Europe: Now is the time to fix copyright!

Absurd, not of this time, incomprehensible. This is what the current copyright framework in Europe feels like. It is time to make it fit-for-purpose in the 21st Century.

Have you ever tried to explain copyright to a teenager? I did. It doesn’t make any sense to them. Funnily, the idea of a fair remuneration to creators is met with understanding.

The fact that things that are legal in your own country could be illegal in another Member State, that a funny mash-up they made on a social media platform could be pulled down for copyright infringement…I even tried going into the fact that some interpret copyright as meaning that reading lots of documents with your own eyes could be fine, but reading those same documents through the eyes of a computer using an algorithm (the ‘text and data mining way’) could create problems.

Absurd, not of this time, incomprehensible. This is what the current copyright framework feels like, whether you are indeed a teenager, or a grown up trying to be part of the whole ‘let’s increase Europe’s competitiveness’ mantra.

It’s not the fault of the existing legislation (even though, as any compromise that took nearly five years to emerge, it has its beauty problems). The Copyright Directive (also referred to as the Infosoc Directive) was adopted in 2001.

Pre-YouTube, Twitter, pre-pretty much everything we consider a given today.

There’s just no way legislators could have anticipated what would happen in the next decade

Thankfully, the European Commission has been convinced by the overwhelming response to its 2014 consultation on copyright that it needs to do ‘something’.

That something has been fleshed out a bit more in the draft Own-initiative Report on the evaluation of the Copyright Directive (2001/29/EC) of MEP Julia Reda, though that Report still needs to go through the full-blown European Parliament procedures, a process which could be quite painful and with uncertain results.

Does anyone think copyright is there to protect creators?

Actually, most people expect that’s what it does.

Yet copyright has lost its purpose some years ago. At least, in French, it sounds right: ‘droit d’auteur’. That’s what it should be about, no? Protecting the rights of creators.

Yet, nothing is further from the truth. Copyright is about protecting ‘rightholders’

That could be the scientific publisher a researcher had to give away all his rights to in order to ensure publication in a so-called ‘A-listed scientific journal’ (a requirement in many universities to be granted funds).

Or it could be a band of musicians that saw a big cut of its rights go to recording studios and other intermediaries.

Only this week, Techdirt went through the data produced in a new report put together by Ernst & Young with the French record label trade group SNEP to discover that, when it comes to the revenues generated from streaming music (e.g. Spotify or Deezer), ‘The labels end up with nearly 75% of the total payout, with actual artists and songwriters left with the scraps’.

That does not mean intermediaries are not useful. They can, in some cases, play a valuable role. But it should not be claimed that protecting the acquis of these right holders equates to protecting creators and creativity, as that would be one shortcut too far.

Does anyone think that current copyright rules make any sense to normal human beings?


As a law student, I discovered an interesting concept called ‘legitimate expectations’. It was in the context of administrative law and the fact that citizens could claim they had certain ‘legitimate expectations’ in their handling with public authorities.

The legitimate expectations of consumers around Europe are that (1) they like to access content regardless of their device or location (2) they like to create content using multiple platforms (the so-called ‘user-generated content’) and multiple media, and that (3) when content is available easily in a legal form, studies show they buy it.

Copyright rules and the contracts that have been built upon (or beside) them are so out of step with these expectations that there is now a real disconnect between reality and the rules in place.

It is telling that a 2011 Consumer Focus report showed that 73% of UK users are never quite sure what is legal and what is illegal under copyright law (a result which makes one wonder if the remaining 27% are all IP lawyers are merely blissfully ignorant?). That leads to frustration and a lack of sympathy for something that at its root does make sense, i.e. creators deserve to be rewarded.

Does anyone think research, education, consumption of content and production of content are things that do not go across borders?

Actually, some people do.

Even officials of EU institutions! Yet at the same time, these institutions talk about creating a European Research Area or promoting Massive Open Online Courses (MOOCs). Thinking that researchers work within set geographic boundaries is absurd. Thinking copyright is not an issue for them in that context, is even more absurd.

Researchers, educational institutions, cultural heritage bodies, libraries…all of these stakeholders have been set up – often with public money – with a public interest mission: discovering new methods and tools, teaching, giving access to culture and preserving it, etc. Yet at the same time, laws are in place that make it increasingly difficult to fulfil this public interest mission.

Digitising a newspaper with multiple collaborators, means libraries have to become actuarians that try to guess what the life expectancy possibly may have been to then add 50 to 70 years according to the ‘life plus 50 or 70 years’ term of protection rule. The result: digitized newspapers are not published to the general public beyond ridiculous cut-off dates in the 1850’s.

Does anyone believe a legal framework can work when private stakeholders can just ignore the rules through technical gizmos or contractual terms?

That one is difficult to grasp.

The reality of copyright is that most of the content we consume these days is covered by

  • contractual terms and conditions: for example, the T&Cs we never read before clicking ‘I agree’ or the licensing terms publishers impose on anyone wanting to buy items out of their catalogue, and/or
  • technical protection measures: for example, the technical limitations that do not allow you to convert the movies you bought on DVDs and that you would now like to copy on a USB stick to plug directly in your Smart TV, even though the law says you can make a private copy and the price of your USB stick probably included a private copy levy.

So there is no point in going through a copyright review, without including a prohibition for contractual or technical measures to bypass the rules in place.

So what’s the magic recipe?

Sadly, there is none, as starting from scratch does not seem to be on the agenda. But as many cooks know, sometimes changing a couple of ingredients can do a lot to save a dish that looked like a lost cause.

Looking at the rules we have, the C4C Copyright Manifesto identifies four key elements in getting Europe to Fix Copyright, namely:

  1. A Copyright review that simplifies and modernizes the rules to bring them into line with today’s reality and comprises a flexible norm to cope with future evolutions;
  2. Increased harmonization based on a mandatory list of limitations and exceptions, that enables both users and businesses to understand their rights and obligations across the EU;
  3. A shortening of duration that does not extend beyond what international treaties require as well as a faster transfer to the public domain; and,
  4. A review of the implementation and enforcement of copyright rules, based on demonstrated harm and the rule of law, including an in-depth reassessment of private copy levies and the preservation of intermediary liability rules.

MEP Reda’s report suggests many of those ingredients. Up to the EU institutions to show that they are serious about making copyright fit-for-purpose in the 21st Century.

[This blog post was first published appeared at The Digital Post on 13 February, 2015]