EU Copyright Reform: Europe Needs Flexible Rules that Enable Innovation

2014 is a year of change across European institutions. Elections to the European Parliament will introduce many new politicians to the EU policy making system, and a new team of Commissioners will be appointed to lead the Union’s executive arm.

Among the challenges confronting new officials and politicians will be adapting European copyright rules to better suit today’s and the future’s digital environment. Michel Barnier, Commissioner for Internal Market and Services, responsible for intellectual property legislation, issued a broad consultation in December 2013, asking a series of very open questions about what needs to change. The European Commission currently intends to publish a White Paper in the summer of this year, identifying areas for action.

In our response to the consultation, we highlight the need for a copyright system that enables innovation in web-based services and new ways for users and consumers to engage with copyrighted content – while enabling content creators to be fairly compensated. This requires a flexible approach to limitations and exceptions to copyright. Flexibility facilitates criticism, teaching and creative re-uses of works, but it does more than that. It is crucial to technological innovation and the success of new Internet services across Europe.

By definition, the currency of innovation is new ideas. On the Internet, where copying is commonplace and any new service can raise unpredictable questions related to the application of copyright, a lack of flexibility will be an obstacle to innovation. No matter how comprehensive a static list of exceptions appears at the time it is written into law, there will be no way for legislators to predict all future uses and applications, especially in a sector that is developing and evolving so quickly. A static list of exceptions removes any incentive for entrepreneurs and developers to try anything that doesn’t appear on the list. This is true even of uses that pose no threat to the market for protected works, but which nonetheless implicate the strict letter of copyright law because they involve some measure of copying.

In the US, the fair use doctrine has enabled technological innovation and progress, such as the introduction of the VCR, search engines, mass digitization and indexing projects. Without the flexibility that fair use injects into the copyright system, these and many other innovations would not have taken hold. A European system that does not secure the necessary flexibility across the Union will not be conducive to European technology innovation that would ultimately promote robust free expression and a stronger digital economy, to the benefit of consumers and content providers alike.

We also provide comments on the copyright aspects of linking and browsing, downloads to own, term of protection, text and data mining, and remuneration for private copying, as well as enforcement issues.

CDT also participates in the Copyright 4 Creativity alliance, a network of NGOs and civil society groups focused on promoting innovation and creativity in copyright policy.

Whether the Commission’s consultation will ultimately lead to legislative change remains to be seen, but the questions it raises are relevant and pertinent. CDT will work with other public interest groups, companies and academic communities to work out good answers as the reform process moves ahead.