The theme of today’s #Copyrightweek is ‘Transparency and Representation’. The idea is to tell policy makers that copyright policy must be set through a participatory, democratic, and transparent process. It should not be decided through back room deals, secret international agreements, or unilateral attempts to apply national laws extraterritorially.

Whilst this message tends to make most people think of trade agreements and the negotiations that lead to them (you know, all the funky stuff with acronyms that usually include a T? TTIP, CETA, ACTA, etcetera), one does not have to go down the international route to find symptoms of the malaise that surrounds debates about copyright. Not a case of the ‘boys club’ but rather one of ‘the rightholders club’.

Just staying nicely in Brussels is sufficient to get an idea on how copyright debates (dys)function. For illustrative purpose, we have decided to look more specifically at the ‘consultative’ and legislative process that took place in the run-up to the publication of the European Commission’s (EC) proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market (DSM) [2016/0280(COD) – COM(2016)593/F1].

More specifically, we focus on two aspects:

• the consultation process; and,
• the blatant disregard of findings from studies the EC itself commissioned.

A. The consultation process

The EC held a public consultation on the role of publishers in the copyright value chain and on the ‘panorama exception’ (March-June, 2016). In this context, C4C set-up an answering tool and guide, which offered citizens and other stakeholders an easy explanation of the EC’s complex and jargon based questions, in order to help them understand the issues at hand. This answering tool and guide was available in the 3 official consultation languages (English, French and German), but was also offered in 3 additional languages (Italian, Spanish and Polish) to encourage a broader group of people to engage in the consultation process. This effort is referred to by the EC, as “the third party campaign ‘fixcopyright’”. Based on this experience, we believe that the consultation process is flawed at 3 levels, namely:

• the languages wherein the consultation was made available;
• the summary of the consultation results; and,
• the flagrant hampering of citizen participation.

1. The languages wherein the consultation was made available

The EC specifically asked respondents to the public consultation to provide input on the impacts of the Spanish copyright law on different stakeholders, as Spain has already introduced neighbouring rights for press publishers in their national legislation. Therefore, it is problematic, to say the least, that the EC never published the consultation questions in Spanish. This approach is rather dubious: whilst Spanish stakeholders, citizens, news publishers and content aggregators, are directly concerned, the EC does not offer them the opportunity to access the consultation in their native language. So, how are they expected to share their experiences around the impact of their national ancillary copyright legislation (knowing this set of rules has only been adopted in two EU countries, namely Germany and Spain?

This approach from the EC has been the subject of a Parliamentary Question by MEP Daniel Dalton (ECR, UK), to which the EC has replied that “individual replies to this consultation could be provided in any of the EU official languages”. This response show a disconnect between the policy field and stakeholders, because for one to respond in his native language, this presumes that one can understand and interpret the questions being put forward in English. This can prove to be quite challenging for a non-native English speakers, especially if the questions asked are already hard to grasp for a native English speaker due to the use of jargon. Therefore, one could wonder if the EC was truly seeking input from Spanish stakeholders, one of the sets of citizens directly affected by the new rights the EC ended up proposing.

2. The ‘summary’ of the consultation results

The EC waited until the publication of the draft proposal, on 14 September 2016, to publish the synopsis report of the abovementioned public consultation. However, it seems common practice from the EC that a summary report of the consultation results is made in the run-up to the publication of the draft proposal, but this was not the case for this consultation.

The first thing we notice, is that the EC decided to split the synopsis report in two separate ones, namely one dedicated to the analysis of the replies to the ‘publishers’ section and one dedicated to the analysis of the replies to the ‘panorama exception’ section. This implies that the general overview of the contributions to the consultation is rather scarce.

This is reflected in the EC’s reporting on the number of consultation replies received. The EC implies that 6.203 replies were received, but also states that the section on the ‘panorama exception’ received 4.876 replies and that the section on publishers received 3.957 replies. The separate number of replies adds-up to a total of 8.833 replies. The discrepancy with the EC’s reported total of replies could indicate that a large number of respondents opted to reply to both sections. The synopsis reports neglects to mentions this, nor does it provide any further details on it.

Next to this, there is also a mismatch between the number of contributions to the consultation that were published online, namely 5.721 replies (see table below), and the total of 6.203 replies. This implies that 482 responses remain unpublished. We would assume that this is due to the fact that these have been marked as confidential by the respondents. However, again, the synopsis reports neglects to mention this.

A second observation from our side, is the fact that while the EC claims that these reports are a ‘comprehensive assessment’ of the consultation results, nothing less is true. This is illustrated by the fact that the EC limited itself to the use of terms as ‘some’, ‘few’, ‘majority’, ‘vast majority’, ‘generally’, ‘clearly supportive’, etc., without actually pinning down the number of respondents supporting the claims that are being presented in the report. As a result, this total lack of concrete numbers renders the synopsis reports to mere appreciations and perceptions of their authors. We were certainly able to do the math for the responses we collected, and the results were pretty straightforward, as illustrated below.

A third point that we would like to draw attention to, is the EC’s treatment of the responses collected through our answering tool and guide. The explicit references to “the third party campaign ‘FixCopyright’” are questionable, as our efforts merely replicated the EC’s public consultation. Therefore, we wonder why it deserves a separate treatment. More specifically, in our view this raises questions about the EC’s motives to treat our responses differently, instead of merging all responses to facilitate its own analysis. This can be correlated to a ‘philisophical’ stance take by the EC, whereby it considers that if it receives multiple answers to a consultation with the same responses or very similar responses, all such similar answers will considered by the EC as constituting one single answer (so, in other words, 2000 answers suddenly only weigh in as 1, as you need to show evidence of originality to please the powers that be).

Finally, we believe the EC could do more to allow public scrutiny of the consultation responses received, and this by publishing them in a machine-readable format. In this case, the EC seems to deliberately provide the data in the most complex format possible, as such throwing up barriers to anyone wanting to conduct a meaningful analysis of the responses. Luckily, the challenge to make this data more usable has been taken-up by MEP Julia Reda.

3. The flagrant hampering of citizen participation

C4C, and stakeholders supporting its efforts, developed the ‘FixCopyright’ answering tool and guide in such a way that the collected responses could be transferred to the EC’s official consultation tool ‘EUSurvey’. This approach worked well for previous consultations, such as the one on online platforms and IPR enforcement. Until we were confronted with a technical barrier for this specific consultation, as the EC decided to impose a CAPTCHA in order to submit ones consultation response. This proved to be a technical impediment which stopped us from transferring the collected responses.

A similar measure was initially put-in place for the online platforms consultation, but in that case the responsible Unit from DG CNECT removed the CAPTCHA following a friendly request from a C4C signatory.

In this case, it took a tremendous amount of effort, including discussions with the DG CNECT services and various Cabinets, before the EC agreed to accept the responses collected.

If the EC, in the in the spirit of Better Regulation, truly wants to engage citizens and other stakeholders to contribute to its public consultations, then it should open them up in all possible ways and facilitate all efforts that are trying to engage stakeholders beyond the so-called ‘Brussels bubble’.

B. The blatant disregard of findings from EC commissioned studies

From C4C’s point-of-view, the EC’s draft proposal shows a blatant disregard of the findings from studies commissioned by the EC (on top of not taking into account the opinons voiced during the consultation process), studies which are by the way funded with public money.

A concrete example are the EC’s proposed measures to ensure fair remuneration in contracts of authors and performers (see Title IV – Chapter 3, Articles 14-16). In this area, the EC commissioned two studies, namely:

• A study on the remuneration of authors in the music and audio-visual sector, which dates from July 2015; and,
• A study on remuneration of authors of books and scientific journals, translators, journalists and visual artists for the use of their works, which was only made publicly available on 30 September 2016, so after the publication of the draft proposal.

In both studies, the authors clearly point out that measures, such as the ‘best-seller clause’ that is proposed by the EC and already implemented in various forms by several Member States, do not carry a lot of clout in practice.

“Authors and performers certainly have other protective measures at their disposal which they can incorporate into contracts, such as a termination right or a best-seller clause. However, in our opinion, these clauses lack the kind of direct, up-front impact on remuneration that can be observed in a restriction of the scope of transfer. These clauses work rather as ‘ex-post’ remedies and, additionally, require enforcement by the author or performer. Having authors and performers challenge the contract can prove complex, expensive and time-consuming and thus impair the original purpose of the clause.” (Study 1 – pp. 59-60 – emphasis added)

“These clauses work rather as ‘ex-post’ remedies and, additionally, require enforcement by the author. Having authors challenge the contract can prove complex, expensive and time-consuming and thus impair the original purpose of the clause. Moreover, authors are often hesitant to challenge their contract in fear of endangering an on-going relationship with their publisher or being blacklisted by other publishers.” (Study 2 – p. 122 – emphasis added)

These studies have provided clear indications to the EC that measures, such as ‘best-seller clauses’, do not prove to be adequate means to support creators in obtaining fair remuneration. Practically, that type of provisions where a creator can go and bang on a table and ask for more money, only works if the creator is J.K. Rowling or equivalent, or if it’s someone on the verge of retiring and who hence does not care for his/her future career perspectives. Nevertheless, the EC blatantly neglected these findings, and presented an ineffective and suboptimal solution as preferred option (embodied in articles 14 and 15 of the EC’s Copyright in the DSM proposal), leaving creators defenceless, whilst giving the impression to step-in to support their cause. 

More recently, the European Parliamentary Research Service (EPRS) published a briefing providing its initial appraisal of the European Commission’s Impact Assessment (IA). Herein the EPRS remarks that “the IA, which is very dense, is based on limited quantitative data”, and points out that the European Commission openly acknowledges this fact. It also considers that the IA “would also perhaps have benefited from a more detailed assessment of social impacts and impacts on fundamental rights”, and concludes that “concerning rights in (press) publications, it would have been useful if the IA had provided more thorough reasoning regarding the new ancillary right”. This shows that we are not the only ones who think that the EC took the easy road when assessing what to do to modernise copyright, rather than conducting a thorough assessment of what needs be done to bring copyright in sync with the 21st century.

Conclusion

To quote the recently passed away George Michael in his Wham days, ‘If you’re gonna do it, do it right, right? Do it with me’. Or less cryptically, policy makers considering the thorny issue of copyright should follow at the very least the following steps as crucial to any policy making process:

1. Do not limit discussions to the usual suspects in terms of stakeholders, especially when the issues at stake affect the daily life of every citizen.
2. Citizens are not goofballs or little children that should be held away from the ‘grown up’ discussions. They are in many instances the people that are most directly targeted or the ones that most strongly feel the collateral damage stemming from legislative proposals. Hindering their participation or negating their voice is not due process.
3. If you are going to ask the opinion of experts, be prepared to accept they might disagree with what you wanted to hear. If you’re not, just save taxpayers’ money and don’t pretend you care about evidence-based policy making.

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.