The EU Copyright Law Reform: Moving Towards Digitisation (Event Review)
by Pedro Malaquias
On 5 March, BITKOM, the Germany Federal Association for Information Technology, Telecommunications and New Media hosted a breakfast debate under the topic ‘The EU Copyright Law Reform: Moving Towards Digitisation’. This follows the release of the policy paper ‘The EU Copyright Law Reform – Moving Forward to Digitization’, which can be downloaded here.
The event kicked off with a welcome speech by Johannes Jung, Head of the Representation of the State of Baden-Württemberg to the European Union (where the event was hosted), who underlined the importance of copyright law for today’s society.
He was followed by Constantin Gissler, who emphasized the changes that ICT and media went through and explained BITKOM’s position on the reform of copyright. Referring to the death of Leonard Nimoy, who was known for his Star Trek role as Spock, the speaker noted that it took six years after the initial release of the series in the US for German viewers to go ‘where no man has gone before’, something unimaginable in today’s reality. At the same time, user generated content is now mainstream and competes with traditional media. Lower production costs and wider access to contents (the success of the South Korean rapper Psy was given as an example) provide new opportunities. Lastly, the threat of piracy is finally being curbed by new user friendly offers, such as streaming. These represent an increasing percentage of industry and authors profits, but also call into question the rationality of private copy levy systems as the consumption of these contents does not result in any private copies being made.
According to Mr Gissler, the referred to developments call for a new framework for copyright law that allows for the existing untapped creative potential to be unleashed. Not everything that is technically possible should be legal, but flexibility and legal certainty should be assured while artificial borders within the Single Market are taken down. Finally, the reform should not contribute to the expansion of problematic ideas, such as the ancillary copyright law for press publishers.
Afterwards, it was time for the debate, which had the participation of Julia Reda, Member of European Parliament (and one of the Vice-Chairs of the Greens/EFA group), Isabelle Buscke, Head of Brussels Office of the Federation of German Consumer Organisations, Cécile Despringre, Executive Director of the Society of Audiovisual Authors and Fabrizio Gentile, Managing Director Benelux of Deezer. The discussion was moderated by Markus Scheufele, Head of Copyright in Bitkom.
Mr Scheufele started by describing the ongoing developments of the European Copyright System. References were made to the upcoming European Parliament report on the implementation of the Infosoc Directive, the announcement by Andrus Ansip, the European Commission Vice-President for the Digital Single Market, that the new DSM Strategy will be ready in May and to the intention of Günther Oettinger, the EU Commissioner for Digital Economy and Society, to table a draft for the modernisation of EU copyright law by September 2015.
The participants were then asked questions on how to move copyright towards digitisation. First on the spotlight was Ms Reda, who was appointed by the Parliament as rapporteur of the report on the implementation of the Infosoc Directive and has recently presented her draft report. She started by noting that her draft report was met with widespread interest and has received statements of support, but also two different types of criticism: some said that it goes beyond the scope of the directive; others argued that too many things are still left untouched. Ms Reda noted that the copyright framework cannot be analysed without also analysing the technology developments that have occurred and the change in users’ behaviour. In a world where everyone can contribute, there is no longer a clear distinction between authors and consumers. The need for clear rules and legal certainty was stressed. People have not stopped spending money on cultural goods and services and, therefore, any reform should facilitate start-ups to offer pan-European services. A single copyright title could be the way forward, although the MEP noted that it is unlikely that the first step in the reform reaches so far.
Mr Scheufele then turned to Ms Buscke, asking her if the portability of contents was a real issue felt by European consumers or a problem that is limited to the expats in the Euro Bubble. As an opening comment, Ms Buscke shown her happiness to be in the same panel as Ms Reda, as she felt that she was accompanied by someone who defends consumers’ interests. As for the question, she agreed with the existence of a serious problem for all consumers, as their expectations of acquiring something and being able to benefit from it throughout the EU are not being met. Even if felt for a single week of vacations or a single day of travelling, such an issue should be non-existent in a Single Market. Even the use of the expression “cross-borders” should be phased out as, within a single market, there should be no borders.
The same question was addressed to Mr Gentile. The representative from the industry noted that this is a real issue both for consumers and industry. A country per country analysis is needed to offer a musical streaming service in the European Union, carrying high costs for SMEs. According to Deezer’s representative, the access to such a service should be no harder than carrying a physical book or disk across the EU.
The issue of portability and geoblocking was then addressed by Ms Despringre. As an initial remark, she noted that copyright is what protects authors and allows them to make a living of their works and, hence, to continue to produce. The audiovisual sector is a risky one as production budgets keep on increasing and there is no predictability on what can become a market success. As such, the question of access cannot be analysed without taking into account the economic system that allows for the authors’ remuneration. Authors are not an isolated part of this system and they need to collaborate with other parties. In an offer market driven, with a great number of cultural products, simple availability does not necessarily need to accessibility. The movie ‘Ida’, which has recently won the Oscar for Best Foreign Language Film, was given as an example. Although it was released in 2013 in Poland, only through the investment of several parties it became known in other countries. Geoblocking is simply a final part of the economic exploitation procedure. Portability still occurs, as commercial operators are free to offer it. Hence, this is not a simple copyright issue, but results instead from the decisions and business models of the economic operators that are part of the economic system.
Ms Reda’s opinion on geoblocking was diametrically different. She finds it to be prejudicial to the wealth of cultural diversity, which does not follow borders. Speakers of other languages can have access to contents through satellite receivers, but cannot have access to the same contents online. Instead of incentivising the offer of pan-European services, the InfoSoc Directive creates incentives to block access. The diversity of culture does not imply diversity of laws and to the erection of barriers. Finally, on a technical note, the transition from IPv4 to IPv5 will prevent geoblocking as it is commonly done nowadays and, unless serious data protection issues are to arise, operators should be incentivised to adapt their business models as soon as possible.
Questioned about the catalogue of rights, Mr Gentile explained the audience that, although it needs to be able to provide local repertoires, Deezer is a global company and, as such, it needs to obtain from the rightholders licences for the entire world. The country per country licence scheme is in his opinion a thing of the past, but some problems are still encountered. For instance, in Belgium, Deezer has so far not been able to offer access to the lyrics of the songs as there is not a single entity that represents the writers of the lyrics. As such, this part of the service is not available in the country.
The next topic of discussion was limitations and exceptions. Asked to name three important changes that the reform could bring, Ms Buscke stated that much of what consumers need is explained is Ms Reda’s Draft Report. Making limitations and exceptions mandatory and harmonising them in a way that is not detrimental to the users are part of her wishlist. The extension of the exhaustion doctrine to digital goods and technological neutral laws were also supported.
The issues of private copying and levy systems were then discussed. Ms Despringre argued in favour of the viability of the levy system as more private copies occur today that at any previous time. To compensate these, levy systems remain the most relevant and economical system.
Ms Reda noted that levies are not the future and, in fact, they constitute a barrier to the single market, as it is not always easy to know when, where, how much and to whom they should be paid. The question of harm and the lack of any evidence-based approach to determine its appropriate compensation was further criticised. Although she finds unlikely on a short term basis to have levies abolished in the EU or a single levy system, a common system on how to establish levies should at least be established. This should be the result of an evident-based approach that determines the harm (if any) and its need for compensation and avoids the present situation where there are huge differences across Member States between the levies being charged and not so big differences in the harm that they try to compensate. Strange differences on levies, such as the different amounts to be paid in printers as a result of their speed of printing, should also be abolished. These simply lead to slower technological development or to the creation of artificial barriers between Member States. Furthermore, the transparency of the system (how much is collected? What happens with this money?) should be increased, strengthening the position of authors against rightholders.
Mr Gentile noted that the private copy issue is regularly enlaced with piracy and the drops in compensation resulting from this activity. By enhancing the offers to consumers, piracy immediately drops and authors obtain further compensation.
Ms Buscke criticised the lack of transparency of the copyright levies systems and the differences between levies in the Member States. She also noted that as a result of additional licensing (namely, for streaming services), the relevance of levies should be reduced.
To close the event, Mr Scheufele provided the speakers an opportunity for final statements. Ms Reda took the opportunity to claim the need for a harmonised and mandatory system of limitations and exceptions in the EU copyright law framework. Ms Despringre stated that limitations and exceptions do not benefit authors and that the diversity of the audiovisual sector in the EU was not a copyright issue, but instead depended on a multitude of media and different business models. Any reform should help authors to have their work travel better and overcome linguistic and cultural barriers, which are natural, not legal barriers. Ms Buscke, using TTIP language, stressed the need to remove the obstacles to trade in the EU, by making licensing easier, making limitations and exceptions mandatory and harmonising them in a way that is not detrimental to the users. Finally, and on a funny note, Mr Gentile concluded the event by inviting the audience to try Deezer.
@PedroMMalaquias (LL.M. in Intellectual Property Law at Queen Mary, University of London; Portuguese Qualified lawyer; Queen Mary Journal of Intellectual Property, Associate Editor)