Felix Reda

The publishing, film and music industries have hijacked EU copyright reform
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The EU is finally preparing its new copyright law.
It’s a historic chance to update outdated laws sto the new realities and opportunities of the digital revolution. But a leaked draft reveals nothing of the sort.

Instead, Commissioner Oettinger has let the publishing, film and music industries hijack the reform in an attempt to protect old business models from progress – at a tragic cost to freedom of creativity and expression on the internet, startups’ right to innovate and the cause of a Europe without digital borders.

Out of several policy options the Commission considers in the leaked document, it consistently proposes for implementation ones that put corporate interests above those of creators, entrepreneurs and users. It displays utter disregard for the input provided over the last years by the public, researchers, those defending digital rights, the European Parliament, the Commissioner’s predecessor and countless others.

Please join me in stating unmistakably to Günther Oettinger: If these are indeed the plans you will present on September 21st, the reform is dead in the water. These proposals will do nothing to convince Europeans that the Commission is on the side of the population as a whole – a dangerous game when Euroscepticism is already hitting record highs. Europeans united to stop the last dangerous copyright industry power grab – the ACTA treaty. They may well unite again. I urge you to reconsider.

Here’s the worst of the plans:

1. Undermining the internet for the publishing industry

You’ve heard about the “link tax” – more accurately a new copyright on news articles that protects even tiny excerpts such as those often accompanying links. In Germany and Spain, publishers convinced politicians to introduce such a new right to try to force Google News to pay for the privilege of sending traffic to their sites. The laws backfired, providing not a single additional cent to publishers (let alone journalists). Instead, calling the freedom to link into question resulted in limiting readers’ choices and discouraging startups from competing with Google and working on innovative ways to keep people informed.

Everyone but a few news publishers agreed that this was a silly idea. Just look at this incomplete list:

To all of these concerns, Commissioner Oettinger turned a deaf ear. He has even clearly stated that this new law would not be about righting some wrong. Its purpose is instead simply to serve the bottom line of the big players in the European news publishing industry.

Even worse, Oettinger is not just trying to extend a failed idea to all of the EU – he’s proposing to extend its scope even further: The new copyright would force not only news aggregators to pay when they show excerpts of information from news sites, but also any other web service that comes in contact with online news like social networks and search engines. Germany decided that such extra copyright on news content (which loses its commercial value within days) should last for one year – but now Oettinger is planning to extend it to 10 years, and even lists up to 50 as an option!

How this would affect you:

• How you find, read and share articles today would be called into question: Aggregators like Google News or Rivva, apps that combine multiple sources like Flipboard or Apple News, optimized “reader views” in browsers, “read later” services and ad blockers, link sharing on social networks – these and many more would likely require expensive licensing deals with publishers. Your actions on these services may become legally questionable and/or these services unavailable or more expensive to you.
• Less innovation in news technology when licensing costs and legal risks discourage European startups and the development of new ways of keeping people informed.
• Less diversity in journalism if lesser-known publishers cannot rely on aggregators to reach new audiences and compete with the big players on a level playing field.
• Authors may get less money if this law entitles publishers to a share of copyright levy income but the impact assessment is correct that consumer prices would not rise.

Laughably, the Commission argues in its impact assessment that its plans would have a positive impact on the right to freedom of expression and information by “making the news industry more sustainable”. The opposite is true: It would directly harm the right to information for millions of people when linking to, aggregating and displaying news content on the web is made expensive and legally complex.

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2. Killing EU startups for the music industry

The music industry believes they are not receiving enough money from YouTube. Unfortunately, they can’t find a law that YouTube might have broken – so they must come up with new ones.

Service providers like YouTube currently have the obligation to act on reports of copyright infringement. Oettinger is looking to turn this principle on its head and legally force them to proactively negotiate with the music industry to acquire licenses for (or reach other agreements on) anything their users upload, as well as to build systems that continuously monitor uploads and scan for copyrighted content.

Here, the music industry did not get all they wanted: Originally, they demanded that YouTube should be directly liable for anything their millions of users upload. That would have given the industry an excellent bargaining position to demand more money – but the Commission rejected the idea.

That leaves us with a great irony: YouTube, the target of these actions, has already been voluntarily implementing these ideas for years. So the Commission’s response to complaints about YouTube is… to force all providers to act like YouTube. Who this is supposed to benefit is anyone’s guess. But the dangers are clear:

• This law would have devastating effects on European startups. Had the EU-based music site SoundCloud, beloved by up-and-coming artists trying to get noticed, had to comply with such onerous restrictions when they launched, they would have likely been overtaken by a non-EU-based competitor who didn’t.
• Besides, YouTube’s copyright robocop is deeply flawed. ContentID regularly takes down fan videos (like event recordings, lip dubs, reviews, home movies, etc.) that include bits of copyrighted content even when such usage is covered by exceptions and limitations to copyright. It’s just hard to make a bot understand the complexities of copyright law. So in effect, this new law could hollow out even further the public’s – and especially creators’ – already weak rights to reuse, comment on and quote existing works.
• Whether the problem YouTube’s copyright scanning solves is even significant is unclear, given that music accounts for just 4% of time spent watching videos on YouTube, and 75% of those views are of music videos voluntarily uploaded by labels and artists for promotional purposes, not ripped by evil pirates. Is that remaining 1% really worth requiring companies to negotiate with labels, develop complex and expensive technology and monitor all their users?

Oettinger thinks he needs to prescribe by law what YouTube is already doing onto startups that won’t be able to comply – and thereby kill EU-based competition and online innovation for no actual benefit to the music industry.

How this would affect you:

• Less creativity that builds on existing works as unintelligent robots enforcing copyright agreements replace judges enforcing copyright law
• Less innovation and fewer startups, setting the EU back even further in online business
• Even greater market dominance for YouTube, who is already complying with the law before it’s even passed.

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3. Upholding borders online for the film industry

The EU is supposed to be a union with a single market, and yet digital borders remain widespread today: Messages like “This content is not available in your country” block millions of Europeans from purchasing movies on demand or watching videos every day. Digital barriers split up language communities along national borders and deprive cultural minorities, migrants, travelers and language learners alike of access to culture. On the flip side, they deprive artists and European startups of a large audience and customer base. The Commission’s inquiries and consultations on the topic have proven that Europeans overwhelmingly support broad action.

But again, an industry has sabotaged any meaningful progress to protect themselves from adapting to changing times and realizing new opportunities.

At the behest of the film industry, Oettinger has given up plans to abolish geoblocking. He is refusing to propose the action that would reduce geoblocking significantly overnight: Stopping forcing video services to turn away customers from the “wrong” EU country. Industry contracts will continue to force services to discriminate between Europeans and turn away paying customers – artificially limiting the audience of VoD services and European films and cementing the dominance of Netflix.

This means that he has won the internal debate against Commission Vice President Andrus Ansip, who has been clear how much he “hates geoblocking”, and that “abolishing it is a must”. Oettinger has turned his colleague’s announcements into empty words.

While geoblocking of VoD and video sharing websites will stay the same, at least TV broadcasters’ online catch-up services will no longer be obligated to geoblock – though they will still be able to do so if they like.

How this would affect you:

• Discrimination persists – Linguistic minorities, long-term migrants, exchange students, etc. – 1 in 10 Europeans – will continue to be denied access to their culture online.
• Artists denied an audience – Many artists’ works will continue to be denied a Europe-wide audience – and fans ready to pay will continue to be turned away.
• Audiences locked out – Language learners, foreign sports league fans etc. will continue to be forced to pay VPNs instead of creators, or seek out illegal sources.
• The economy harmed – Up to 1.6 billion Euros worth of cross-border demand will continue to be kept from EU VoD platforms, EU startups and artists

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Now, the copyright reform plans do include a small number of good ideas: Some copyright exceptions are slated to be harmonised or made mandatory across the EU – though none that benefit creators or users: Online and cross-border educational institutions will be able to use copyrighted material for illustration in teaching, museums and archives will be able to digitise and make collections of out of commerce works available (if they pay collective licenses), and public research institutions will be able to conduct text and data mining.

But the list of glaring omissions is much longer: There will be no minimum standard for exceptions across the EU, no remix exception, no right for libraries to lend electronically and no safeguarding of works in the public domain when they are digitised. Digital locks (DRM) will continue to restrict legal usage of works and harm interoperability.

Oettinger could not even agree that freedom of panorama – the right to take and use photos of public space – should apply across Europe.

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This is not a copyright fit for the digital age. It’s a copyright that tries to protect the big players of the past from the future.

Europe’s publishing, film and music industries have clearly found that influencing Commissioner Oettinger to write laws is easier and more lucrative than adapting to progress and competing fairly.

If we let them get away with this lobbyism, protectionism and short-sightedness, the collateral damage will harm Europe’s internet users and internet industry for decades to come.

Commissioner Oettinger, you represent us as well – don’t make copyright reform into another ACTA!Tweet this!

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