Legislative time travel: 2001 a Copyright Odyssey

If you could go back, knowing what you know now, what would you change about the 2001 Copyright Directive?  This seems to be the premise for Julia Reda’s evaluation draft report on the much maligned directive.  But is this the right way to do it?

Hindsight is fantastic (I bet those developers who started building their businesses on the future of Google Glass wish they had had an app for it) but the evaluation of any legislation has to start from the objectives of that legislation.  The objectives of the 2001 Copyright Directive were never to ensure cross border access to works or cultural exchange (other pieces of legislation already aimed at achieving this e.g. the 1993 Cable and Satellite Directive, the 1989 Television Without Borders Directive) or simplify licensing procedures.  The negotiations were long and hard and the Directive did its best to achieve its objective of harmonising, where possible, and limiting future divergence on copyright among the Member States, most notably on rights and exceptions.  It was also meant to make copyright ready for the information society and to respond to the economic realities such as new forms of exploitation of works on the internet.  What is interesting is that the legislators considered that no new concept was needed. This is the best guarantee of future-proof legislation: to refer to principles rather than inventing new concepts for every new technology. The E-Commerce Directive was established a year before, in 2000.  In contrast to the Copyright Directive, it was a technology oriented piece of legislation designed to address information society services as new operators. It provides for liability exemptions for internet service providers conducting caching, mere conduit and hosting activities at a time when YouTube, Facebook, Amazon or Netflix did not exist. The Directive has been challenged by the arrival of these new online operators who fall between the cracks of the different definitions.  Certain elements of the AVMS Directive also suffer in the same way. It is nigh on impossible to future-proof legislation.  New services will always develop which challenge existing business practices and models.  But the less the legislation addresses specific technologies, the better it resists. And in this context, the Copyright Directive is far more future-proof than the E-Commerce Directive. The foundations of authors’ rights are, however, simple – empower authors to have artistic control of their works and to be able to make a living from their creativity.  In addition, many of the criticisms of copyright are not copyright problems.  They are investment problems, business model problems, competition problems, etc. Julia Reda’s draft report goes very far in its proposals to completely overhaul the Copyright Directive.  It represents the pirate party programme, not an assessment of the implementation of the Directive.  There are attempts to please authors by calling for improvements of their contractual position. However, there is no concrete proposal in this area and generally an underlying lack of understanding of how authors’ rights work for audiovisual authors and how territoriality finances works in the audiovisual sector. Ms Reda wants to shift the focus to minimum rights for users in terms of what they can do with creative works across borders.  She proposes extreme reductions of the term of protection and the scope of rights to ensure this. These extreme proposals could be seen as a tactically astute way of ensuring a starting point for negotiations. The pirate in the European Parliament does not define the whole institution’s line, however.  This will be an early litmus test of the position of the European Parliament and the different political groups ahead of the Commission’s expected legislative proposal. JT/CD