BRUSSELS, 9 DECEMBER 2015 – “If you have a problem, if no one else can help, and if you can find them, maybe you can hire the A-Team European Commission”.  The European Commission (EC) is coming to our rescue with a plan for a “modern, more European copyright framework”.

They took their time to cook-up a plan, as we originally expected it before the summer-break, then in September, and now, after being leaked, it’s finally here. Perhaps their reasoning was similar to that of Hannibal Smith from the A-Team: “Give me a minute, I’m good. Give me an hour, I’m great. Give me six months, I’m unbeatable”.

So, are we saved? Looking at the Copyright Communication and the Portability Regulation, Copyright 4 Creativity has the following knee-jerk reactions:

C4C Applauds

• The plan: The EC starts on the right foot, by (1) acknowledging that “to be effective, EU copyright rules need to be up-to-date, properly transposed, enforced and understood on the ground” and by (2) defining the right general objective, namely “to increase the level of harmonisation, make relevant exceptions mandatory for Member States to implement and ensure that they function across borders within the EU”. Like Hannibal, we love it when a plan comes together, so let’s see how its being executed.
• Limitations & exceptions: On the limitations and exceptions, we can finally expect some progress from the EC, as they’ll look closer into the limitations and exceptions in the areas below and intend to start putting forward legislative proposals in the 2nd quarter of 2016.
  1. Text and data mining (TDM);
  2. Teaching (illustration for teaching);
  3. Freedom of panorama;
  4. Remote consultation of works;
  5. Preservation of works; and,
  6. Disabled users (the Marrakesh Treaty).
• Text and Data Mining (TDM): From the above list, we would like to specifically highlight the EC’s intentions in the area of TDM. C4C, and several of its signatories, have been pushing hard for the EC to acknowledge that licencing is not THE solution in this area, as the fiasco of ‘Licences for Europe’ demonstrated. So, we are pleased to see that this message resonates in the Communication. There’s no time to lose here, because currently European researchers face a competitive disadvantage, as TDM activities are being moved to locations where legal certainty is ensured and where publishers don’t call-up universities to stop research activities. Facilitating TDM will ensure a level playing field for European researchers (amongst Member States as well as in a global context) and maximise the return on investment of public money, as is evidenced by these short case studies. Let’s hope that the intention behind the rather vague language is to indeed adopt a mandatory harmonized exception.

C4C Regrets

• Limitations & exceptions: Although we applaud the fact the EC intends to work on upgrading some exceptions to make them fit for the 21st century, the feeling still creeps up that real ambition is missing and that more profound reshuffle of exceptions could have been covered that would enable and support more broadly creativity and innovation. It seems like someone came to a meeting with this very short list of exceptions, and that the others just went like Murdock: “Well, that’s great, that’s great, you just do that, that’s great”.
• Contractual bypasses & technical protection measures (TPMs): While we support the EC’s good intentions around the limitations and exceptions, a copyright review can only be considered effective, if the rights granted to users and the exceptions put in place to copyright are not bypassed or neutralised through contractual or technical measures. Here we’re on board with B.A. Baracus: “A good offense is the best defense”.
• Statistics: Also when it comes to statistics, the EC continues to reason like Murdock, “I’m a bird! I’m a plane! I’m a choo-choo train!”, as they keep rehashing flawed figures. C4C already engaged in some myth busting [PDF] around the data [PDF] from Office for the Harmonization of the Internal market (OHIM) and the European Patent Office (EPO), as they produced numbers based on misleading methodologies by defining IPR-intensive in an absurdly broad manner.
• Creators: In the debate creators are like Murdock’s invisible dog “Billy”, the EC pretends to talk about them, but there just not part of the game. The result: the balance keeps tipping into the direction of rightsholders, who are very often not the actual creators. C4C would like to see more attention being paid to the actual creators, and their needs and wishes. The voice of creators unfortunately doesn’t always reach Brussels the way it should, giving the rightsholders a chance to pretend that they’re speaking on their behalf.
  
• Portability: The Portability Regulation will be good for consumers already having access to legal offers, but there will be a de facto exclusion for those consumers from Member States where there’s no offer (yet). The EC still has some work to do to sort out the geo-blocking issues to increase legal offers. C4C also fears that consumers could be confronted with price hikes to access online content services after the rightsholders up the prices during the next licencing negotiations to account for this mandated cross-border accessibility. A point the EC seems to have overlooked. Anyway, we can already hear the rightsholders shout “looks like we’re going to crash and ‘die'”, which won’t happen.
• Ongoing consultations: The EC neglects the fact that it just consulted stakeholders (on the Satellite & Cable Directive), or is even still doing so (on Online Platforms), on some of the issues that are already being earmarked as action points in its Communication. C4C, and other stakeholders, voiced their misgivings about the fact that the EC could at least pretend they’re listening to us. However, it seems they’re having their B.A. Baracus moment, thinking “shut up, fool”.

C4C Opposes

• Limitations & exceptions: The EC believes that “most exceptions do not have effect beyond a given Member State”, a claim we strongly disagree with. The current differences in implementations among Member States in the implementation of exceptions creates legal uncertainty, resulting in citizens never being quite sure what is legal and what is illegal under copyright law. In our view, increased harmonization enables both users and businesses to (better) understand their rights and obligations across the EU, and we consider the all EU citizens should have the same rights in interacting with culture and knowledge.
• Ancillary copyright: We remark that the EC refers to the German and Spanish attempts to reign-in news aggregators, but only sees an issues of fragmentation. This could hint at a European-wide extension of these so-called ‘ancillary copyrights’ initiatives, which would be a flagrant disregard of the negative effects it has had in these Member States and the fact that even press publishers themselves oppose such a copyright extension. Copyright extensions, such as these, are causing legal uncertainty for digital innovators and publishers alike, and the European institutions should stop them.

Still lots of works to be done by the European Commission

The next months will be crucial, as the EC intends to propose more concrete legislative action in the 2nd quarter of 2016. We hope the EC sticks to its plan of increasing the level of harmonisation by making relevant exceptions mandatory.

C4C, and it signatories, will be monitoring the EC’s work closely, and try to contribute constructively to the debate. As B.A. Baracus would say “you’re not going to drug me this time, I’m going to keep my eye on you”.

Still lots of works to be done by us

In our efforts to contribute to the debate, YOU can help us fix copyright! The EC’s all-encompassing and not very clearly defined public consultation on online platforms is still running, and encompasses questions that can be used to highlight that you do not want Internet intermediaries being pushed in the role of ‘voluntary censors’ of the web, that you think licensing terms offered to researchers and many creators by right holders are not always fair, that you consider text and data mining to be crucial for research, and that at the end of the day, you expect your fundamental freedoms as a user to weigh in the balance.

To avoid this consultation only being answered by the ‘usual suspects’, C4C has mobilised a number of its signatories as well as non-signatories to revamp our YouCan.FixCopyright.eu tool, to facilitate the process of responding to the EC consultation. Find out more here, or as ‘Faceman’ would say “man up and get in there“!