Twenty copyright policy recommendations for the next decade

On Tuesday, the 31st of May 2022, COMMUNIA presented twenty new policy recommendations that will guide our association’s work for the next decade. We brought together fellow activists, academics, policy makers and other stakeholders from across the copyright policy spectrum in Brussels to celebrate the occasion. Our new policy recommendations build on the principles of the Public Domain Manifesto and replace the previous policy recommendations that have guided our work in the past decade (and which we have evaluated here).

The event was kicked-off by COMMUNIA president Paul Keller, who in his opening remarks (reproduced in full at the end of this post) argued for the need to put discussion about copyright policy back on the agenda of the EU legislator: three years after the adoption of the DSM directive, it is clear that the EU copyright framework remains a fragmented mess that does not adequately address the needs of users and creators in an increasingly complex digital environment. Paul Keller stressed that COMMUNIA hopes that the new set of policy recommendations will contribute to an open and respectful debate with policy makers and stakeholders from across the copyright policy spectrum about how we can work towards a more just and open EU copyright system that embraces the opportunities offered by digital transformation for users and creators alike.

In a first reaction, MEP Tiemo Wölken (S&D) welcomed COMMUNIA’s ambition and highlighted the importance of improving the EU copyright framework in the context of ambitions to strengthen the digital public sphere in Europe. See here for a recording of his intervention.

His intervention was followed by the presentation of the new policy recommendations by Paul Keller and Teresa Nobre. In her remarks, Teresa highlighted the evolution of the recommendations to more explicitly address the concerns of both users and creators (instead of users’ rights, the new recommendations focus on usage rights) and the increasing importance of (procedural) safeguards against copyright abuse. Paul and Teresa then walked the audience through the 20 individual recommendations:

The presentation of the recommendations was followed by a reaction from Prof. Séverine Dusollier, who echoed the overall need to reform the EU copyright framework and welcomed the level of ambition contained in the new recommendations. See here for a recording of her reaction.

Opening remarks by Paul Keller

So why are we assembled here today and why are we launching a set of 20 policy recommendations for improving the EU copyright framework? Isn’t copyright policy a discussion that was wrapped up during the last Commission’s mandate? With the adoption of the DSM directive that followed almost three years of debate of almost unrivalled intensity?

We would argue otherwise. Yes, in the end the EU legislator managed to adopt a compromise. And yes, even the most controversial provisions of the DSM directive have been upheld by the Court of Justice. But that does not mean that the EU copyright framework is perfect or that it is fit for purpose. Looking back from a distance, the DSM directive has made the EU copyright landscape even more messy than before.

So far only 14 of the 27 EU member states have fully implemented the directive. And after last month’s decision by the CJEU it is very questionable if most of these implementations meet the Court’s requirements for fundamental rights compliance.

And while the DSM directive has harmonised (to some degree) some important aspects of the EU copyright framework — the protection of the public domain status of reproductions of public domain works, the new mandatory exceptions for education, text and data mining, and preservation of works held by cultural heritage institutions come to mind, the rules for access to out of commerce works and the rules strengthening the contractual position of authors and creator come to mind, important parts of the EU copyright framework are still very much fragmented.

While the implementation of the DSM directive would have been an opportunity for the Member States to update other parts of their copyright systems as well, national lawmakers have largely shied away from this opportunity. Only in very few cases have national legislators decided to reform national legislation in order to better align it with the objective of increasing access to knowledge and culture or to further harmonise rules across member states.

Exceptions and limitations that protect fundamental rights exist in some member states but not in others. Procedural safeguards to enforce usage rights are missing in action in most member states and the copyright framework still constrains too many activities that it should enable — for example e-lending.

This all takes place against a background of a substantial strengthening of usage rights, both through recent CJEU case law but also through the language of the final article 17 compromise that helped the DSM directive across the finish line. As we have discovered over the last three years, Article 17 does contain in itself a number of elements that substantially strengthen the rights of platform users.

After the amount of opposition against Article 17 from us and many others this feels somewhat counter-intuitive, but who would have thought that what was proposed by the Commission in 2016 as an attempt to curtail the liability privileges of large online platforms would become a vehicle for enshrining the concept of exceptions and limitations to copyright as users rights into the EU framework and at the same time harmonise the so far optional exceptions covering citation, caricature, pastiche and parody through the back door?

But as last month’s CJEU ruling also makes it clear, these conceptual changes will only become meaningful if the legislators implement accessible procedural safeguards for all types of platform users, be they consumers or creators.

So with all of this in mind we think that it is high time to put copyright policy back on the agenda. The work is far from done and with important work on the big digital projects of this legislative period almost completed we think that it is time to start thinking about the future evolution of the EU copyright framework and the role of Europe in global discussions about copyright, so that the challenges and opportunities can be reflected in the agenda of the next European Commission.

By presenting our recommendations today we want to open the debate and give it direction. These recommendations will guide our work over the next decade and if our previous set of recommendations — which guided our work over the past 10 years is any indication — then we should see at least some of them becoming legislative reality by the end of Europe’s digital decade.

By launching the recommendations here today we hope to open a dialogue with policy makers and stakeholders from across the copyright policy spectrum and we hope that these policy recommendations can contribute to an open and respectful debate about how we can work towards a more just and open EU copyright system that embraces the opportunities offered by the digital transformation for users and creators alike.

We are really looking forward to working with all of you on making these recommendations happen over the next couple of years!

Een triton (meerman: half vis, half man), ten halven lijve, met opvallende vinnen bij de oren, blazend op een schelp.
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