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ENDitorial: Licences for Europe and fight club... only one rule

13 February, 2013

This article is also available in:
Deutsch: ENDitorial: Europäische Lizenzen und der Fight Club ... es gibt nur e...

There was a moment in November 2012 when even the most cynical observers of the European Commission were hopeful of an effective reform of copyright. Commissioner Barnier gave a speech where he demonstrated that he understood the problems. He explained that “the digital revolution has not yet lived up to expectations in the European context” and described some barriers to cross-border access to content as illegitimate. Finally, the problems had been identified. And recognising a problem is a first step to solving it.

Then, in December 2012, the Commission was even more explicit. It explained that the following would be addressed: territoriality in the Internal Market; harmonisation, limitations and exceptions to copyright in the digital age; fragmentation of the EU copyright market; and how to improve effectiveness and efficiency of enforcement while underpinning its legitimacy in the wider context of copyright reform.

So far, all that has actually happened is the launch of the Commission's “licences for Europe” initiative. Or rather, the Commission's launched industry's initiative... or... well, whoever it is that owns it, was launched. The last line of Commissioner Barnier's speech at the opening event was very telling. “The ball is in your court,” he said. He didn't explain who “you” are – the overwhelming majority of participants (industry lobbyists), the tiny minority of civil society... or society in general?

Actually, we know that “you” is not society in general. The first rule of fight club....”licences for Europe” is... you do not talk about “licences for Europe”. No web streaming of the working groups, “Chatham House Rules” that forbid the attribution of statements to particular participants or their organisations. The public at large is kept firmly outside of the process. After the lack of transparency that helped bring down ACTA, we now have closed doors and “Chatham House Rules” for “licences for Europe”. And no problem definition for the working groups to work on.

Barnier's subsequent comment that “it is incomprehensible that Europeans are coming up against obstacles online which they have been dismantling in the physical world for more than 50 years,” hovers somewhere between tragedy and comedy. This statement comes from a Commissioner who inherited a demonstrably failed 2001 Copyright Directive but has not acted to fix it. This is the Commissioner that inherited a demonstrably failed 2004 IPR Enforcement Directive, but has not acted to fix it.

After four years of inaction on licensing and four years of inaction on exceptions and limitations to copyright, Commissioner Barnier demanded action... by everyone in the room except himself, to “meet together to find fast, specific solutions to problems arising in the here and now”. Fast? Faster than what?

So, what now? Well, we will have months of working group meetings, carefully shielded from the public by the opaque walls of the European Commission, bringing us closer and closer to the end of this legislature, at which time Commissioner Barnier can hand over the dossier to the next incumbent of the “Internal Market” portfolio. Instead of less red tape and fewer licences, licences “for” Europe are likely to generate new barriers and new bureaucracy.

For example, one of the working groups is on “user-generated content”. User-generated content is... well... how can this be explained...? It is user-generated and should not require licensing. Obviously? In many European countries, users can generate content that avails of exceptions to copyright for parody/pastiche, for incidental use, uses of minor importance etc., without licences. However, none of these exceptions are mandatory, so there is a lack of harmonisation across Europe caused by a European Directive which the Commission has no obvious intention of resolving. So, if harmonisation is not possible by the removal of licensing obligations in those countries which don't have appropriate exceptions... what will the “working group” be “working” on? Adding voluntary “licensing” to remove rights that citizens currently have?

The speech from Commissioner Kroes was not much more inspiring. She said that she was not “too keen on heavy-handed legislative measures. They aren't always needed.” This is true. The question is: when you've already got heavy-handed legislative measures that are not fit for purpose – do you repeal or reform them, or do you farm the problem out to an ad hoc collection of industry lobbyists in order to make it seem that the problem is being solved?

It normally takes at least 9-12 months for the European Parliament to adopt a legislative text. The next elections are in 15 months. Is there no hope for a real reform in the next two years?

Licenses for Europe

Commissioner Kroes speech: Digital technology and copyright can fit together (4.02.2013)

Commissioner Barnier speech: Making European copyright fit for purpose in the age of internet (7.11.2012)

Commissioner Barnier speech: Licences for Europe: quality content and new opportunities for all Europeans in the digital era (4.02.2013)

(Contribution by Joe McNamee - EDRi)



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