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Breadth of EU Copyright Review Evident in 11th Hour Extension

· February 7, 2014

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Last week, on the eve of the initial deadline for a sweeping and heavily debated copyright consultation, the European Commissioner responsible for internal market affairs, Michel Barnier, announced a 30-day extension of the comment period. Via Twitter Friday night, Barnier cited “strong interest” as the reason for this unusual move — interest which reflects the breadth of the consultation. (The initial deadline for submissions had been set for February 5.)

This move raises interesting questions with regard to accepted conventions on good governance. Let’s be clear about it: rejecting all requests for an extension at the very beginning of the consultation process to only extend the deadline at the very end of it is not exactly a gift – even if useful for all stakeholders dealing with the document of 80 detailed questions.

The Commissioner had even more to offer. Only two days ago he announced in front for Members of European Parliament gathered in a Strasbourg plenary session that the Commission will present a White Paper on copyright before the summer. The White Paper will essentially set the tone for copyright reform for the new College of Commissioners once in office at the end of this year.  (The U.S. Commerce Department recently released an extensive Green Paper of its own on the subject of copyright, and other governments have also similarly taken up the task of modernizing copyright.)

One has to admit, however, that the reason for the extension is spot on. There is “strong interest” indeed, which has to do with the fact that the Commission is asking questions on almost every copyright-related controversy. From the perspective of Internet businesses and users some issues are foundational.

How about this question:

“Should the provision of a hyperlink leading to a work or other subject matter protected under copyright, either in general or under specific circumstances, be subject to the authorization of the rightholder?”

A similarly pivotal one:

“Should the viewing of a web-page where this implies the temporary reproduction of a work protected under copyright on the screen and in the cache memory of the user’s computer be subject to the authorization of the rightholder?”

One could simply paraphrase these questions into: would you like to break the Internet as we know it and criminalize Internet users for viewing a web-page?  These questions are not theoretical; they are currently in front of the Court of Justice of the EU (CJEU). The linking question is at the core of the Svensson case which is expected to be handed down on 13 February. So arguably, in a week we will know whether Internet users daily activities like posting on social networks (41,000 posts per second on Facebook alone), writing blog posts (36 million new posts per month on WordPress alone), interacting and sharing with others including comments, recommendations and suggestions remain legal or not. Needless to say, expectations are high the court will not subject hyperlinks to copyright protection – in tune with the opinion of highly regarded legal scholars.

Equally interesting is the question on browsing which the UK Supreme Court has referred to the CJEU in the Newspaper Licensing (Meltwater) case. If an authorization for necessary, temporary reproductions were to be required, millions of Internet users would infringe the law by merely browsing the Internet. In Europe this would directly touch on citizens’ fundamental right to receive and impart information as well as on their right to read. In recognition of this, the UK Supreme Court has de facto solved the case and concluded that merely viewing and reading content has never been an infringement. The reference to the CJEU for a preliminary ruling remains interesting, as one gets the impression the UK court tries to push the highest European court into following its reasoning. That’s not a bad idea: to clarify, for the whole EU jurisdiction, that browsing falls under the only mandatory exception to the reproduction right would make copyright law a bit more sensible to citizens.

In this regard the consultation comes at the right time even though the decision to actually do something with Europe’s copyright acquis will rest with the new Commission. There are also interesting questions on the degree of flexibility in the regulatory framework for limitations and exceptions. While EU copyright law does not have a flexible ‘fair use’ doctrine, acceptable uses of copyright protected work that do not require permission from the right holder are governed by a closed list of more or less precisely defined exceptions and limitations. Having such a closed list combined with the fact that the vast majority of exceptions are optional for Member States makes the system far less adaptable to technological progress. This means that the system takes citizens and digital innovators hostage as they face greater restrictions and legal disharmony across Europe. If you want to benefit from economies of scale and roll out European-wide services, that’s clearly a stumbling block.

Looking back on the 13 years since the Information Society Directive, it is clear that legislators could not foresee, and account for, the changing behaviour of people and technological progress. Since the 2001 Directive we have, for example, seen the development of user generated content and search engines. Neither could have been anticipated, both are now fundamental to how we live, to our economies and the way we express ourselves. The copyright system must either be flexible enough to accommodate these developments or citizens may fall out of love with the system, and innovators will do their business outside Europe.  Maybe it is issues like these which made people understand that copyright has certainly ceased to directly affect only the few and in a digitally connected world affects everyone using the Internet. The new deadline for the EU copyright consultation is set for 5th March, a good opportunity to translate  “strong interest” into action.

Jakob Kucharczyk is Director in the Brussels office of the Computer & Communications Industry Association.

European Union

DisCo is dedicated to examining technology and policy at a global scale.  Developments in the European Union play a considerable role in shaping both European and global technology markets.  EU regulations related to copyright, competition, privacy, innovation, and trade all affect the international development of technology and tech markets.