This interview appeared in International Politics and Society
On 12 September 2018, the European Parliament will vote on the EU Copyright Directive, the biggest overhaul of European copyright in 20 years. A rather simple, but crucial question to start with: why exactly do we need a copyright reform now?
We have to update it to be relevant in the digital world. As you know, copyright’s not a new thing. The first copyright laws in Europe were created in the 17th century, all connected to printing presses.
But the reality is that the digital era changes the way we consume, whether it’s music or whether it’s print. So there are challenges around how we ensure that authors, creators, musicians, all of these people that enhance our cultural life, are compensated for the works they create.
But at the same time: how do we balance that with fundamental rights that we take for granted? And this is the real challenge, the balance between the copyright of the old world and what we would like to see for the new world. And at the moment we are not quite there yet.
The key word in this context is the so-called ‘value gap’, meaning the difference between the remuneration of creators and the profits made by internet platforms making their works accessible. What’s the reform doing to address this gap?
Now the ideas around this value gap differ between different sectors. So, for example, in the music industry creators would claim that there’s a value gap between the remuneration they received previously and what they get now in the digital era. But the music industry has, over a 20-year period, adapted to the digital world so that streaming is now an essential part of their business models.
However, that doesn’t get away from the fact that nobody should be infringing copyright. It’s wrong. Therefore, the question is how do we ensure that those musicians are compensated and they get their fair remuneration in the online world.
In publishing it’s different, because the music industry is maybe 20 years ahead of the publishing industry. For example, e-books today haven’t taken off in the way that many people thought they would.
So you are saying that you would have to address this issue sector-by-sector, rather than just with a one-size-fits-all approach for all creative industries?
I think the creative industries is a broad term and I think we’ve got to be very careful. One solution which solves one sector’s problems doesn’t necessarily solve another’s.
In general, I think copyright is the real test of this clash between the analogue and the digital world. Take the example of fake news. Fake news has been with us since the printing press was invented. But now we face fake news on an unprecedented scale. It’s a challenge because it affects our democracy directly.
How do we tackle this? I do not think that creating a new press publisher’s right is going to tackle everything about fake news. But I think that the challenges that press publishers face are real. And we all want to have quality journalism.
This brings us to the controversial article 11 in the copyright reform, also dubbed as the ‘link tax’. It’s similar to a law already enacted in Germany and would require, for instance, a licence for every snippet of a news article shared on social media or Google News.
This article has no justification, a similar law has in practice failed Spain and Germany – and revenues are not going to the journalists anyway. Also, people need to be able to consume and read news online in a functional way. So the question really is how do we get the balance right to ensure that journalists are fairly compensated?
In a recent version, the copyright directive included something like appropriate compensation. But I’d say, well just give 100 per cent of compensation to journalists. If you’re going to create something that’s going to give press publishers a new right, use that money to create decent journalism. Don’t let the money go into the profit machines of press publishers. The vast majority of them are private entities, not charities.
On 5 July this year, a first copyright proposal was about to proceed to a trialogue – informal meetings attended by representatives of the European Parliament, the Council and the Commission. But, in a surprise move and after huge lobbying efforts on- and off-line, the proposal was thrown out by a vote in the whole Parliament. Why did that happen?
In this parliamentary session, we move to these trialogues very quickly. Quick deals instead of going through a full co-decision process.
Most people when they’re taught about how EU law is made will talk about the co-decision process by the European Parliament and the EU Council. But in the previous parliamentary session, we’ve had more and more of these quick, first reading deals on something that will fundamentally change copyright, fundamentally change the way we use the internet.
Therefore, I’m very pleased that on 5 July the decision was made to not allow that to happen. We need time to reflect more clearly about the key issues like platform liability and the creation of new rights. So there’s something not quite right with how we got to the 5 July.
You’re making two points here. Apart from the content of the copyright reform on one side, it’s the EU decision making process you’re not happy with.
I voted against going to a trialogue. Many people have never been involved in the day-to-day detail of what was at stake. I should also say that, depending on which side of the debate you fell upon, everyone had an experience of different types of lobbying.
I do think that the way lobbies work, the way certain lobbies have access to individuals is something the European Parliament needs to fundamentally address.
At the moment I’m not happy with how decisions are made in this Parliament because I think we could be far more transparent. The reason we got to the 5 July, and the reason I stood up to make the case why we shouldn’t allow the process to go forward, was because I had worked on the Internal Market Committee for well over a year. And the Internal Market Committee, which has joint responsibility with the Legal Affairs Committee for the copyright directive, was really ignored. Now, you can’t say two committees are going to have joint responsibility on something fundamentally important and then one committee can just be ignored. That’s not acceptable. You have to try and find compromises.
There is a YouTube video that shows you speaking out fervently against article 13, another controversial part of the copyright reform. It’s critics say it would effectively require so-called ‘upload filters’ for any internet platform to monitor copyright infringing uploads. This almost sounds like the end of the free internet.
Article 13 is really about platform liability. So at the moment, there’s a limited liability for platforms. So if someone puts up on a platform something that’s copyright infringing, there’s a system of notice and takedown.
Mr Voss (the European Parliament’s Rapporteur on the copyright reform, editor’s note) wants full liability for platforms. But the only way platforms can be fully liable is if they use a filtering technique, which means that our fundamental freedoms would be dramatically affected.
So I fundamentally disagreed with his perspective and felt my text was much more balanced in saying: no general monitoring obligation. Of course we’ve got to get the balance right but not at the cost of fundamental freedoms.
There are new ways. Thinking about something like an accessory liability could be a way forward, that’s in-between limited liability and full liability which would be within the remits of different already existing laws.
The interview was conducted by Daniel Kopp.