IFRRO Vs Kroes: The (Lack of) Facts Behind the Blaming

As we already posted, on Wednesday 2 July, Neelie Kroes, Vice-President of the European Commission responsible for the Digital Agenda, gave a passionate speech at IViR‘s Information Influx Conference at the University of Amsterdam (UvA). Vice-President Kroes’ speech reflected on the fact that ‘our single market is crying out for copyright reform’, stressing that the current legislative framework is ‘fragmented, inflexible, and often irrelevant’.

As is often the case, end-of-term Commissioners tend to be more outspoken.  Copyright 4 Creativity (C4C) welcomed Vice-President Kroes’ boldness, but clearly not everyone shared our enthusiasm, and the sour grapes were not exactly tempered by the appalling Belgian weather during summer it seems. Indeed, over summer break, IFRRO, the International Federation of Reproduction Rights Organisations, wrote an open letter [PDF] bluntly giving Vice-President Kroes a slap on the wrist. After all, if some Commissioners can find the courage to be more outspoken at the end of their term, I guess some stakeholders similarly suddenly have the guts to shoot back.

IFRRO is especially critical of the fact that the Commissioner refers to other parts of the world, such as Canada and Japan, to evidence that (progressive) copyright reform is taking place and that:

In none of those places has the sky fallen in. All of those places are now innovating, creating, progressing, while the EU lumbers by with an aging system for an analogue age.

Yet IFRRO claims the reforms in these countries have on the contrary led to dramatic results. A statement which C4C considers worth examining. After all, we would not want a EU reform of copyright to lead to a recession of our economy in general (or is that of the financials of certain stakeholders?).

Canada: 3 jobs lost so let’s blame Canada’s copyright reform!

Vice-President Kroes gave the example of Canada, as the county adopted in 2012 an an exception for non-commercial user-generated content (UGC).  IFRRO’s critisms of the Canadian example is not related to this UGC exception, but revolves around Canada expanding its ‘fair dealing’ exception to cover education, which seems to be of great concern to IFRRO’s Canadian member, Access copyright. IFRRO points out some of the so-called consequences of this reform, such as the fact that: “In February 2014, Oxford University Press [OUP] Canada announcing it had closed the division of its publishing programme for primary and secondary schools (K-12), and eliminated a number of jobs; it blamed changes to the copyright legislation (…)

Ariel Katz, Associate Professor at the Faculty of Law of the University of Toronto, remarks that examples, such as the decision of OUP to eliminate three jobs and close its Canadian K-12 division, can hardly be considered the smoking gun providing evidence of the legislative reform’s impact. Katz points out that “correlation between variables, of course, may suggest causal connection, but correlation does not imply causation”.

Howard Knopf, Canadian IP litigator, discusses the ‘Blame Canada’ approach in IFRRO’s letter more in depth, pointing gently out that “perhaps IFRRO may want to think twice in the future before taking such blatantly one-sided and unsubstantiated positions in such important fora as the European Commission“. More debunking of the claims of IFRRO / Access Copyright was conducted by Professor Katz and can be found here (Part 2), and here (Part 3). You can also read his Chronicles of Broadviewlandia about ‘supercopyright’.

Japan: if you can’t prove the sky hasn’t fallen in…it may have?

IFRRO’s letter is also critical of Vice-President Kroes’ reference to Japan introducing in 2009 an exception covering text and data mining (TDM).  IFRRO believes there’s no assessment of the impact of this TDM exception to support the claim that the “the sky [hasn’t] fallen in”.

Dr Sergey Filippov, Associate Director of The Lisbon Council, notes in his recent publication on ‘mapping text and data mining in academic and research communities in Europe’ that “there are signs of strong performance from Asian countries (Japan, Korea, China) with regard to both publications and patents” in the TDM field, and remarks that “Europe’s current weakness in the text and data mining domain may have long-lasting repercussions”. This doesn’t prove that the sky hasn’t fallen in Japan, but shows at least that the sky is falling for research and innovation in Europe. The Expert Group commissioned Report by the Directorate-General for Research and Innovation of the European Commission also pointed that out that “there are worrying signs that European researchers may be falling behind”.

C4C believes that Vice-President Kroes rightfully wonders how innovation and scientific progress can be promoted in Europe when European scientists face uncertainty in their use of text and data mining, and hence abandon its use in certain cases. Luckily, the United Kingdom saw the light, and took the lead in the EU, as it recently enacted legislation excepting non-commercial TDM from copyright.  More action is needed, so we can only hope the European Commission follows this example.

Pre-determined views vs having an opinion after lengthy consultations

Last but not least, IFRRO reproaches Vice-President Kroes for having made up her mind before the dialogue even starts. The dialogue has been ongoing for a while, think about the recent public consultations – plural. So, with the Commission’s white paper set to come out (or not?) it is clear that Commissioners should have made up their mind to decide which direction copyright reform should head. As Vice-President Kroes remarks in her speech it cannot revolve on enforcement alone.

C4C is disappointed that we never heard IFRRO complain about the bias in the Licences for Europe (L4E) dialogue on licencing solutions, wherein participants were not presented with a stakeholder dialogue, but a process with an already predetermined outcome. But then again, I guess that when the outcome suits you, you are less likely to highlight its predetermined nature. Even IFRRO is human after all.

The good news: we all love creativity & innovation

There is one commonality however between C4C, IFRRO and Vice-President Kroes: we all agree that the copyright system needs to promote creativity and innovation, and reward creators. I guess what we read behind these words and our preferred paths to achieve these goals may however substantially differ.