The European Commission's consultation on copyright is a symphony of missed opportunities

This post originally appeared on IP strategist Joren De Wachter's blog.

The European Commission, responsible for the so-called 'single market', has opened a public consultation in a bid to find out what citizens think about copyright, and the “review of the EU copyright rules”.

Don't bother with it now in case you had no clue - the consultation was only accessible until last week. Actually, scratch that.

As Glyn Moody points out on Twitter, the deadline for the consultation has been extended, which makes this feature piece even timelier.

Either way, the consultation is part of a very commendable approach, where the Commission opens up more and more issues of policy to public consultation. There are some issues, though.

What is copyright, and why does it matter?

Copyright is important, of course. In the age of information technology, where everyone agrees that the future belongs to those who innovate and are creative, copyright plays a key role.

So, before we analyze the EU's consultation document, let us remind ourselves of what copyright is.

Copyright is a system of distribution and reproduction monopoly on the creative expression of ideas, granted to authors or creators of content (books, music, film, video’s, photo’s, etc). That monopoly is then freely transferable to distributors, producers and publishers, who will try and bring the content to market, and enforce the monopoly.

The basic deal of copyright consists of the author getting a time-limited monopoly (for the duration of the life of the author, plus 70 years). 

During this time, the author (or the business who has acquired the copyright from the author) can block any other person from reproducing or making publicly available the protected content, but also from creating something based on the first content (e.g. by recombining works from different sources or using someone else’s work as a basis to create your own).

The Internet and the digital age pose huge challenges for copyright, as I'm sure you knew. The underlying reason is simple: before the Internet, it was relatively difficult and expensive to copy. Today, the basic principles of copyright still date from the late 19th century; the Industrial Age.

As a result, important questions arise.

Is copyright fit for the 21st century? Who does it benefit, and are those the ones that should benefit?

Does it actually promote creativity, or restrict it? And if we need change, what should it be?

A spotlight on the consultation

In this article, we will address whether the Commission’s consultation document asks the right questions to begin with. Because, without the right questions, you won’t get much useful answers.

1. Too much complexity

This is what the consultation looked like: 35 pages, with more than 80 questions, several of them with sub-questions. The whole of it interspersed with complex and long legal explanations.

By taking this very complex approach, the consultation properly reflects the incredible complexity of today’s copyright. Yet, rather than questioning why this complexity exists, or which purpose it serves, the document accepts the framing of incredible legal complexity.

As a result, the questions are complex and often very vague.

Luckily, there is some help at hand. The website copywrongs.eu tried to provide help by focusing on problems, rather than the underlying framework. Also MEP for the Pirate Party Amelia Andersdotter has published a guide on how one is supposed to answer.

And yet, the important aspect of this complexity is that it reflects the way in which copyright has become completely unmanageable. Since copyright arises automatically, upon the act of creativity itself, it exists at many levels.

Moreover, copyright law has added many levels. A finished product like a music video has so many different levels of copyright that it would take half a page to list them all. And each of those content creators has a distribution and reproduction monopoly that can reach very far.

The consultation therefore reflects the many levels of special interest that have made copyright so complex over the years, the result of decades of intense corporate lobbying.

While the consultation addresses one key issue that could help in this respect (i.e. whether copyright should be linked to a system of registration – which, in today’s digital world is a total no-brainer), in no way does it address the existence of the incredible complexity itself as one of the root causes of copyright’s problems.

And that is a missed opportunity.

Because very complex legislation and regulation is a major hurdle to startups and innovative entrepreneurs – they simply don’t have the means to attack and understand the complexity, or to know what is allowed and what is not.

In that respect, the interests of startups and creative entrepreneurs were not really addressed by this consultation at all.

2. Too much simplicity

Conversely, from an economic perspective, the consultation is suffering from a dangerous simplicity.

One of the key problems of copyright is the fact that no real distinction is made between the creative people (those who actually create the content) and the subsequent economic operators that distribute and market that creative content. They are all called indiscriminately “right holders”.

Yet it is the overreach of copyright across the value chain, allowing the non-creative activities of distribution and marketing to hold monopolies, nominally in the name of promoting creativity, that is a major cause of the copyright issue.

A musician does not have the same interests as a record company – as has been clear since the destruction of the distribution monopoly of those record companies since Napster.

Yes, the income of record companies has declined by two thirds. But consumer spending on music is up, and the percentage taken by musicians has risen significantly (and the total amount of music available has literally exploded).

By putting all these economic actors in one bucket, and treating them all as “right-holders”, the Commission accepts the economic framing set up by the corporate lobbyists of the distributors/marketers of the creative economy.

In addition, the Commission also ignores clear evidence that the dead hand of copyright is effectively locking up most of the creative output of the 20th century.

In doing so, the Commission has missed another opportunity to look at the actual framing and underlying reality of copyright, rather than accepting the old 19th-century framing of the discussion.

3. The purpose of copyright, and the conflict of interest

The basic purpose of copyright is twofold: the moral aspect wishes to make sure that the author is recognised; the economic aspect provides for a distribution and reproduction monopoly, that should reward the author and incentivise him or her to create more.

While the consultation document focuses very much on the economic aspect of copyright (the expression “moral right” appears only once, but never as part of a question), those economic aspects, in turn, never focus on the raison d’être of copyright – which is to promote creativity. In actual fact, the word “creativity” does not appear once in the document, and the word “creative” only twice.

And this is no coincidence; the incredible complexity of the issues underscores that the consultation is clearly aimed at the current users/beneficiaries of copyright – those distributors and right-holders that extract the rent from the distribution monopoly of copyright.

In effect, who else can spend half a day trying to figure out the complex questions on how different elements of “fair use” work at national vs European level?

In today’s world, infringing a copyright can theoretically result in very harsh penalties. And yet, claiming copyright unjustly, carries no penalty whatsoever. A key issue that goes completely ignored.

Again, this is a missed opportunity – nowhere does the Commission actually take a larger look – the whole focus of the consultation is on the system as it is today and how we can tinker with it; but it ignores that the system looks fundamentally broken.

4. Technology, and innovation

While the consultation aims to gather feedback on the effect of technological development on copyright (i.e., how can we square the circle of a giant copying machine, aka the Internet, with the principle that every copy is forbidden, unless allowed through licensing, paying or complex exception rules), nothing in the document reflects the effect of copyright on technology.

There is not a single word on copyright in computer code, arguably the largest economic impact of copyright. The effect of copyright on code is completely and utterly ignored.

Worse, the most innovative aspects of copyright that have emerged over the last twenty years, the concepts of open source and creative commons, are also completely ignored.

Neither of them were mentioned, even in passing, in the consultation.

Other issues caused by technology, such as content created by machines (where no human creativity occurs), but where copyright is claimed where it should not be, are also absent. And nothing in the consultation document looks forward to the potential impact of new technologies in the future. That is worse than a missed opportunity. It is wilful blindness.

Add to that a rather absurd approach towards technology, illustrated by questions such as “do you believe hyperlinks should be protected by copyright” (YES meaning that when you click on a hyperlink without previous authorisation, or you copy a hyperlink onto your blog without authorisation, you would be a copyright infringer; and last time I checked, infringement is still a criminal act).

Conclusion

The European Commission's consultation is an exercise in missed opportunities.

It delves straight into the incredibly complex issues of many overlaying levels of exclusive rights, typically held by distributors who want to extract rent from their monopolies.

Their problems, which is that they find themselves confronted with the simple fact of abundant, ubiquitous and costless copying and recombining, seem to be taken at heart.

But the interests of all other parties are largely ignored or not addressed.

No mention of the interest of protecting the public domain (the term “public domain” figures once). No mention of the great possibilities if we would allow startups and entrepreneurs to freely re-use and recombine things.

And a complete lack of understanding that the very framework of copyright, based on its 19th century assumptions, is completely out of date.

In doing so, it looks like a consultation written by special interest groups for special interest groups.

And that's a damn shame.

Featured image credit: Constantine Pankin / Shutterstock