Making European copyright fit for purpose in the age of the internet

Earlier this week Michael Barnier, a Member of the European Commission responsible for Internal Market and Services, gave a speech, Making European copyright fit for purpose in the age of internet. In it he discussed whether the EU legal framework related to copyright was “fit for the digital age”.  He said that although “it remains largely valid today”, it does require some recallibration so that it remains “a modern and effective tool”.

He outlined four principles to be kept in mind in formulating changes that may be necessary.

First, the copyright framework must facilitate the access of all Europeans to their heritage.

Second, the framework must pass the “Single Market test”, making more content available to more citizens, cross-border.

Third the framework must provide the right incentives for those that create and invest in content. On this principle, he said the following:

I want a copyright framework that provides the right incentives for those that create and invest in content and that ensures the right balance with other policy objectives such as education, research or innovation

We need an equilibrium. Copyright enables rights holders to function in commercial markets. Removing rights goes quite far: it removes rights holders ability to authorise the use of their content, or to gain reward for their investments. So when can a limitation on these rights be justified? And when should users better acquire a licence to use others’ rights for their own commercial gain?

I am open to discuss this and to evaluate the need to update our system of limitations to copyright.

I have already done this with the Orphan Works directive. I continue to do it at international level in the context of the current negotiations on a Treaty for the benefit of the visually impaired.

Going forward I want to see if more harmonisation is needed to update the existing limitations and to ensure their cross border effect. For instance does it still make sense that a European library cannot lend a book to someone just because he or she happens to be across a border?

But let me be crystal clear:

I do not share the view of those that think copyright protection should be weakened so others can develop new commercial services free of cost. This would simply amount to legislating for free-riding: shifting wealth from the content industries – many of which are based in Europe creating jobs and paying taxes here – to other industries.  This cannot be right.

We need to ensure that bargaining power and the capacity to invest and innovate remain fairly distributed along the value chain. If this is not the case, we all lose, in the end.

The right balance between rights and limitations is one that preserves the necessary incentives for licensing.

Again, I want to discuss with all stakeholders how to create win-win situations. To develop innovative services while respecting copyright and the market opportunities it provides from “one click” licences for small users to model licensing clauses for text and data mining.

Fourth, the framework must include meaningful enforcement. On this principle, he sated the following:

A copyright framework that continues to provide incentives must include meaningful enforcement.

With the crisis it is more than ever necessary to eliminate illegal business models that are based on IP infringing activity. This is how we can pave the way for legal offers, especially by innovative start-ups and SMEs. This is also how we transform “informal” economy jobs into real, sustainable job opportunities.

So this is my vision,

A vision in which copyright supports creation, and creation supports distribution and innovation.

To make progress, there can be neither taboo subjects nor miracle solutions: modernising the regulatory framework is not a taboo subject in the same way that exceptions to the exclusive rights of authors are not miracle solutions.

The resolution of many of the problems I have referred to remains in the hands of the main actors in the market. I want to work with industry, and I want industry to work together. To redouble our efforts. This is why I will propose to launch a new partnership with industry, “Licensing Europe”: to deliver concrete progress. From mapping the problems to delivering pragmatic solutions.

We want to guarantee European citizens’ access to quality content.

We want to make it possible for creators to make a living from their work and for service providers to propose innovative business models.

To achieve this we must base our proposals on precise data and serious analysis. And we must engage all parties concerned in the process, in a spirit of partnership.

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