8 things to know about the EU copyright reform

“Internet, brace yourself –  Günther is coming”. This meme showing German EU Commissioner Günther Oettinger as Game of Thrones’ Ned Stark summarizes the current European debate about access to online content. MEP Julia Reda lives in Belgium. Belgian copyright rules allow her to freely use the meme under the parody exception. But, as she explained at the Electronic Frontier Foundation in San Francisco in July 2015, she cannot share the image on Twitter, because then EU rules apply and trouble starts.

Like Reda, many Europeans are frustrated with their current copyright system. Reda is a member of the German Pirate Party and has led discussions on the upcoming copyright reform in the European Parliament over the past two years. The European Commission has long promised a legal text to address this frustration and presented a hotly anticipated first legislative proposal on December 9, 2015.

The debate around copyright reform is often characterized as a fight for dominance (or survival, depending on where you stand) between giant US technology platforms like Google, Netflix, Amazon and Apple, and small European writers, musicians and movie directors. But there is more to it than this David vs Goliath caricature. Here are eight things to know about Europe’s copyright reform.

1/366, by Esln(Credits: 1/366 by Esln, under CC BY-NC-SA 2.0)

1/ Europe vs. U.S.: two philosophies

The European and the U.S. copyright legal systems stem from two radically different philosophies.

Europe’s property rights on creative works find their origin in the French “author’s right” concept developed in the 17th and 18th centuries. The underpinning idea is that authors have a moral and economic right over their creations, a right which requires special protection. This translates into a monopoly allowing authors and publishers to control who can access and use their content. Copyright hence became the default setting and access by the public the exception.

Because authors and creators are so central to the system, any change to the rules is seen as an attempt to take away their livelihood and their moral rights. This explains how, historically, creators have been very involved in defining copyright policy. French novelist Victor Hugo, for instance, led the discussions on the internationalization of copyright rules in the 19th century.

When the U.S. first looked at this issue in the 18th century, the country needed something different. For a young democracy, educating the masses, giving them the tools to exercise their freedom of speech and developing the economy were the priorities. The rules focused on making access to knowledge easy and fast.

Public interest is at the heart of the U.S. system, so while authors and publishers might enjoy a temporary monopoly over their creations to recoup their investment, content comes back to the public domain pretty quickly. In today’s policy framework, this translates into fair use being the rule and restrictions the exception.

2/ One Copyright Directive = 2,097,182 possibilities

In the U.S., copyright enjoys a robust framework valid across the whole country. This is the result of the U.S. Copyright Act that defines the regulatory framework at a federal level and of the case law of federal courts that hear copyright-related cases in exclusivity.

In Europe, by contrast, copyright is ruled by an EU Directive. A Directive defines the objectives and the general framework of the law, but does not specify the exact tools to reach these goals. It is up to the EU member countries to decide what those means should be, which can lead to great disparities in implementation, but also makes it possible to tailor rules to local needs.

As for copyright, the 2001 Directive lists 20 exceptions and limitations that countries can pick and choose from. There are over two million different ways of combining the exceptions and implementing the Directive – Reda calculated 2,097,182 ways. To add to the complexity, some countries chose to apply some exceptions to some types of content, e.g. text, but not to others, e.g. video. Add to this local interpretation by national courts and you have a mess. This combination of rigidity and uncertainty led Reda to describe the situation in Europe as “especially bad, […] the worst of both worlds.”

Bleu Blanc Rouge de la Tour Eiffel pour un Nous sommes Paris qui resiste, by Laurent Tine-modified

(Credits: Bleu Blanc Rouge de la Tour Eiffel pour un Nous Sommes Paris qui resiste by Laurent Tine, under CC BY-NC-SA 2.0 – picture was edited)

3/ A system designed for authors, not users

Authors and rights holders are at the heart of the 2001 Directive. Users don’t have rights but are merely allowed access based on exceptions to the author’s monopoly listed in the Directive.

With the internet making content consumption easier, the constraints in this regime appear outdated, especially when they follow European national borders that have long disappeared in the physical world. Reda proposes to put the user at the heart of the system, creating a fundamental user right to access content.

Today’s rules have led to absurd situations. The Eiffel Tower is a typical example of how complicated the system can be: taking a picture of the Eiffel Tower by day and sharing it on social media is allowed; doing the same by night requires authorization, because the light show is under copyright (who knew?!).

4/ Culture and politics often prevail

Choice of exceptions by European countries is not random. It reflects strong cultural and political traditions. Here are a couple of examples of how it plays out in France.

France awards 30 years of protection to war heroes on top of the existing copyright term – 70 years from the author’s death – before the work becomes available in the public domain. This is a legacy of the role played by several artists during World War II. Le Petit Prince, written by Antoine de Saint-Exupery, a pilot who died during WWII, is still under copyright protection in France but it is already in the public domain in Germany.

Similarly, France allows an exception to copyright for caricature purposes. Caricatures, especially political ones, have been a mainstay of French culture since the 19th century, and the country values irreverence and freedom of expression.

5/ Geo-blocking in a fragmented market

Culture and politics bind copyright rules to territories along national borders. Commercial decisions reinforce the fragmentation.

To extract revenue from their work, rights holders can allow access through licenses. Those licenses can be country-specific or pan-European. Very often, rights holders have found that fragmenting the market by licensing country by country helps maximize revenues.

But, often too, rights holders choose not to license in some, smaller countries where revenues are expected to be limited. This leads to situations where viewers in one country are forbidden access to content legally available in next door’s country and see the now infamous “This video is not available in your country” notice on video streaming platforms. The practice is known as “geo-blocking”.

Geo-blocking allows rights holders to keep control over their content, but it can also negatively impact cultural diversity. It is particularly problematic for linguistic minorities and permanent migrants living in another EU country. Legal offers to access fringe content either don’t exist or are only available at a higher price.

The Danish-speaking minority in Northern Germany, for instance, does not have access to Danish TV, as Danish stations are forbidden from broadcasting outside Denmark. Similarly, Poles living abroad, although they are part of a large community across Europe, don’t have access to legally available content outside of Poland.

6/ Users and businesses are confused

Users are confused by the mess resulting from the legal and commercial fragmentation of the European market. Copyright was created in a world with physical barriers where flows of content across borders were limited. The internet knows no borders and users don’t care where content is created. “Most normal people [end up] violating the rules on a daily basis,” says Reda. Most of the time without knowing it. Or because they simply don’t have a choice. Even EU policymakers and lobbyists are rumored to use VPNs to circumvent geo-blocking.

Simplifying copyright rules could also bolster European competitiveness. The complex landscape makes it difficult for startups to succeed. It makes it hard to mine data, access scientific research and follow online courses from another country. Not surprisingly, foreign platforms with an established brand and financial backing like Netflix remain dominant. But, even they find entering the European market difficult.

Chillin, by JClks(Credits: Chillin by JClks, under CC BY 2.0)

7/ Not all rights holders are equal

The tensions around copyright reform is not the overblown opposition between rights holders desperately opposing change and online platforms fighting on behalf of modernity and users. The range of people and businesses who benefits or suffer from the systems is vast and, even if they fit within the same group, they don’t necessarily share the same interests: individual creators and performers may disagree with publishers and producers, individual consumers have different expectations from universities, libraries or research bodies.

Publishers themselves disagree with each other. The introduction of an ancillary right on news snippets displayed by news aggregators is a good illustration. The so-called “Google Law” made the headlines in Germany and Spain. Many newspaper publishers are now asking for the rules to be repealed as they are not only inefficient but also extremely detrimental to their business.

Reda conducted one of the largest consultations ever in Europe, receiving over 10,000 replies. The results show the variety of positions in the continent, from keeping the status quo to reforming the system. Individual authors are in fact in the middle of the spectrum, while publishers favor the status quo. This camp is led by the German and French press and book industry, Dutch scientific publishers, US movie studios, the British Premier League and pay TV companies. We are far from the representation of the poor writer battling a rich Silicon Valley corporation.

Julia Reda - Copyright Reform Spectrum of Positions(Credits: Julia Reda)

8/ A political landmine

The European institutional and political structure explains, to a large extent, the difficulty faced by whoever tries to change the system. Copyright, contrary to many issues, does not split along ideological lines, but along national ones.

Countries like France, Germany, Spain and the UK have historically had a large content production and have exported much of it. Their national cultural industries are well connected politically and represent an important part of the national GDP. Today, for better or worse, they drive the debate at national and EU level. Forging a compromise along national lines, especially when large countries push for the status quo, requires a lot of political acumen.

The European Parliament reflects this rainbow of national positions. French MEPs champion the country’s national “cultural exception”, with its far right faction pointing out with horror to the risk of introducing American imperialism. Dutch and Polish MEPs are much more moderate, while the Brits have pushed for a compromise at the EU level, having already reformed the UK copyright rules.

In the European Commission, you can observe a similar split, even within the team that leads the reform. Vice-President Anders Ansip is a strong supporter of banning geo-blocking. He has repeatedly complained about not having access to his favorite football team’s games when in Brussels. Commissioner Oettinger, on the other hand, is known for supporting the interests of German publishers and comes from a country where the fight against illegal downloads is taken extremely seriously.

As is often the case, even when faced with convincing facts, it remains politically costly for politicians to shift positions.

Overall, the debate in the European Parliament has shown that what gets reformed depends on what civil society and private interests push for. A petition to turn down an amendment banning the “freedom of panorama” gathered half a million signatures, with the support of Wikimedia and journalists. Libraries are pushing for the archive exception, universities and labs for text and data mining and access to scientific research. But who represents internet users? An international movement inspired by the Creative Common campaign may be a solution, Reda suggest.