Peculiar policymaking: a post-mortem on the Commission’s overdue report on copyright consultations

Last week the European Commission released its bombshell Directive on Copyright in the Digital Single Market. And while analyzing this proposal has occupied most of our time, there were several other documents released simultaneously by the Commission that also deserve the public’s attention. Of particular interest was the long-awaited report on the results of the public consultation on 1) the panorama exception, and 2) the role of publishers in the copyright value chain (aka ancillary copyright proposal).

We’ll explore these in more detail below, but first a word on process. The public consultation on freedom of panorama and ancillary copyright ended on 15 June. We think that the public input should have been analyzed by the Commission and released to the public long before any public release of a Directive in which those topics are discussed. Doing so would have demonstrated reasonable and responsible policy-making on behalf of the Commission. But by releasing the summaries of these consultations at the same time as the Directive—when it was far too late for the public to understand the Commission’s thinking, let alone advocate for other changes—only reinforces the EC’s disingenuousness in having a public consultation in the first place.

Panorama exception

The Commission received 4876 replies to the public consultation on the panorama exception. The responses regarding the current situation were typical:

  • Member States and public authorities “generally indicated that they were not aware of any concrete problem for users arising in relation to the uploading or the online access of images of these works”
  • Consumers, institutional users and service providers “generally put forward the differences between national legislations implementing the ‘panorama exception’, considering that these differences could lead to legal uncertainty when using images of the relevant works online across borders”
  • Visual artists, architects, CMOs as well as some broadcasters and other rightholders reported that they had “generally never faced issues when using images of these works, nor they were aware of concrete problems for other users”

The responses regarding the potential impact of a mandatory panorama exception across the EU were as follows:

  • Some Member States and public authorities were “open to the introduction of a mandatory ‘panorama exception’ but considered that this should only cover non-commercial uses”, but other Member States said that “legislative intervention at EU level would not be appropriate as they feared this would oblige them to change the scope of current exceptions in their national laws”
  • Consumers, institutional users and service providers “generally considered that the introduction of a mandatory ‘panorama exception’ covering both non-commercial and commercial uses would be a positive development”
  • The majority of professional photographers and architects were “against the introduction of such a mandatory exception since they believed it would hamper the exercise of their rights”
  • Visual artists and CMOs were “clearly opposed to a mandatory exception extending to commercial uses and considered, more generally, that the introduction of an exception of a mandatory nature at EU level was not necessary”

In our response to the public consultation on the panorama exception, we said that the sharing of photos taken in public places is an example of an everyday activity that should not be regulated by copyright. We urged the Commission to consider adopting a broad freedom of panorama that would apply to both commercial and noncommercial uses of images of architecture, sculpture, and other objects in public spaces. We noted that the exception should be mandatory across the EU, and should cover both online and offline uses. We also featured Portugal as a Best Case Scenario for freedom of panorama in the EU.

The Commission has decided to not include in the proposed Directive a mandatory, EU-wide exception that ensures the freedom of panorama. According to the brief rationale provided in its communication, the Commission recognizes the importance of this exception and recommends that all Member States implement the same. Nevertheless, it argues that only a few countries have not yet implemented the panorama exception in their national laws and those “that had not previously done so have introduced this exception in their laws or are discussing draft measures to this end”. In sum, the Commission seems to consider that it is correct to keep granting Member States a “large margin of manoeuvre to lay down such exceptions”, despite the fact that this leads to cross-border problems, additional legal costs, and an unfair balance between authors’ rights and users’ rights.

Ancillary copyright

The Commission received 3957 replies to the public consultation on the role of publishers in the copyright value chain (ancillary copyright). The Commission’s summary of the replies to the ancillary copyright consultation are confusing, and likely do not represent an accurate picture of the feedback. One reason for this is that all of the questions presented in the original survey are briefly summarized according to each category of respondent, rather than on each question individually.

And even though the report includes a graph (p. 2) that shows the number of respondents in each category, the narrative of the analysis doesn’t take into consideration the stark contrast between these numbers in relation to the policy outcomes advocated by each. From the analysis we learn that press publishers are positive towards the introduction of an ancillary right. We also learn that end users/consumers/citizens are against the introduction of a right. What is not communicated in the narrative is that there are nine times as many users/consumers/citizens who oppose the introduction of the right than press publishers who want it. The logical conclusion as to why the Commission doesn’t mention this—or provide any sort of numerical breakdown of respondents ‘for’ and ‘against’—is because it would plainly show that there is massive opposition to the introduction of an ancillary right.

We’ve consistently opposed the introduction of an ancillary copyright for press publishers, citing the failed experiments in Germany and Spain, and warning that implementing such a right at the EU level would have a strong negative impact on all the audiences identified in the questionnaire, including publishers, authors, journalists, researchers, online service providers, and users.

But perhaps most telling piece in the Commission’s synopsis is the inclusion of the position of the Spanish press publishers:

A minority of press publishers, in particular from Spain, took a different view. They referred to the Spanish and German “ancillary rights” laws and expressed a concern that the introduction of a neighbouring right at EU level would make it more difficult for service providers to drive audiences to newspapers and magazines’ websites and as a consequence would reduce traffic and advertising revenues for publishers. These respondents were doubtful that a neighbouring right would improve licensing and enforcement. They considered that legislative intervention at EU level could have a negative impact on the cooperation between online service providers and publishers and ultimately affect smaller publishers negatively.

Even with direct evidence that ancillary copyright does not work, the Commission went ahead and included a provision for an ancillary copyright for press publishers in the Directive. What a shame.

A last note on the survey tool

Around 45% of the responses on freedom of panorama and 60% of the responses on ancillary copyright were “gathered by a third party website (‘fixcopyright’) run by a coalition of stakeholders and sent to the Commission in one go”. The Commission underlines that, while these replies were not submitted via the EU survey tool, they nevertheless feed into the assessment of the report.

It’s proper that the Commission included these responses submitted via an alternate mechanism, especially considering the non-user-friendly survey tool used by the Commission for this consultation. The Commission should develop better tools with which to solicit feedback from the public. These tools should make it easier for all stakeholders to provide comments to important public consultations on policy topics they care about.

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