Man bekijkt een schilderij door een vergrootglas, Honoré Daumier, 1847

Transparency and the ongoing hypocrisy around “evidence-based” policymaking

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.

Today’s topic for Copyright Week is Transparency: Whether in the form of laws, international agreements, or website terms and standards, copyright policy should be made through a participatory, democratic, and transparent process.

For Copyright Week last year we wrote about transparency and representation in relation to the public consultations leading up to the European Commission’s release of their new Directive on copyright in the Digital Single Market. Our headline read, “Evidence-based copyright policy making should be a no-brainer.” We argued, “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.” But when we saw what was in the Commission’s draft, it became clear that a large swath of substantive feedback from the public was mostly ignored.

Here we are a year later, and the situation in the EU has not improved one bit.

There has been a steady drumbeat of trusted research and expert commentary on how the introduction of a press publishers right will not only fail to generate revenue for a rapidly changing news publishing environment, but will also harm public access to information online. Much of this research was tendered by the European legislator itself. For example, in September 2017 the Legal Affairs committee published a report on the potential impact of Articles 11 and 14-16 of the Commission’s proposed Directive. The research was overseen and published by the Policy Department for Citizens’ Rights and Constitutional Affairs. But, as we noted in our blog post, it wasn’t clear when (or if) that research would have been presented to the JURI MEPs ahead of them having to vote on the issue.

In December 2017 MEP Felix Reda uncovered the existence existence of another study debunking proposed benefits of the press publishers right. The study undertaken by the European Commission’s own Joint Research Centre (JRC) shows that “newspapers actually benefit from news aggregation platforms.” Together with the study MEP Reda also received a copies of an exchange between the European Commission directorate that is responsible for the proposed directive and the author of the JRC study. In the exchange the JRC is told to refrain from publishing his results until further notice, again with the apparent intention to withhold them from MEPs who were at that time discussing the merits of the publishers.

Finally, the Commission’s subterfuge extends beyond simply the controversial press publishers right. MEP Reda also shared an unpublished report of a study examining the effects of copyright infringement on sales of creative works. Apparently the contract for the economic research was tendered by the Commission in 2014 for €360,000. It was completed in 2015 but never published, and Reda received a copy of the report after several freedom of information requests.

As we wrote when the existence of the secret report came to light, “One assumes that the findings from this study would have been a useful input into the Commission’s proposal for the Directive on Copyright in the Digital Single Market … Instead, the Commission pushed ahead and introduced restrictive copyright reforms that blindly tries to stop something, which according to research commissioned by the Commission itself is not a problem.”

The Commission’s suppression of research it asked for but which doesn’t align with its preferred narrative reveals in a harsh light the ongoing hypocrisy of the their rhetoric around evidence-based policymaking. Copyright policy should be made through a participatory, democratic, and transparent process. And the governmental actors leading this process should have the courage and decency to share all relevant information with all stakeholders, especially the public.

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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