Parts of a draft European Commission Impact Assessment on the review of the copyright framework from the Internal Market and Services Directorate-General (DG MARKT) have been released today on the website Statewatch. This impact assessment will be used in the context of the copyright White Paper announced by European Commissioner Barnier and expected by the end of June. More specifically, Statewatch released:
- a section containing the document’s table of contents, introduction and the value tree, and
- a section on user generated content (UGC).
While we have not had the time to analyse these documents extensively, a few initial remarks can be made.
How much room is there for change as a result of the consultation?
The first remark is that the document clearly states on each page that it is a ‘Draft to be finalized in light of responses to the public consultation’, which seems to indicate it was written prior to the outcome of the public consultation process. Whilst it is to be expected that work has been ongoing on the copyright review for many months, one could wonder how much the input given in the public consultation will end up being taken into account.
Moreover, a major area seems to be entirely neglected when looking at the table of content, namely that of ‘open norms’ such as fair use, fair dealings or the three-step test of the Berne Convention. It is quite surprising that so little attention seems to have gone towards a fundamental question, i.e. would the EU benefit from the introduction of a more flexible norm. Other countries such as Singapore have introduced such norms more recently, and the Australian copyright review discussions extensively revolved around the concept of fair use. Yet the draft impact assessment seems to be dismissive about it, making one wonder if this indicates an a priori bias by the European Commission?
The Continued Rise of the Value Tree Metaphor
Looking at some of the areas covered, the famous ‘Value Tree’ is not new to us, as it has been presented at various fora by Ms Kerstin Jorna, Director of the Intellectual Property Directorate at DG MARKT . She presented it amongst others at an IFRRO event in October 2013 and, more recently, at a Confrontations Europe Conference in April 2014. The ‘value tree’ starts from the assumption that ‘investment in creative content remains at the beginning of this internet-based value chain’.
As a result of this assumption, Commission officials point out ‘that the roots need to be fed for the tree to keep blossoming’ and that this needs to happen via a ‘transmission belt of Euros’ (hence all the Euro marked arrows).
Funnily, this tree analogy is very much in sync with a chart put forward by the French Hadopi in its Working Document on ‘Access to Works on the Internet‘, published in July 2013.
These charts offer a very limited and simplified view where, as the song goes, ‘It’s all about the money, it’s all about the dum dum didudumdum’.
As pointed out by Paul Keller from Kennisland, the value tree metaphor is flawed at various levels:
- ‘The Internet is not a simple content delivery mechanism (such as television) that provides a linear sales channel from producers of content to consumers. While this is one (admittedly important) function of the Internet, it is not the only one.’ Keller points out that the Internet serves multiple purposes, ranging from email and messaging, online discussion groups and communities, projects and platforms such as Wikipedia and GitHub, online offerings by public educational and cultural institutions and new forms of research (such as text and data mining) as well as general enhanced collaboration.
- ‘Trying to understand the Internet by looking at the European Commission’s Internet Ecosystem value tree is like trying to understand a forest by looking at one specific tree. Even worse, as any scholar of biology will be able to tell you, intervening on behalf of one specific type of tree without taking into account the effects on the rest of the forest will almost certainly damage the forest as a whole.’ More specifically, Keller points out that by ignoring the multiple dimensions and uses of the Internet and trying to copyright policy in such a monolithic manner, one runs the risk of negatively affecting a series of ‘other crucial uses‘ that make the ‘Internet special‘, ranging from ‘projects like Wikipedia, uses such as text and data mining, online access to cultural heritage and educational resources, and transformative use of the Internet‘, for which ‘limited user rights and long terms of protection become problematic and increased enforcement translates into chilling effects.’
This being said, nature metaphors are not unusual when trying to explain the Internet ecosystem and the role of content. We would however suggest going for a slightly more complex and ‘wild’ approach, as suggested by College Humor here. After all, the purpose of the exercise seems to be to say it’s a jungle out there and at the end, the poor impala (content) gets eaten by all the wild predators.
A Surprising Perspective on User Generated Content (UGC)
The Commission’s outset regarding UGC seems to be flawed, as it more worried about the need for creators to “identify themselves, and to reap economic rewards for their efforts”. This gives a very ‘publishers’ perspective of the UGC problem, which in reality revolves much more around the uncertainty of UGC creators in terms of copyright infringements rather than their concerns about getting remunerated for their latest meme or snazzy comment.
As a result of this slightly one-sided perspective, the draft Impact Assessment pushes forward the ‘Licences for Europe’ (L4E) solution, namely micro-licences (“legal certainty provided by such ‘blanket’ arrangements, though micro-licences may increasingly be available in the market place for some users”), even though no agreement was found for this approach during the L4E discussions. Monika Ermert gave a good summary of those discussions and the complexity of the matter that cannot be squeezed in the ‘licensing solves all’ box. Though the last paragraph of her blog raises the ‘Will you pay me?’ question, she first points out the participative culture and questions related to freedom of political, artistic and cultural expression that stem from the UGC topic.
The draft Impact Assessment also states that, due to a lack of case law around UGC, rights holders have refrained from preventing the emergence of UGC: certainly in the US and Canada there seems to be an appetite for court cases, as evidenced by for example Viacom Vs. YouTube (Viacom sued YouTube and Google in March 2007 alleging that they should be held responsible for the copyright infringements committed by YouTube users), Lenz Vs. Universal, or claims from the Canadian Music industry that UGC ‘supports piracy’.
Obviously, the document posted on Statewatch is only a draft that seems to pre-date the end of the consultation process, i.e. 5 March 2014. One can only hope that in the meantime, the input of the consultation has helped ‘broaden the horizons’ on these issues, in order to include different perspectives and specifically to take into account the ‘user’ perspective on copyright. Users on the Internet do not just buy or access content. When going on sites, they expect a service. That service can include the delivery of content (but not necessarily), but often that is only part of the user’s experience. Copyright is important, as is fair remuneration. But preserving the Internet as an ecosystem that has delivered tremendous benefits to our society and economy in ways that cannot be summarized by simple metaphors, should be equally part of the policy goal of any copyright review. And no, it’s not all about the money, when you look at it that way.