights owners, said Kelvin Smits, director of Younison, a lobby group that represents around 7,000 authors throughout Europe who want copyright royalties collected and distributed fairly and transparently using available technology such as audio recognition.

Barnier has been trying to push collective rights management reform but there are too many interested parties and action depends on who has the loudest voice, Smits told Intellectual Property Watch. Up to now, that has been the collection societies. National politicians are reluctant to interfere with those organisations, despite numerous problems, because they pay the bill for cultural activities, so EU-wide regulation is needed, he said.

“We Got the Best Deal We Could”

Nothing has changed from an EC standpoint since it announced its way forward on copyright reform in December, said Kroes spokesman Ryan Heath. “We got the best deal we could” during a 5 December Commission “orientation debate” and “for the first time,” Barnier’s Internal Market directorate is “required to put written reform proposals on the table,” he said. The EC also fast-tracked discussions on a set of problems that don’t need legislative resolution (the topics now being addressed by the current talks on “licensing for Europe”).

“If the talks don’t produce concrete action than we will step in with regulatory proposals,” Heath said. But that won’t happen until 2014, and there’s no guarantee that anything be will approved that year; it may have to wait until 2015. The new Commission seated in 2015 will be bound by any formal proposals made by this one, but can put forward new ones or drop drafts not yet adopted, he said. Barnier’s office didn’t return a request for comment.

Genna’s comments lead to some “obvious questions,” said Wiggin LLP (Brussels) Partner Ted Shapiro, who formerly headed the Motion Picture Association’s European legal department. “Why would copyright owners want to see their rights weakened, their ability to attract investment in new works undermined and the freedom to exploit their works in the manner they consider best tailored to ensure a return on investment shackled?”

Shapiro questioned what hard evidence Genna relied on to justify his calls for reforming copyright, “apart from the usual anti-copyright slogans.” The burden of proving the need to weaken hard-won protections for European creators and producers “lies with those who wish to trample upon it,” he said. But “they are well funded and apparently not interested in marketplace solutions.”

Dugie Standeford may be reached at info@ip-watch.ch.

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