In Working on Copyright Reform, the EU Faces Some Familiar Dilemmas

As the European Commission gathers this week to consider EU copyright policy, and possible reform of that policy, interest groups are lining up to lobby the Commission, and their arguments are a well-worn set, indeed.

The opening paragraphs of a debate primer of sorts that has been distributed to the EU College of Commissioners sets out the central issues that the Commission is to consider. To anyone who has been following the ongoing debate about copyright reform on the U.S. side of the Atlantic, the verbiage will ring quite familiar:

Copyright is the universal means to reward creation. There is, however, an active debate about whether the copyright framework remains fit for purpose in the digital context. The creative industry in general underlines the importance of copyright for ensuring remuneration of their work and providing the incentives to produce content. Others argue that, in its present form, it may be an obstacle to innovation and growth. Citizens increasingly voice concerns that copyright laws hinder what they view as their freedom to access and use content. Experience shows that many of them would rather pay for legal offers than use illegal content, but they often do not know whether what they download, stream or share is illegal. Businesses increasingly argue that the current copyright model is a barrier to developing the business models they consider necessary for the digital economy. These consumers and businesses agree, for different reasons, that copyright rules have to be made more flexible and their views were a major factor in the rejection of ACTA. The growth of Pirate Parties in some Member States is another indicator of this trend.

Among the many complex questions the Commission hopes to address in its debate:

“How to mitigate the effects of territoriality in the Internal Market… by looking at all options, including introducing a “country of origin” approach or an approach based on the “targeting” of certain publics. This needs to take into account the fact that some restrictions on the provision of services are commercially based and not related to copyright.”

“How to improve enforcement. Any change in the copyright directive will have to be mirrored in parallel revisions of the Enforcement Directive…. The impact of a possible copyright reform on fundamental rights, as well as the consequences on the EU’s international obligations in the field and on the EU’s position towards third countries would also have to be assessed.”

“[P]rivate copying levies should also be addressed. Twenty Member States have national legislation on private copying levies for goods which can be used to produce copies (such as MP3 players and computers, blank DVDs). As a result of these levies, the prices of these goods vary widely across borders. In recent years manufacturers have increasingly complained about this approach while rights holders continue to strongly support it.”

Those are just a few of the head-scratchers the Commission needs to address, and I haven’t even mentioned text and data mining, user-generated content, fragmentation of EU copyright across 27 national territories, or any of the myriad fair use issues the Commission is going to have to wrestle with.

So, gentlemen… what can I say? The task before you is a daunting one: Good luck with it!