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Evidence-based copyright policymaking should be a no-brainer

It’s Copyright Week and today’s topic is “Transparency and Representation”. Copyright policy must be set through a participatory, democratic, and transparent process. It should not be decided through backroom deals, secret international agreements, or unilateral attempts to apply national laws extraterritorially. Unfortunately, in many aspects the European Union is not meeting such standards.

The European Union began to consider updating its copyright rules in 2013. In September of last year the European Commission released its proposal for a Directive on Copyright in the Digital Single Market. Unfortunately, the plan fails to deliver on the promise for a modern copyright law in Europe. It also does not take into account results of consultations that the Commission has conducted.  

It’s obvious to us that any legislative proposal should be developed from reliable, impartial economic and policy research whose foundation is based on evidence and facts. This information should be broadly available for public inspection, and public institutions should solicit and fairly incorporate feedback from a wide range of stakeholders. The process undertaken by the Commission hasn’t lived up to these expectations.

Representation does not work if the consultation process is broken

The Commission released its copyright plan simultaneously with the long-overdue results of the public consultation on the panorama exception, and the press publisher’s right. This is a prime example of lack of commitment to transparency nor representation. As written in an earlier post:

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.

But looking beyond process considerations, it’s clear that a large swath of substantive feedback was mostly ignored by the Commission. We and many other respondents urged the Commission to introduce a broad, EU-wide Freedom of Panorama right that applies to both commercial and noncommercial uses of all works permanently located in public spaces. The Commission decided not to include it in their proposal.

Link tax and evidence-free policymaking

But perhaps the Commission’s approach to the press publisher’s right (also known as ancillary copyright, linktax, etc.) is a better example of evidence-free policymaking. In opposition to much of the public feedback on this measure, the Commission still introduced the press publisher’s right within their copyright proposal. Their summary report on the public consultation does not communicate that there were nine times as many users, consumers, and citizens who opposed the introduction of the right than press publishers who supported 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 a right for press publishers.

But even if we look beyond public opinion, there’s obvious and direct evidence that a press publisher’s right does not work. Similar rules have already failed to achieve their primary goals in Germany and Spain. A new right will not only fail to increase publisher revenues, but also decrease competition and innovation in the delivery of news, limit access to information, and create widespread negative repercussions for related stakeholders.

Beyond EC consultations: transparency in the Parliament and the Council

It’s imperative that copyright policymaking rely on sound research, incorporate public input, and be communicated in a transparent fashion. Next steps in the legislative process are taking place in the European Parliament and the Council. In the Parliament, MEPs are openly discussing the proposal with their constituents and stakeholders. There is ample space to propose amendments: specific textual changes to the Commission’s proposed Directive. Yet the Council remains a black box, inside which representatives of Member States governments negotiate behind close doors. There are no minutes of the meetings, governments don’t share their positions or outcomes of discussions. One more proof of lack of transparency in this process.

As we are attempting to fix copyright at this crucial moment for copyright law in Europe, we need to be aware that the legislative process itself needs to be fixed.

COMMUNIA has provided feedback and recommendations in support of positive changes in support users and the public interest. We submitted extensive comments to the Public Consultation on the review of the EU copyright rules, not to mention the specific consultation on the freedom of panorama and the press publisher’s rightSince then, we’ve been analysing the proposal and published a series of position papers dealing with the various aspects of the draft Directive. These include the education exception, the exception for text and data mining, the press publisher’s right, freedom of panorama, and content filtering for online platforms.

Copyright Week

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.

If you want to learn more about transparency and representation in the EU copyright reform, Copyright for Creativity has written a detailed blogpost on the topic.

A satire on the art business in which art experts and dealers who assess paintings are depicted as donkeys. After the drawing by Trémolières in the Hessisches Landes Museum in Darmstadt (cropped).
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