Copyright, why the cacophony?
In 2012, the European Commission had sketched a reasonable way forward for modernising copyright. Now, the discussion has degenerated again.
After the heated debate on the 2010 report on enforcement of intellectual property rights, two years of constructive work paved the way to the agreement on a way forward for modernising copyright in the digital economy. We looked forward to being on a reasonable track. Why did we leave it?
Already 9 years ago, the hemicycle was divided between the advocates of either citizens’ access rights or authors’ remuneration rights. For them it was “either one or the other”. For me and the Article 27 of the Universal Declaration of Human Rights — a pillar of arts, culture, science and justice — it was “one and the other”.
It was the age of piracy and illegal downloads, a time of disrupted licensing. The internet was the culprit. People were looking for legal solutions to a technical challenge. I formed the hypothesis that technical issues require technical responses. The internet had been built to share, to give access. It was an extraordinary instrument to enable everyone to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. The internet had not been made to protect authors’ moral and material interests.
Therefore, I suggested an iterative bottom-up approach to solve the copyright conundrum. First, one would need to develop open, interoperable, secure and reliable technical platforms to enable participation and remuneration, considering the current and foreseeable techniques to access, copy and distribute content. Then, the stakeholders would be able to define simple, meaningful and sustainable licensing schemes, responding to the needs and supporting the responsibilities of audiences, authors and value-adding intermediaries. Finally, the policymakers would draft a simple, transparent and enforceable intellectual property framework fostering culture, arts and science — free of constraints.
Exchanges and working sessions with the Commission established that this approach was compatible with the acquis communautaire and could be followed in concert with the ongoing European initiatives. Others contributed too. Few months later, the College of Commissioners agreed on a way forward for modernising copyright in the digital economy.
Balancing access and remuneration rights
The Commission decided to work towards a modern copyright framework that guarantees effective recognition and remuneration of rights holders in order to provide sustainable incentives for creativity, cultural diversity and innovation; opens up greater access and a wider choice of legal offers to end users; allows new business models to emerge; and contributes to combating illegal offers and piracy.
The objectives: creativity, cultural diversity and innovation, and the threats: illegal offers and piracy. The balance between authors’ moral and material interests, respectively recognition and remuneration rights, on one side, the users’ rights to a greater access and a wider choice on the other side, and the emergence of new business models in between. The aim and the scope were well defined — perfectly aligned with the “and” of the above-mentioned Article 27 — and rejecting the “either/ or” of the recent acrimonious debate.
Delivering innovative licensing and technological solutions
But the action plan was fuzzy. A structured stakeholder dialogue would be launched to address six issues where rapid progress was needed: cross-border portability of content, user-generated content, data- and text-mining, private copy levies, access to audio-visual works and cultural heritage. The discussions would explore the potential and limits of innovative licensing and technological solutions in making copyright law and practice fit for the digital age. The Commissioners would take stock of the outcome of this dialogue which was intended to deliver effective market-led solutions but, would not prejudge the possible need for public policy action, including legislative reform.
What’s the use of a dialogue “to work to address” issues compared to the purpose of a dialogue “to solve” issues. Solutions matter, working is only a means to an end.
Then, a bag of six “issues”. Really? Cross-border portability of content was the only issue. An issue of harmonisation on the path to the digital single market. It has been solved. User-generated content, data- and text-mining, private copy levies and access to audio-visual works aren’t issues. To the contrary, they are privileges of vibrant democracies and benefits of technological developments. The related issue is the fair, speedy and transparent management of due royalties. That’s the problem. Don’t try to solve an issue if you don’t even identify it properly. And cultural heritage? Worthy of protection, no doubt, but certainly not an issue. Rebate on due remuneration may be an appropriate method of subsidisation — if it is practicable.
Exploring the potential and limits of innovative licensing and technological solutions is a must and a good starting point. But what if, as we know, they are not enough to solve the real problem, the effective and efficient channelling of royalties. Two options: delegating the responsibility to the “market” or showing leadership and launching a programme that will develop what it takes. We have done the latter for coal and steel, continue to do it for agriculture, space and security. We would do it for our creative industries, wouldn’t we?
Finally, the last resort, a legislative reform, hopefully not a threat but sadly the illusion that laws can solve technical problems.
The rot had already set in. To work instead of to solve. Not calling a spade a spade, not naming the real problem. Not envisioning that applicable solutions would be missing, that the bull would have to be taken by the horns, that the solution would have to be first specified and then developed.
Constructive vs. corrective legislation
The rest is history. The intention was strong, the plan much less so. The dialogue took place, it did not bring innovative licensing or technological solutions. Then, one went directly to the top phase of legislation, bypassing the necessary bottom step of technological development and intermediary stage of licensing modelling, and trying to impose corrective rules which will probably be counterproductive. No surprise if one yells.
If one wants to legislate, let’s do it. Let’s render the sectoral dialogue mandatory with an obligation of result — the design and test of the solution at the very least. Then, we shall see. Technologies have evolved during the last 8 years. We have a chance. A structured stakeholder dialogue is mandatory to transform a content boulevard into a content & remuneration superhighway, and a 3-step approach “technology enablers, then licensing models, then policy debates” is strongly recommended — again.
