Getting ready for Copyright 2.0

We are not technically ready to put the European copyright policy into practice, but there is no reason to despair.

In 1450, Gutenberg was tinkering around with the printing press. Two and half centuries later, Queen Anne granted Royal Assent to the Copyright Act. First, the technical disruptions of printing press and phonograph prompted the businesses of publishing and recording. Then, authors requested the protection of their moral and material interests. As a result, policymakers regulated creative industries. Faced with societal impacts of new distribution technologies, policymakers balanced citizens’ freedoms with creators’ remuneration rights. Policy has always followed technology. Until 2016, when the European Commission proposed a new directive on copyright. The current versions of the proposal targets technologies that are at best emerging. The paradigm shifted: now, policy is preceding technology — an uncharted territory.

The implementation of the directive requires a tremendous amount of speedy exchanges of information, but the necessary technical infrastructure is missing.

The matter is complex. Moral and material rights must be managed. For each of them, there is a flow of value from an author to an audience and a counterflow of remuneration from the audience to that author. They must not only be regulated by policies and laws, but also supported by information systems. Then, there are the exceptions. The legislators distinguish among users, education, scientific and cultural heritage institutions, and amid usages of works, e.g. between teaching and conservation. Systems will need to identify users and usages to handle these exceptions. Finally, there are the collaborations. Not-for-profit and profit-making organisations collaborate. Natural and juridical entities work together. Groups like schools and their members — teachers and students — interact. They all have different user rights. Collaborations using copyrighted works will need sophisticated contracts and systems to channel appropriate remunerations to the authors. Moreover, these contracts and systems will need to consider that a stakeholder can have several roles in the value chain (authors can publish and represent themselves) and that works and rightsholders are regulated by different national legislations in a borderless digital world.

The matter is also dynamic. Over time, a stakeholder’s role can change. A stakeholder’s status can change, typically from amateur to professional. The usage of a work can change, for example from a not-for-profit development to its profit-making commercialisation. And, the rightsholders of a work can change.

The versions of the directive — as drafted at the eve of the European trialogue — cannot be enforced before years of technical developments. Recitals and articles of the Commission, Parliament and Council documents propose a single system in one internal market to provide a high level of protection for rightsholders, the clearance of rights, and a framework wherein the exploitation of works can take place. The Content Convergence and Rights Management programme of Horizon 2020 — the European research initiative — goes even further and aims at real-time rights management. I had a look at the European proposal, version by version, recital by recital, article by article, sentence by sentence, word by word — as a system engineer.

Two examples of current technical infeasibility.

1. The proposal requests effective, proportionate (Recital 38c amended by the Council) and transparent (Recital 38ca amended by the Council) measures leading to the non-availability of copyright infringing works as identified by rightsholders, however not leading to the non-availability of non-infringing works uploaded by users (Recital 38 discussed by the Parliament). For that purpose, rightsholders should provide the information society service providers with necessary and relevant data for the application of the measures to their specific unauthorised works (Recital 38ca). Thus, all copyrighted works should be identified and registered. On the other hand, any material resulting from an act of reproduction of material in the public domain shall not be subject to copyright (Article 5 amended by the Parliament), and the identification of out-of-commerce works should be made permanently, easily and effectively accessible in a public single online portal (Article 8.2 amended by the Parliament). So, combining the current versions of Recital 38, Article 5 and Article 8, all works, copyrighted or out-of-commerce, should be identified and their identification be accessible on a single European online portal.
2. Measures by service providers should be limited to ensuring the non-availability of unauthorised uses on their services of specific and duly notified copyright protected works (Recital 39 amended by the Parliament and Article 13.2). The same Recital stipulates that the measures applied should not require the identification of individual users that upload content and should not involve the processing of data relating to individual users but, offers a complaints mechanism for the benefit of users whose content has been affected by the measures. Either we will accept anonymous complaints, or we will identify plaintiffs. Either the infringing users will remain anonymous, or they will be named. Whatever the legal positions, in Brussels and in each Member State, they will have to be enforced according to data protection regulations — globally and on any platform.

The system implied by the proposed directive should identify and match works, rights, and their owners; monitor usages of works and remunerations of rights; fulfil machine-readable contracts; and protect privacy; along the whole value chain; and at the light of a reality which is complex, dynamic, fluid (works and stakeholders go through continuous — not necessarily discrete — states) and transitional (it will take time to deploy the technical infrastructure and to include the legacy of works).

If we had such a real-time system, we would have open, interoperable, secure and reliable technical platforms to guarantee access and remuneration simultaneously. That system, however, remains to be designed, developed and deployed. Perhaps blockchain technologies blended with artificial intelligence, content identification and processing power are a way forward here.

In 2012, the European Commission had agreed on an immediate action to modernise copyright in the digital economy. 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. The dialogue did not deliver the necessary solutions — not at the technology level, hence not at the business level. In 2016, the policymakers felt the urge to raise their voices — bypassing the most crucial step of their own process. Now, we are stuck.

There is no reason to despair.

What if the policymakers would first impose on the stakeholders a joint programme to develop innovative licensing and technological solutions? What if they would then regulate the new sustainable system? Wouldn’t the stumbling Articles 11 and 13 vanish, clearing the way for a proper copyright policy? It might be an engineer’s dream, but I think it would put the horses in front of the copyright cart.