The slides and text below were prepared for a public hearing of the European Parliament’s Committee on Legal Affairs and the Committee on Culture and Education
 on “The Future Development of Copyright in Europe”, November 11, 2014, in Brussels (see PDF of the program). It builds on an analysis of the European Commission’s report on on the responses to the Public Consultation on the Review of the EU Copyright Rules.

First of all, let me thank you very much for inviting me to participate in the discussion on the future development of copyright in Europe. I really appreciate the opportunity to share some of my insights on copyright regulation in general and on the report on the public EU consultation on copyright in particular.

Let me start with explaining why I dove into the commission’s report in the first place. Even though copyright law is, and I definitely don’t need to tell you that, a highly contested legal matter, there is some bottom line that everyone involved can agree on: copyright is a balancing act. This is also the exact title of an introductory entry in the series on „Copyright Law Basics“ put together by my scholarly colleague Alan Kilpatrick.

And actually, copyright is a twofold balancing act. For one, copyright law needs to balance access and protection. Without access to previous works, freedom of expression would be impossible and creativity would be stifled. Without protection, many copyright-based business models would be doomed.  For another, copyright law needs to balance stakeholder interests. And it is this balance between stakeholder interests that I have emphasized in my analysis of the commission’s report on the responses to the Public Consultation on the Review of the EU Copyright Rules.

The report makes this relatively easy because in the consultation, respondents were asked to self-classify into one of several different stakeholder categories, the most important ones being end users and consumers, authors and performers, institutional users, publishers, producers and broadcasters, intermediaries and collective management organizations. Of course, the number of responses were not equally distributed among the over 11,000 messages the commission received, which was partly made possible by online tools that made it easier for end users and authors to participate in the consultation.

Given this multiplicity of stakeholders, what does it mean to „balance“ copyright? I would argue that balancing copyright means to find a compromise that leaves everybody equally unhappy. Admittedly, this is only a heuristic but maybe such a perspective on the consultation report can help to address two questions:

  1. First, we could ask how balanced or imbalanced is our current European copyright? Even though – or maybe because – European copyright has not changed since the adoption of the EU copyright directive in 2001, the balance in copyright might have changed substantially over time. In the history of copyright law, technological change from the invention of recorded music over radio to the Internet has repeatedly led to quite substantial changes in terms of actual balance and required law makers to re-adjust copyright regulation.
  2. Second, if we find substantial imbalance in current copyright, we have to ask what direction should re-balancing efforts take?

To address these questions, I have re-assessed the commission’s report on the public copyright consultation (henceforth: report), which is a 100 page summary of over 9,500 replies with over 11,000 messages. The report thereby strictly follows the structure of the questionaire, which comprised of 80 questions that were distributed across 24 issue sections.

Within each of these 24 issue sections, the report distinguishes between the previously mentioned nine different stakeholder groups to present the respective replies.

What I have done in my study is to check for each of the 24 issue sections whether one of the six core stakeholder groups – (1) end users and consumers, (2) institutional users, (3) service providers and intermediaries, (4) authors and performers, (5) collective management organizations as well as (6) publishers, producers and broadcasters – sees a need for copyright reform or is content with the current copyright system.

To visualize my results, I have color-coded them as follows: green means „green light“ for more or less concrete copyright reform proposals put forward by a certain stakeholder group in one of the 24 issue sections. Red means that the respective stakeholder group is content with the status quo in the issue section and does not see any need for reform. Finally, I chose yellow for those cases where reponses within the respective stakeholder group where either unclear, inconsistent or not copyright-related.

Let me now show you some concrete examples of such an analysis. One issue addressed by two questions in the consultation was whether the territoriality of exceptions poses a problem. In this and, as you will see, most other cases, end users and institutional users such as libraries, archives or museums see problems and the „need for coordinated rules“.  And while service providers and intermediaries have divergent views on this matter, authors, collective management organizations and publishers agree that „territoriality of exceptions does not constitute a problem“.

The picture is similar if we look at proposals for specific or new exceptions an limitations to copyright such as, for instance, the question of whether we need an exception for text and data mining. Again, end users and institutional users see the need for legislative change, while authors, collective management organizations and publishers are content with the legislative status quo.

In some cases, however, this pattern does not hold. For example, with regard to fair renumeration of authors and performers, we can see that end users and institutional users agree with authors and collective management organizations that „there is a need for the EU to act in this area“. Publishers and intermediaries, in turn, see no reason for change in this regard.

If we look at the “big picture” that emerges out of this analysis, the result is not entirely surprising and very clear: we have a strong divide among copyright stakeholders with end users and institutional users (e.g. libraries, archives, universities) strongly in favor of copyright reform and authors, collective management organizations, publishers and producers in favor of the current copyright system.

In a nutshell, end users and institutional users see a need for copyright reform in 22 and 23 of 24 areas respectively. On the other end of the copyright reform spectrum we find publishers, producers and broadcasters, who would rather see current copyright to stay untouched by the EU legislature. Similarily but not as skeptical towards copyright reform are authors and performers as well as collective management organizations.

So, returning to our initial questions, this analysis indicates that current EU copyright is indeed unbalanced. When one side is completely satisfied with the status quo and the other is very unhappy then this is not a balanced situation.

And, we do also learn something about the direction for re-balancing European copyright law. Because it is clearly the case that end users and institutional users are struggling the most under the current situation, while publishers, authors and collective management organizations are quite content with the situation as is.

If you want to dive into the details of my analysis, the raw data including quotes for all different issue areas is publicly available at bit.ly/EUCopyrightConsultation. Thank you very much for your attention.

(leonhard)