Speech on copyright reform

26 September, IIEA, Dublin EU Copyright Reform and the Future of Publishing in a Digital Age

First of all – thank you – for setting up today’s conference and giving me the opportunity to share my views and experiences in relation to the on-going debate in the EU on copyright reform.

It is fair to say that copyright has dominated my work since I was re-elected to serve Scotland in 2014 and became Vice-Chair of the Internal Market and Consumer Protection Committee otherwise known as IMCO.

Yet my interest in copyright started when in 2012 I began to look at the subject of e-book access in public libraries in Scotland – if libraries were going to survive the digital revolution they needed to offer their customers access to literature in a digital format.

Yet many libraries were denied offering the same physical book in an e-book format to their customers.

Why?

Because publishers refused – or if they were going to offer, the price was overtly prohibitive at a time where library budgets were being slashed.

So we have a situation where we want a knowledge based economy, we want life – long learning, we want knowledge to be accessible but the very organisation which could deliver this – the trusted public space of a library – was denied delivering a service the public were demanding.

In 1907 librarians chose the books which you would be allowed to read for you.

How could in this digital revolution we be going back in time and not progressing forward?

The same could be seen in e-book access and interoperability too – consumers were denied access for something they had paid for.

However I want to tell you a story about one local authority which was doing something revolutionary 5 years ago – it was delivering probably the best digital access to books of any local authority in the UK if not the EU.

Its name – West Dumbartonshire

And why?

Well because the vision of the librarian was digital and he also happened to be an IT
specialist.

So I thought if West Dumbartonshire could do it so could other local authorities following its lead.

Yet one very large local authority neighbouring West Dumbartonshire in one library I visited young people if they wanted to do “digital’ were told to go to the near-by Macdonald’s to access the net.

This drove me personally to found my Open Knowledge Campaign and to campaign for e-book access but also knowledge inclusion – and to promote the vital work of libraries.

Today we have the Library Lovers Intergroup in the European Parliament which I lead and next month our successful Generation Code Week events will again be held at the European Parliament on October 17 and 18.

I have encouraged colleagues to join the group and many Irish MEPs are signed up and committed to promote libraries – one of them when I approached them to sign up to the Intergroup didn’t hear the word library only the word lover – I quickly corrected the mistake but it did make me laugh – maybe more MEPs would have joined if they had misheard.

So all in all, it is thanks to my desire to help public libraries in their public interest mission that I’ve got involved in the copyright discussions in the European Parliament.

I will now give you a background of how the copyright debate shaped over the past couple of years in the European Parliament and the European Commission, where we are now in this debate and what we can expect in the near future.

The original European copyright law, known as the Directive on the harmonisation of certain aspects of copyright and related rights in the information society, the ‘InfoSoc Directive’ for short, dates back to 2001. A lot has happened since 2001 in the digital and, particularly, social media space, not to mention how content is now delivered and our use of smart phones.

In 2014 the European Commission announced their top 10 priorities to be developed and implemented over the course of the current five-year mandate, and the creation of a Digital Single Market was one of these 10 priorities. Then the infamous Digital Single Market Strategy, a proposal set on 16 key targeted actions and initiatives, was published and one key initiative was dedicated to the promotion of a modern European copyright law in a bid “to reduce the differences between national copyright regimes and allow for wider online access to works by users across the EU” as stated by the Commission.

The evolution of digital technologies has changed the way works and other protected subject-matter are created, produced, distributed and exploited. New uses have emerged as well as new actors and new business models. In the digital environment, cross-border uses have also intensified and new opportunities for consumers to access copyright-protected content have materialised.

Finally, after nearly 15 years of reflecting and pondering, a proposal to reform EU copyright was presented by the Commission in September 2016.

However, much to my disappointment, the proposal falls short of the stated goal of “breaking down national silos in copyright” and updating rules to the digital age.

Instead of recognising our everyday practices – browsing, creating, sharing online – the proposal uses copyright to limit the power of the open internet and allows the business models of old to prevail.

Despite containing a couple of good points on fair remuneration in contracts of authors and performers and the use of out of commerce works by cultural heritage institutions, overall the proposed text from the Commission lacks ambition and vision.

It harmonises very few of the existing 20 optional exceptions and, somewhat unexpectedly, introduces more provisions to it i.e. a new right for press publishers under Article 11 and new obligations for online platforms under Article 13.

Although the lead committee in the European Parliament on this proposal is the Legal Affairs Committee (JURI), my own Internal Market Committee (IMCO), responsible for consumer and end-user rights, is an associated committee on this file. This summer IMCO adopted its own opinion, for which I was the draftsperson.

I believe there are three key elements which need to be either re-written or scrapped if we want to pave the way forward for a truly Digital Single Market and a modern copyright regime fit for the digital age.

They are:

The text and data mining exception:

TDM allows to instantly discover patterns from thousands of articles, useful for medical solutions or innovative digital applications. It’s key to Europe’s research, innovation and competitiveness. We need to do more to support our European researchers.

However, the problem is that our current system for communicating research uses a print-based model in the digital age. Even though research is largely produced with public money by researchers who share it freely, the results are not available to those in need and are hidden behind technical, legal, and financial barriers.

These artificial barriers are maintained by legacy publishers and restrict access to a small fraction of users, locking out most of the world’s population and preventing the use of new research techniques.

The Commission proposal is definitely an improvement when compared to today’s status quo: it creates pan-European legal certainty by introducing a mandatory exception instead of an optional one and it covers both commercial and non-commercial research.

Yet the Commission proposes a too narrow exception: only public interest research organisations can do TDM. This means that if you are a citizen, a freelance data journalist or a start-up you will not be able to engage in TDM activity.

I personally believe any person or entity with legal access should be able to engage in TDM activity, this way we would help European researchers, innovators and SMEs.

Unfortunately, the way the discussions are currently going in JURI committee are not very re-assuring. Mr. Voss, who is the spokesperson for this file in JURI seems to favour the Commission text, whilst at the same time limiting it further to non-commercial use only.

The discussions on this file are currently on-going between members of the JURI committee, so we’ll just have to wait and see what the final text on TDM looks like, but I wouldn’t hold my breath. The vote on the JURI report has been postponed yet again to the end of November or December this year.

The second key element which the Commission needs to address, or preferably scrap all together, is the new press publishers’ right, which we will be discussing in greater detail a bit later on this morning.

In my report in IMCO I wanted to delete Article 11 altogether. It just seemed wrong to me on a number of levels. To claim that publishers have no rights is false as they already acquire exclusive rights from authors via contract. I also think the Commission did not produce enough evidence to justify the introduction of this right. Where was the impact assessment?

As you probably know, a similar right was introduced in Germany and Spain, but without much success. I am concerned as to what effect the creation of this new right could have on the market, it is very likely that the addition of this right will add another layer of complexity to licensing deals.

There is also no guarantee provided anywhere in the Commission text that any rise in publisher remuneration would flow through to authors. We only have the unwritten promise of the publishers to reply upon, but we shouldn’t legislate based on wishful thinking.

In reality the issue here relates to licensing and enforcement, so the Commission’s answer needs to focus on licensing and enforcement rather than on creating new rights. There are potentially more effective ways of promoting high quality journalism and publishing in the digital world of today.

In the initial draft produced by the JURI committee this summer there was a suggestion to change this Article: rather than creating a new right for publishers, it proposed to instead make it easier for them to enforce the copyright of content they’ve published in court.

However, since the spokesperson on this file changed over the summer, this sensible approach no longer stands. Regretfully, it seems that the new German Rapporteur is very much in favour of the press publishers right, we will just have to wait and see what the final outcome in JURI will look like.

The third key element for me in this proposal is the proposed wording on Article 13, the so-called ‘value gap’.

The Commission basically implies that Internet platforms hosting “large amounts” of user-uploaded content should monitor user behaviour to identify and prevent copyright infringement.

I firmly support the notion that creators and rights holders are to receive a fair and balanced compensation for the exploitation of their works from online service providers. However, this should be achieved without negative impacts on the digital economy or internet freedoms of consumers.

If unchanged, the proposal would impose a general monitoring obligation on our citizens, which is incompatible with the Charter of Fundamental Rights. Not to mention that surveillance on this scale and the use of content recognition technology would be too costly for European start-ups and small platforms. Effectively, we’d be helping out the big players whilst at the same time killing off European start-ups.

I also believe that, if left unchanged, the current wording of the Article would undermine the limited liability regime provided for in the Electronic Commerce Directive.

We managed to strike a good balance in my committee on the language used in Article 13. The new wording would not disrupt the existing legal framework and established CJEU case law, whilst taking a technologically neutral approach, making sure end- users are not forgotten in this equation and that no general monitoring obligation applies.

It seems that the wording we proposed in IMCO is currently accepted by JURI MEPs as well as its Rapporteur as kind of a basis. Hopefully, the wording will remain intact and gets adopted the way it presently stands. Again, only time will tell how Article 13 will look like in the end but the initial discussions in JURI were reassuring.

I’d also like to briefly touch upon the current state of play in the Council. With the Estonians currently holding the Council Presidency I was initially optimistic about their potential approach to the copyright proposal, given the fact that Estonia is one of the most digitally advanced EU nations. They’ve started and are constantly upgrading and adding new services to their all-encompassing e-Estonia platform since 1997.

Alarm bells started to ring last year when Commissioner Ansip, responsible for the Digital Single Market, made public speeches mentioning that he is not opposed to the press publishers’ right.

Now it seems the Estonian Presidency has presented two options on the press publishers’ right to the Member States: the first one essentially leaves the Commission proposal intact, with the only real improvement being a clarification that extracts too short to constitute an original thought cannot be protected.

The second one, however, would make it easier for news publishers to enforce the copyright in articles they publish in cases of infringement, but without introducing a special right. I sincerely hope the Member States opt for the second option.

In relation to Article 13 the Estonians also presented two options. However, both options do not remove the general monitoring obligation and are technologically specific.

7 Member States (Belgium, the Czech Republic, Germany, Finland, Hungary, Ireland and the Netherlands) questioned the legality of Article 13 and asked for legal advice from the Council’s Legal Service. In their initial assessment of the proposal the Dutch also question the Commission as to why the scope of the TDM exception is so narrow.

I think the fact that the Estonians are presenting several options to both Articles 11 and 13 and the fact that certain Member States are questioning the legality of the provisions within the Commission’s proposal highlights how divided the Member States are on the subject of copyright reform.

To conclude, I think this debate is very complex and driven by a number of powerful stakeholders. At times their lobbying has got personal and ugly.

I believe that in the end we will be able to reach a good compromise on Article 13. However, I am concerned that the Parliament and Member States will not be ambitious enough in their approach to the TDM exception and I sincerely hope that no new additional layer of copyright protection is created for press publishers, adding further complexity to a regime already fragmented.

There is a risk that if Member States don’t find an agreement, the so-called General Approach, the proposal will simply be blocked as was the case with the General Data Protection Regulation, blocked in the Council for years.

I don’t know what will actually be worse – having a bad deal or nor deal at all. I know one thing for sure – without a modern copyright regime which promotes research, innovation, Open Internet and respects the rights of all stakeholders, there will be no Digital Single Market and Europe will continue to lose out to its competitors. This is surely in none of our interests.

Leave a Reply

Your email address will not be published. Required fields are marked *