infoJustice

[Natalia Mileszyk, Communia Association, Link (CC-0)] While at this stage almost everyone agrees that the EU’s 2001 Copyright Framework is outdated and needs to be reformed, there is a very broad spectrum of ideas of what such a reform should look like. Recently, two of the three EU legislative bodies (who will need to agree on the final outcome) have laid their cards on the table: on the 9th of December 2015 the European Commission presented its long-awaited communication on copyright ‘Towards a modern, more European copyright framework‘ (our comments can be read here), and on the 19th of January the European Parliament followed up with a report on how to achieve a Digital Single Market Act (our opinion on the document is presented here).

Next, the Commission will come up with specific legislative proposals before the summer, which will then need to be approved by the Parliament.

In this situation it is interesting to compare the overall positions of these two actors. From our perspective the Parliament’s approach to copyright reform is more progressive.  This is because the Commission has opted for a safe approach that proposes only minimal changes to the existing rules, whereas the Parliament put forward a number of more interesting and substantial ideas on the direction of the reform:

1. The European Parliament calls for abolishing the failed Directive on Databases, since the directive is considered to be an impediment to the development of a European data-driven economy. On the other hand, the Commission’s communication doesn’t even mention any changes related to the  Directive. The Parliament’s recommendation would set a positive precedent in abolishing IP rights if they do more harm than good.
2. Creative Commons licences are perceived by the Parliament as digital forms of collaborative work and communication that should be be taught and applied across national and linguistic borders in education and training, in public research establishments, and to be promoted in public procurement procedures. Such an approach to open licences will strengthen open culture and open knowledge, and is in our opinion worthy of consideration by the Commission, which omitted the issue of open licensing in its communication.
3. The Parliament encouraged the Commission to examine whether potential issues related to online platforms could be resolved by proper and full implementation of existing legislation and effective enforcement of EU competition law. The Parliament stressed that the limited liability of intermediaries is essential to the protection of the open internet; this is which is coherent with Communia’s approach. But the Commission’s recommendations seem to be more willing to put additional obligations on intermediaries and to change legislative framework, which was demonstrated in the way the Commission’s consultations on this issue was developed.
4. The Parliament wants to introduce the rule of free accessibility (a.k.a. open access) of research results which are at least 50% publicly funded. Such approach is very progressive since none of EU member states have thusfar introduced such a rule on a general scale. Currently, provisions promoting open access to scholarly research can be found as requirements in public procurement procedures and some grants programs, but not in national policies.
5. The Commission and the Parliament have different approaches to text and data mining (even while both agree that TDM should fall under an  exception to copyright to avoid uncertainties in the research community). The Commission wants to allow public interest research organisations to carry out text and data mining of content they have lawful access to, with full legal certainty, for scientific research purposes. However, the Parliament’s suggestion does not include the  limitation to engage in text and data mining only for  “scientific research purposes”. The Commission’s approach would cover an extremely limited set of beneficiaries, and endorse a licensing-based approach instead of creating a harmonized exception for the benefit of researchers across the EU.
6. The Parliament warns that everyone shall be cautious against indiscriminately promoting the issuing of mandatory pan-European licences as a tool to deal with geo-blocking, since this could lead to a decrease in the types of content made available to users. The Commission seems not to see such a threat, and is willing to give rights holders and distributors the freedom to reach an agreement on licences that would allow for cross-border access to content. Once again, the Commission seems to believe that licencing is the answer to almost all of the challenges surrounding this issue.
7. According to the Parliament, fundamental rights such as freedom of expression and privacy are among the factors that should be taken into consideration while shaping a comprehensive copyright framework. In addition, the Parliament wishes to explore fair and appropriate remuneration for creators and other rights holders, economic growth, competitiveness and enhanced consumer experience. For the Commission, protection of fundamental rights only matters while discussing enforcement mechanisms.

Without a doubt, the Parliament’s report could have been more progressive by tackling issues such as the threat of ancillary copyright for press publishers, or the need to safeguarding the public domain. And of course the Parliament’s report only provides suggestions for the ongoing reform discussions— the Commission is not required to take the opinions expressed by the Parliament into account when drawing up their proposals. Nevertheless, we hope the Commission will seriously evaluate and integrate some of the Parliament’s proposals. If they do so, it will go a long way in  helping create ‘a more modern, more European copyright framework’, and not simply a temporary remedy for current problems.