Felix Reda

The study defines “IPR-intensive industries” as industries that rely on intellectual property rights more than the average industry. According to this definition, that even covers McDonald’s. What this number really says: The 50% of all industries that are by definition more IPR-intensive than the average generate much less than half of all EU economic activity (39%). So rather than signifying a remarkable contribution to the economy, all it shows is that “IPR-intensive industries” are less productive than others. The methodological flaws of this study have been pointed out time and again.

Point F above quotes other numbers (7 million people, >4% of GDP) without naming their source (pg. 10). That study was commissioned by the European umbrella organisation for collecting societies GESAC, with the support of a host of rightsholders organisations with a direct economic interest in copyright policy, such as the International Federation of the Phonographic Industry (IFPI) the International Federation of Film Producers Associations (FIAPF) and the Federation of European Publishers (FEP). The methodology employed in a similar EY study looking at the French market has also been criticised by Copyright for Creativity.

A number of additions to the report (see also R. below) reflect a conviction that internet platforms are generally exploiting authors, unfairly encroaching upon traditional distributors’ turf and irresponsibly aiding and abetting copyright infringement.

It’s no question that we must ensure healthy competition online and that some dominant platforms are in violation of that. However, the hyperbolic wording of these amendments represent an unconditional siding with the entrenched giants (labels and publishers) against innovation.

Let’s not forget that online services have in fact in many cases done much more over the last years to meet fans’ changing demands and find new business models for artists than the old industry players.

Those who approved this addition seem locked into a world view contradicted by the existence of emerging alternative platforms like Kickstarter and Patreon: While copyright is a very common way to secure the funding of the creative process, it is not the only possible one. The Parliament shouldn’t adopt texts that are this oblivious to the innovation currently happening.

Some adopted amendments attack the central reason for the Commission’s plan to reform copyright: That the 28 different national copyright laws in the EU make it impossible for ordinary people to understand the law, to freely exchange knowledge and culture across borders and to watch their favourite videos without being geoblocked. One points out that copyright inherently implies territoriality, as if the introduction of a common European copyright law would mean that this copyright law would suddenly apply in the entire world, rather than in the territory of the EU. It is not territoriality, the principle that different copyright laws may apply in different places, that these amendments are defending, but they are using territoriality as a pretext to plug a number of other, more problematic ideas: Portability, national differences and territorial exclusivity.

Portability, mentioned in this amendment, is the idea that as long as people can take their Netflix subscription on holiday, other forms of geoblocking can just be accepted. Portability would do nothing to give you access to video streaming and other services that are simply not being offered in your country of residence or that you cannot acquire through payment, such as the websites of public broadcasting services or ad-supported platforms. This point also contradicts other part of the report that clearly state that geoblocking that blocks linguistic minorities from offers in their language is unacceptable and that Europeans have a right to enjoy the freedoms of the market, which includes cross-border access to online services.

The following point 7. makes the claim that just because national differences in copyright laws exist, this is a good thing and must be reinforced in order to ensure that different cultures are respected. This is a direct contradiction to point J of the report that points out that while different cultures and linguistic groups exist in Europe, they are not confined to national borders.

The claim is that the only way that European films can be funded is by having one exclusive online distributor for each film per country that can ensure that there will be no competition by imposing geoblocking.

I call into question the assertion that everything is fine now and nothing must change: In fact, most European films today are not available for online viewing in most European countries. Geoblocking often keeps customers away from films they want to pay for – reducing, rather than securing, revenues for filmmakers.

Nobody’s going to stop going to the cinema in Portugal because a film is already viewable online on an Estonian website: Europe’s “natural” cultural and linguistic barriers are much more effective and unintrusive in achieving some market segmentation than discriminating viewers based on the country they are currently in, harming linguistic minorities and cultural exchange in the process.

If the film industry wants to thrive in the online world, it needs to embrace change.

An important feature of any copyright law are exceptions and limitations that balance exclusive rights against other rights or the public interest. As point 57. of the report confirms, “compensation for the exercise of exceptions and limitations should only be considered in cases where acts deemed to fall under an exception cause harm to the right holder.

While making exceptions that protect fundamental rights such as the freedom of the press mandatory is an excellent idea, requiring compensation for them is not. Typical exceptions that safeguard press freedom are for example the right to quotation or parody. Imagine you had to pay royalties just for the ability to critically discuss something that somebody else has published!

These exceptions benefit all creators and the public debate, there is no need to complicate them by shovelling money from one author (the one quoting) to another (the one being quoted).

One popular strategy to derail the debate about much-needed copyright reform has always been to talk about copyright enforcement instead. The latest trend in this regard is to push for a more active role of online intermediaries (be it social media and hosting platforms or internet service providers) in the enforcement of copyright law by making them more liable for copyright infringements individuals commit over their platforms or networks.

This report deals with the 2001 copyright directive, which regulates the substance of copyright law, not its enforcement, these paragraphs are off topic. Just last month, the European Parliament adopted a separate report on enforcement.

There is also an inherent contradiction between the European Parliament’s repeated statements calling for Internet Service Providers and online platforms to be more neutral in dealing with information from different sources, and any new calls for them to be more liable or responsible. Liability for copyright infringements of third parties creates an incentive for intermediaries to divert from a principle of neutrality and to start policing the behaviour of their users.

The end result may be a concentration of the market to a few large intermediaries, who can afford to put in place complicated monitoring systems, and a significant overblocking of works that aren’t copyright infringements, simply because the commercial operator wants to be on the safe side. While concern about the dominance of a few powerful internet companies may be justified, intermediary liability would make the problem even worse, whereas measures such as net neutrality and enforcement of competition rules would contribute to creating a level playing field with a larger number of small and medium-size operators.

Finally, the main obstacle to making transnational IT companies pay their fair share to society is the fragmentation of our taxation law (though also off-topic here). As the LuxLeaks scandal has revealed, as long as companies can get away with paying 1 percent corporate tax, there is no point in creating entirely new laws trying to make them pay for third-party copyright infringement.

Freedom of Panorama allows photographers, filmmakers and other visual artists to make free use of the public space. In about half the EU member states, this right exists with no limitation to “non-commercial use”, a distinction that is not always intuitively easy to draw in the age of sharing photos on free, but commercial platforms.

Those supporting this amendment want to restrict these rights without reason. Architects and photographers – those this amendment supposedly aims to protect – have already expressed disagreement with the plan in the UK.

→ I have blogged about this issue in detail