The European Commission, Council, and Parliament have all identified the creation of a “digital single market” (DSM) for Europe as one of their shared top priorities. European Commission Vice President Andrus Ansip, leading the DSM project team, states one of its core goals as breaking down the “national silos” of disparate legal treatment in the areas of telecom regulation, copyright, and data protection.
The DSM working document does contain proposals that would partially defragment copyright in Europe. The DSM strategy identifies territorial restrictions and “geo-blocking” of online content as a chief impediments to a single digital market for Europe. The DSM strategy also highlights the importance of mandatory, uniform limitations and exceptions to a cohesive copyright system and digital market: “Most exceptions to copyright foreseen in European law remain optional for Member States to implement, resulting in a fragmented landscape across the EU.” (DSM at 29) Unfortunately, as CDT has observed elsewhere, the DSM’s major copyright policy prescriptions seem to involve an enhanced “duty of care” owed by all Internet intermediaries to police copyright infringement by third parties with an even higher duty imposed on those intermediaries designated as Internet “platforms.”
Whether the goal is removal of national silos or simply administration of an effective copyright system, limitations and exceptions must be a central part of the conversation.
A refreshingly distinct view of a unitary copyright system for Europe arrived last week when the European Parliament’s Committee on Legal Affairs (JURI) voted to adopt a report on “the harmonization of certain aspects of copyright and related rights in the information society.” Although amendments watered down key proposals, the report remains a clear recognition of the importance of limitations and exceptions to a well-functioning copyright system. As the original draft report notes in an explanatory statement, the state of discord and disharmony in Europe’s current system flows in part from the decision in the 2001 InfoSoc Directive to set “minimum levels of copyright protection without setting standards for the protection of the public’s and users’ interests.” The statement then gets to the heart of the matter: “the optional nature of most copyright exceptions and limitations and the failure to limit the scope of protection of copyright and related rights to those outlined in the directive[ ] has led to continuing fragmentation of national copyright laws among Members States.” In other words, copyright protections in Member States have crept beyond what was laid out in the InfoSoc Directive, through “ancillary” or “neighboring” rights, while limitations and exceptions remain largely neglected.
The report seeks to address that lopsided and shortsighted approach to copyright. Member of Parliament Julia Reda proposed her draft report on January 20 of this year, after a public consultation which received more than 9,500 responses, the majority from end users. Unsurprisingly, a lot changed since its introduction and the Committee vote. Perhaps the most disappointing change, the report no longer calls for mandatory exceptions across Europe. As CDT noted in its February 2014 response to the Commission’s copyright consultation, “In the Internet environment, limitations and exceptions are therefore not insubstantial “extras” added onto copyright’s framework of rights and incentives for largely extraneous, non-economic reasons; they are essential.” Unfortunately, language that would have required Member States to implement the exceptions listed in the InfoSoc Directive turned into a relatively milquetoast call for examination of “the application of minimum standards across the exceptions and limitations.” Another amendment gutted a proposal to reign in and harmonize copyright terms, which would have gone a long way toward solving (or at least not worsening) the orphan works problem.
The report’s most significant contribution to the discussion of copyright in Europe may be the simple recognition that a conversation focused exclusively on copyright protection and enforcement is fundamentally incomplete.
Although these changes weakened the Report, it retains strong proposals on exceptions for libraries and analysis of digital works where permission to read the work already has been obtained (referred to as “text and data mining”). CDT’s response to the Commission’s consultation also noted a flexible text and data mining exception could promote beneficial research and other uses of copyrighted materials that have negligible impact on the market for the underlying work.
The report’s most significant contribution to the discussion of copyright in Europe may be the simple recognition that a conversation focused exclusively on copyright protection and enforcement is fundamentally incomplete. That one-sided conversation shuts out the public’s interest in research, commentary, access for the disabled community, and freedom of expression. It also all but ensures that the national silos remain in place and a digital single market never becomes a reality.
The United States does not contend with national silos. Nonetheless, when international boundaries come into view, U.S. legislators and negotiators tend to forget the importance of balancing rights and enforcement with exceptions and limitations. By the end of the day, both chambers of Congress likely will have passed “fast-track” trade bills including frustratingly one-sided directions to U.S. negotiators to focus on intellectual property enforcement without considering the importance of limitations and exceptions to a responsible and balanced copyright system. Depending on this directive’s implementation, it could leave U.S. companies operating overseas subject to liability for conduct that is wholly consistent with U.S. copyright law.
CDT hopes that the report’s proposals and original focus on the importance of thoughtfully balanced copyright system resonate in both Europe and the United States. Whether the goal is removal of national silos or simply administration of an effective copyright system, limitations and exceptions must be a central part of the conversation.