Europe's winding road to Copyright Reform

The Commission of the EU has made a proposal for an EU regulation on Copyright. The lead scrutiny committee within the European Parliament is JURI (otherwise known as (Legal Affairs) and they have appointed the Parliament's sole remaining Pirate Party MEP as 'rapporteur'. She published her report on 14th January and the press and interested parties have been commenting ever since. This story is published in reverse date order and covers some of the prequel, and some of the fallout from the report's publication.

I originally reported this as a LIBE jurisdication but , I have been corrected.

The New Statesman's Ian Steadman reports, reviewing the downsides of legal fragmentation, the raison d’etre of the Pirate Party, and picks up the proposals for harmonisation including that of longevity/duration where it is proposed that the Berne Treaty standard become the pan-European rule. The Statesman also picks up on reinforcing 1st sale rights i.e. the right to sell on one's property. It includes a significant number of quotes, looks at Reda's attempts to future proof the law and highlights the varied, if not unexpected, reactions. Neither the New Statesman nor most so called Copyright commentators labour the point that copyright harmonisation is a "Single Market" issue.

One of the key issues in Copyright is the oddly plural, "Limitations and Exceptions". In the UK, these have just been reviewed and changed by Parliamentary statute. In August 2011, I attended a seminar on what were then proposals for change, and wrote up my notes in a blog article. The Hargreaves Review looked at the fitness of purpose of the UK's intellectual property rights law and proposed an extension of the exceptions and limitations to make research easier, to formalise educational use and to legalise format shifting. The article below has pointers to the Hargreaves Review Report and the broadly, again if unsurprisingly favourable responses from COADEC and the ORG. The delay between the Hargreaves Review's report and its implementation with a final delay to legalise format shifting, shows the controversy within the UK's political parties and the final under scoring of the controversy is UK Music's decision to apply for judicial review over the legalisation of format shifting.

The Hargreaves Review and the final if grudging Parliamentary response suggests to me that there is little benefit from the Reda Report for the UK on the issues, except on duration, and possibly on the principle that hyper links are not copyright infringements. I thought that this was established in UK Law with the Rock & Overton ruling but several legal cases since seem to have contradicted this principle and laws to bind the European & British Courts would be good.

Amongst the commentators, Amelia Andersdottir, a Pirate Party MEP from the previous parliament is not happy, however, hidden in the weeds is the proposal that linking will be legal. Obviously she's not happy and argues that the EU Commission is more progressive on issues pertaining to database rights. So while the report fails to extend any radical agenda, it's possible as Reda argues that a more moderate agenda is more likely to succeed. It's also possible that by consolidating around the current consensus, the increasingly despotic demands of the content industry will be halted. Another thing to bear in mind is that some of the German (& Spanish) laws are stricter than those in the UK (and even the USA). So while the UK would see little short term change, other parts of Europe might benefit. Furthermore we shouldn't under estimate the importance of the German and Spanish language content & knowledge industries.

On the issue of copyright longevity I have felt for some time that the locus of the wrongness in copyright law is the excessive duration and at Labour Conference 2012, at a fringe meeting I proposed that copyright duration be reduced to 20 years.

Julia Reda posted the release of her report on her blog.

which I have rendered here....

Andy at Torrentfreak comments on the report, concentrating on the fitness of the law, it mentions Reda's proposed commitments on fair reward for artists as opposed to publishers and intermediaries, protection of the public domain, requiring public information to be classified as public domain, exceptions for education and research.

The IP Kat also reports on Reda's report, the IP Kat, unlike me, believes these changes are significant. On the legal framework, the report proposes some technical changes, which at one end could be significant as they play to the relationship between the single market treaties, the EU Fundamental Charter of Rights (which includes Copyright) and the European Charter of Human Rights (which does not). Reda proposes a single copyright framework ofr Europe, which is as to be expected, and to harmonise duration/longevity around the Berne Treaty minimum of life plus 50 years. Reda's report also proposes the mandatory pan-european harmonisation of exceptions and limitations together with a form of words which may act as the foundation of a "fair use" doctrine.

In October, a new Commission took office and the Kroes was replaced by Oettinger. Out-Law.com looks at a press statement made to the German press and records Oetinger's ambitions to reform the law and balance the interests of users, ISSPs, news organisations, and artistic creators. The Out-Law article also points at their post on the fall out from Hargreaves.

At ORGcon14, Amelia Andersdottir spoke of her hope that the EU's coming Copyright Regulation would be a bright light in what seems to be a losing war. I didn't take notes for that session, but I did report on Cory Doctrow's key note speech which reiterates the arguments about the anti-civil liberty costs of copyright enforcement and its failure to encourage creativity or reward it.

The IP Kat looks at some of the civic society lobbying of the Commission calling for greater harmonisation and also looks back to the immensely popular consultation exercise; I wonder if I helped as further below is my article on the consultation.

The EDRi also submitted evidence to the Consultation and document their submission in a blog posting. There were 9,500 replies, which is higher than some, but was to be exceeded in orders of magnitude by the consultation on TTIP, the US-EU so called free trade agreement.

My evidence/submission to the EU's consultation, which covers limitations and exceptions, legal certainty and restricted licensing, particularly for low value and or non-commercial use, balance of fundamental rights, longevity, the impact of DRM and criminalisation of security research and proposing redress not punishment.

Andy at Torrentfreak, in 2013, comments on the EU's public consultation plans on Copyright reform