The European Union seems to produce plenty of initiatives and ideas in the area of copyright in the digital world. Recently, an unusual team consisting of 3 European commissioners (Barnier, Kroes and Vassiliou) set out the actions to ensure that copyright framework stays fit for purpose in the digital environment. A communication adopted in late December 2012 identified the areas of analysis, debate and (possibly) solutions to be discussed with stakeholders: cross-borders barriers; user-generated content; audiovisual and culturale heritage; text and data mining. In parallel, the European Commission will work on its on-going review of the EU copyright framework, based on market studies and impact assessment and legal drafting work, with a view to a decision in 2014 whether to table the resulting legislative reform proposals.
The problem with such initiatives is that they represent the umpteenth “problems setting” exercise in a digital world which is running and changing faster than the heads of Brussels believe. Instead of a clear an immediate action, the Commission is engaging in continued analyses over the digital sector with the aim to collect best practices, encourage voluntarily agreements and eventually come out with some proposals. Since this process may be completed only at the end of the 5-years mandate (2014), then it will up to the new Commission (in 2015) to eventually act. But the new Commission will not be bound by the mere proposals suggested by the former one (unless a formal proposal is tabled and approved before the end of the mandate, which is very unlikely).
In other words, while the debate is going on, concrete results are unlikely to occur in a reasonable time. This is really disappointing, since the need to reform the copyright in the online environment is urgent and old, as it was already invoked and identified in due time by many stakeholders (and in fact there is a mention thereof even in the European Digital Agenda in 2010). The question is why an entire Commission’s mandate (2010-2014) was not sufficient to provide a solution. There are many reasons for that and in fact the answer is complex.
Firstly, one should consider that the competence for a copyright reform became a matter for internal confrontation within the offices of the Commission. Thus, the involvement of 3 European commissioners in the same project reflect tensions and search for a compromise. Mr. Barnier, the European Commissioner for the Internal Market, remains cleary competent for the copyright reform, however this power must be split with others now, although on the basis of a vagous political agreement rather than on a clear distribution of competences. In general, a decision-maker would never be happy about such a solution: however, if there is some resistance to take a decision, then this complex architecture may become an alibi.
Secondly, since the start of Barnier’s mandate in 2010, his offices have been permanently and strongly lobbied by the copyright industry aiming at solving the problems of the digital market with the unique instrument of repression. According to copyright industry, piracy is the main problem to address in the digital economy and therefore repressive measures are justified, such as: internet filtering; website blocking; Internet disconnection; consumers’ fines; public pillory; and so on. The Barnier’s offices have never been too keen to follow this path, also considering the opposite view (and analysis) of consumers, civil society and telecom industry. However, since the copyright industry is the natural constituency of DG Internal Market, the offices tried to convince the telco industry and other concerned stakeholders to enforce on a voluntarily basis some of repressive measures recommended by the copyright holders. The idea did not work out, however: consumers associations did not join the discussion (they likely felt a trap), while the telco industry refused to sign agreements which would create obligations and liabilities not envisaged in the relevant European directives. The civil society was never really involved in the debate.
Thirdly, an unexpected court tsunami dramatically changed the balance of the debate. Between 2011 and 2012 the Cort of Justice of the European Union destroyed the legal paradise of the copyright industry. With the Sabam/ Scarlet and Sabam Netlog cases the European judges decided that repressive measures, such as filtering for instance, are in general disproportionate, contrary to privacy principles and fundamental rights in general, and also illegal vis-à-vis the freedom of business of the telecom operators. Such new jurisprudence completely unbalanced the debate: the copyright industry, which for long time have been attacking on the basis that repression is the solution for everything, had to step back and it started a positions defensive war. Thus, since repression was not possible anylonger, they decided to resist at any cost against any other proposal, including the reform of copyright.
Finally: the panic, i.e. the ACTA and the ITU debates on Internet copyright and Internet freedom. Irrespective of the merits of these treaties, it became clear that such matters are politically sensitive and politicians must be very prudent when proposing regulations. ACTA failed because the initial untrasparent negotiations constituted an original sin which was never cleaned up, even when the last versions of the treaty had solved most of the reasons of concerns. The same lack of transparency of procedures as well as clarity of intentions was the cause of the collapse of the ITU agreements in Dubai in December 2012. The European Commission learned the lesson and became very prudent.
All the above give us a key of comprehension of the current scenario. While a structural rethinking of copyright for the digital sector is urgently needed, as it is clear since years, Barnier does not seem adamant to complete his term with a reform. The new wave of analyses, studies and workshops, about problems and possible solutions (which have been partially already debated in the past) are legitimate but may also become instrumental to delay decisions. Kroes is taking part to this exercise because she needs to show care for her stakeholders (telcos and Internet users), while she is reinforcing her competences and profile. Mrs Vassiliou, bringing the cultural diversity as a valuable resource of the EU but also as an alibi for not going too far, completes the family picture.