This is the transcript of my speech at CREATe Festival 2016 in London, UK on June 24th, 2016, the day after the EU referendum.
It is an honour to speak here and lend my support to CREATe, which is doing incredibly valuable work to provide politicians like myself with a solid evidence base.
We may not have the best track record of listening to that evidence.
We’ve all woken up to a very different Europe and our common goal of improving public policy has just become harder.
I have to warn you that this occasion calls for a political speech.
Maybe I’m invited to so many academic conferences because I do have a rather academic approach to copyright.
So to those of you who were hoping for a rather academic talk, be relieved that I will be dwelling on the temporary copying exception and text and data mining quite extensively as well.
When I spoke at the EPIP conference last year in Glasgow together with Ian Hargreaves, we talked about the prospects of copyright reform through incremental change.
Today, when looking at the progress that has been made since then on European copyright, to describe it as incremental would be an overstatement.
Two years into the 5 year mandate, we’re still waiting for a proposal to be presented by the Commission.
Increasingly it seems like the options available to address any of the fundamental problems of copyright today – problems with research, with transaction costs, with the digital transformation of society – cannot be sufficiently addressed through European copyright reform alone.
We all agree that nobody would have drafted copyright on a blank sheet and come up with what we have today, but we can’t agree on how to get out of the mess – to a large extent, international treaties constrain our room of maneuver.
In my copyright report, the European Parliament has outlined many small and pragmatic steps that can be taken, but a paradigm shift that would fully take into account the evidence that has come out of the CREATe research projects would have to go beyond that.
This is perhaps best illustrated by looking at one element of the upcoming European reform that has already been discussed ad nauseam: a new exception for text & data mining.
This exception is at best a workaround, a tool to mitigate the problems of an incredibly widely cast exclusive right: the reproduction right, which gives rights holders control over copies both analogue and digital.
Text & data mining is not the first exception that serves this very purpose.
The only mandatory exception in the EU copyright directive, the exception for temporary copies that are integral to a technological process, is quite similar.
This exception is fundamental to digital technology, a point I like to illustrate with the following example: My friend Enno wears a cochlear implant, a digital hearing aid that transforms a sound into a digital signal. This transformation creates a copy. Without the temporary copying exception, my friend would commit a copyright infringement every time he listens to music.
This is not the case, because the exception for temporary copies allows such copies. The exception for text & data mining under discussion today would solve a similar problem.
Just as the temporary copying exception allows my friend Enno to hear with the help of a computer, text & data mining allows you to read with the help of a computer.
That it interferes with copyright protection at all is a bit of an accident. In order to efficiently run an algorithm over works you already have legal access to, you need to copy those works into a database. It is that act of copying that requires permission from the rights holder, because it is unavoidable if you want to automatically analyze data. A prejudice to the author of this work from text & data mining is hard to imagine.
It seems absurd to keep this essential activity of our digital world in a legal grey zone just to please a few academic publishing houses that are already among the most profitable companies in the world. So an exception may very well be adopted soon, but it is just treating a symptom of the problems that arise from international copyright law, defining a global copyright system based on the act of copying, although that approach is questionable in the digital age.
The temporary copying exception makes using digital technology possible, but it has its limits. Take the example of surveillance cameras. If a surveillance camera in a country without freedom of panorama is pointed at a public artwork, is it a copyright infringement? Arguably, that depends on whether the security footage is immediately deleted, or stored for subsequent review, in which case it is no longer a temporary copy.
Another exception that could possibly apply is that of incidental inclusion, but in any case some copyright exception gymnastics are necessary to bring everyday digital technologies into conformity with the reproduction right.
The same question poses itself with the Google StreetView cars. The pictures of facades are certainly stored indefinitely by Google. But at least under German Freedom of Panorama, the legality of showing buildings and artworks under copyright is questionable, because the StreetView pictures are not made by a photographer standing in public space.
The question I want to raise is not whether street surveillance is legal or whether Google StreetView is legal, nor even if we think they should be legal. What I question is whether copyright law should be the tool to answer this question.
The digital revolution means that increasingly, our perception is going to be mediated through digital technology, and increasingly that will not be limited to people with sight or hearing loss.
I’m talking about everything from hearing enhancement headphones, VR goggles, touch sensors and simple smart phone cameras.
The mere perception of the world around us was never supposed to be covered by copyright. But this is exactly what the equation of digital copies with analogue copies achieves.
As technology progresses, every few years, we have to introduce a new copyright exception to maintain balance.
But every time it’s a struggle, with powerful lobbies trying to stop a change that is merely intended to keep the reach of copyright within its limits.
The next exception after the test & data mining debate is already on the horizon: distributors of digital content online are complaining that in order to stream a video to customers, it is not enough to secure the right to communicating this work to the public, they also need to clear the reproduction right, which in some cases may even be held by a different right holder.
So the demand is now to make a new exception, that if somebody has already cleared the right of communication to the public, the reproduction right should be implied in that insofar as it is necessary to facilitate the communication to the public.
If we continue making exceptions for the same purpose, why can’t we instead reform the exclusive right?
What does the reproduction right achieve? Arguably, it is primarily a tool for improving copyright enforcement. If somebody has 20,000 physical copies of a book stored in their basement, you can be pretty sure that they intend to distribute them eventually.
By making the copying itself a copyright infringement, you don’t have to wait for them to actually make a sale and catch them in the act in order to sue them or confiscate their copies.
But how does this situation translate to digital copying? An illegal film distributor who offers streaming services over the Internet to 20,000 customers does not store 20,000 copies of the film on their local hard drive, to then send them out over the Internet and subsequently delete them one by one.
On the contrary, the copy is only created in the very moment in which the act of communication to the public takes place, there is no copy until the customer requests one. So all the benefits of the analogue reproduction right do not apply to digital copying.
Do the reasons that made us build our entire copyright system on the foundation of the act of copying still apply in the digital world?
Do the benefits justify the massive collateral damage to the development of digital technology?
These are questions that can hardly be answered through a European copyright reform alone, the exclusive rights are largely defined in international treaties.
There are other examples where the international framework stands in the way of an evidence-based copyright reform.
Looking at the problem of under-use of works described by Prof. Kretschmer as one of the findings of the CREATe research, two radical and effective ways of addressing this problem would be a drastic shortening of copyright terms or making long copyright terms dependent on works registration.
Both of these options are incompatible with the Berne convention.
So what is the politician to do when faced with these international constraints?
To cut ourselves off from the world, seems to be the recommendation of the day.
To leave all those international conventions and do our own thing.
It takes just a brief glance at the state of copyright in Europe today to see what a terrible idea that would be.
Next to all the problems that may arise from an overreach of copyright, they pale in significance to those that stem from lack of harmonization.
Any transnational project from research to business to simply making a film together would turn into a bureaucratic nightmare if our national copyright systems had nothing in common.
And I don’t imagine Britain’s trade relations would benefit from telling Disney that sorry, British copyright only applies to British works.
As Britain withdraws from the EU, people will find that the UK will not be an Island that doesn’t have to compromise with anyone, rather that finding common ground will be more difficult for everyone.
National sovereignty in a globalized world is an illusion, and a dangerous one at that.
The way to take control of one’s destiny is not to close one’s eyes an to hope the world will disappear. It’s to take the democratic debate to the higher level.
So the future of copyright will not lie with those who will simply try to leave the international system of compromises that have been struck. Those treaties are not going anywhere.
But simply hoping that the Internet will go away, and so will the challenges for copyright, will not work either.
In the worst case, if we don’t overcome our inability to shape the law, business and technology will just develop outside the legal framework and the public ability to make the rules for our society will dwindle.
One could argue that today, Google’s ContentID is already a mandatory copyright register where the only way to benefit financially is to give Google a copy of your work and the rights holder information. Virtually all professional music rights holders participate in it.
We can argue whether that arrangement is beneficial for rights holders, but if we are going to allow it, why should we forbid the public hand from doing the same and effectively give Google an information monopoly?
If we continue to muddle along without addressing the problems of our democratic decision-making, the future of copyright will be shaped in bilateral trade agreements that the public has little say about, that depart from the system in the World Intellectual Property Organization where all affected parties have a seat at the table.
There are already grave concerns about the impact of Intellectual Property Rights on developing countries, perhaps best summarized in the work of the former UN special rapporteur for cultural rights Farida Shaheed.
Cutting developing countries out of the rule-making process could lead to a system of even greater exploitation and inequality.
Multilateralism and transnational organizations are a great achievement that needs to be used in order to maintain its relevance, that needs greater engagement from academia and civil society to be legitimate.
In the best case, the future of copyright will lie in a broad, global re-engagement with international law.
We don’t need to burn the Berne convention, but we certainly need to reform it.
If the ban on formalities, long copyright terms or the reproduction right are the elements that stand in the way of a modern copyright, then we must not throw up our hands in exasperation and say that nothing can be done.
We need to start a global debate about what the next generation of copyright treaty will look like, which elements of the international framework have stood the test of time and which need to be revisited.
The pioneers of this movement are not the so-called creative industries, but people like Manon Ress, James Love and Dan Pescod who have pioneered the Marrakesh treaty for the Blind, that’s when they were not working on ensuring people’s access to life-saving generic medicines.
They have shown that the impossible is possible, that copyright issues can be fixed at the highest political level.
It took them many years, but they pioneered the first international copyright treaty for the access to knowledge and culture.
It will be many years until the next step, but we should start working on it today.
Meanwhile the work in the European Union won’t stop, but it will be much harder without the UK at the negotiating table.
Ideologically I may not be close to the Tories, but they have been an important ally in building a solid evidence base for any copyright reform and strengthening its relevance for the political debate, in pushing for common-sense copyright exceptions such as freedom of panorama and in warding off terrible ideas like the ancillary copyright for press publishers.
And that’s just the smallest reason why I regret the UK’s decision to leave the EU.
I hope that yesterday’s vote will not mark a return to nationalism, that Britain will remain engaged in the international fora, and ultimately strengthen its commitment to making decisions with global impact together.
The work pioneered by CREATe will be more important than ever to facilitate that process. Evidence cannot tell us what we ought to do, for that we will need values.
But evidence is all the more important if we want to work together across borders, to understand each other and to make responsible decisions in the common interest.
Julia speaking at CREATe Festival 2016 London (Foto by @LionelBently)To the extent possible under law, the creator has waived all copyright and related or neighboring rights to this work.