How many European lawyers does it take to explain copyright? Start with 28 and add another dozen, because opinions vary. Even a basic project of explaining key copyright issues to EU citizens in 15 Q&As demonstrates that not only is European copyright fragmented into 28 incompatible systems but also that explaining the law is time-consuming and sometimes plainly ridiculous.
The Observatory on IP infringements, a part of the European Union Intellectual Property Office (EUIPO, formerly OHIM), has bravely undertaken a project of explaining copyright to citizens in all European countries. EUIPO devised a set of 15 questions on the issue with substantial input from its civil society stakeholders. The questions begin at such fundamental inquiries like “what is copyright?” but also encompass daily copyright struggles of Europeans going online such as “can I use a picture of my favorite celebrity as my social media avatar?”.
A fun time with the questions
The effort and debate put into what should be asked in the FAQ forms, next to the actual phrasing, was already a symptom of how far the European copyright system has drifted from everyday life. You don’t want the questions to be too general because then it doesn’t help the citizens. However, you also can’t be too specific because every case and every action is different. You want to minimise the risk that people take bad decisions in cases that seem the same to them, but can have very different legal consequences. For example with whom you share copyrighted material often matters in the legal vs. illegal debate – in some cases your immediate circle of family and friends can be allowed, but not public sharing. People do not spend a nanosecond thinking about this legal distinction while sharing.
But wait until we get to the answers
If this makes you think working on these questions borders on the ridiculous, believe me, the answers are where the copyright fun really starts. EUIPO cannot give answers to these questions from within its own expert capacity. Each member state answers the questions somewhat – if not entirely – differently. This is why EUIPO had sent the questions to national copyright experts and subsequently had them checked by the respective public sector stakeholders of the Member States. Time, taxpayers’ money – all that times 28.
Since the questions were drafted in one of the stakeholders’ working groups at EUIPO, the answers went to the group members in a consultation process. Chances are none of the WG members – civil society, representatives of governments and of creative industries – have the capacity to go through it all with their in-house expertise. The civil society members – BEUC, Communia, EDRi, Wikimedia – really wanted to chip in and verify as many country FAQs as possible. But we can only rely on our members’ willingness and capacity to take a voluntary look at the FAQ spreadsheet that printed is basically 4 square meters large.
The FAQ on Copyright for Europe spreadsheet at 20% – 9 out of 28 legal systems described are visible. There are 420 answers to 15 questions
It became clear very early that the check was needed. Explanations that should be digestible for an average Joe are sometimes confusing for lawyers. Some experts who drafted the answers did a great job, but some were apparently misinformed or biased, for example by defining the grey areas of use as illegal. Which, regrettably, with the current state of the copyright is probably the safest legal advice: if you want to stay on the legal side of copyright, when in doubt, don’t do anything. Finally, some experts gave some response but didn’t really answer the question asked.
In order to make the best out of the broken system, civil society got together to look for people, who can either do it within their job descriptions at digital rights’ organisations all over Europe or out of the activist call of duty. Meanwhile, public authorities should be responsible to accurately inform citizens what the current state of regulation is. When the consultation is up, EUIPO will carry out our remarks to the member states’ relevant bodies and the chances to include our comments are basically 50/50 – either they will do it or they won’t.
The joke is on us
In all fairness, EUIPO is also falling victim to the circumstances: 28 systems and no better way to do this than push the questions down to external experts and member states, and then sideways to the stakeholders that actually care.
The real problem behind the FAQ process is that the EU is not motivated enough or not that courageous to finally put an end to the ridicule that is not funny anymore – the 28 separate copyright systems that make people wonder if they can use the logo of their favorite sports team for their social media self-expression or not.
Should that miracle of harmonisation happen, EUIPO could devise one set of Q&A instead of 28 that wouldn’t take a year to put together.
To take it even further, if the harmonised and unified copyright were also updated to the contemporary concerns and technologies, it would include a bold set of exceptions and limitations that would enable people to take advantage of flexibility and private sharing as an everyday no-brainer and not a modern version of a ‘crime and punishment’ dilemma. It would also make many of the questions in the set obsolete and irrelevant.
As far as this dream goes, we now should get back to mining the 28-headed system. Also the promise of the Digital Single Market seems to be more and more elusive with dangerous ideas such as additional publishers’ rights and limiting the freedom of panorama. Until Europe comes together on both national and EU levels, we can use laughter as the coping mechanism.
Anna Mazgal is the Managing Director of the Polish Centrum Cyfrowe, a think-and-do tank turning society digital. Anna is also the COMMUNIA representative at the Observatory of IP Infringements at EUIPO.