Ansip’s ”More European” Copyright Framework Early Xmas Gift to Big Tech

Santa Claus has come early to Silicon Valley this year, and he looks uncannily like European Commission Vice President Ansip. The copyright proposal presented today is dressed up as being ”more European”. Yet, on closer inspection, it looks much more like it’s tailored to the agenda of the American internet giants.

Portability of digital content service is the main job, the idea that European consumers can take their subscriptions along with them when travelling within the union. The Commission seems to want to connect this to the issue of roaming charges. And while they may appear to be related at first glance, we do of course use our mobile phone subscriptions very differently from media content.

Yes, I like to call home when I’m travelling and, for people who call my mobile, the only give-away that I’m on the road is that the dial tone sounds different. That is the magic of global telecommunication: connections across vast distances and the ability to be present when far away. So hats off to the European Commission on the roaming decision.

In contrast, the appetite for portability of media services is small. The Commission’s own Eurobarometer study from August this year shows that 95% of respondents are not interested in taking digital services on the road. Remember how travel used to be before the internet? On a good day, the hotel would have some newswires from your home country, and if you were really lucky a couple of three-day old papers. If you happened to be in a major city, you could get yesterday’s papers at the train station. Now, however, you can read the news on your mobile phone at the beach or in a business meeting, wherever you are. If or when data roaming is lifted, the last obstacle will be gone.

The appetite for portability of media services is small. The Commission’s own Eurobarometer study from August this year shows that 95% of respondents are not interested in taking digital services on the road.

Entertainment is a different story – you can always catch up on Game of Thrones, Downton Abbey or The Bridge once you’re back home. Music? Sure, but most subscription services offer offline playlists. Sports? Maybe, if it’s a really important game. But in most cases you can find the match with a local broadcaster (and if not, that usually means there is no commercial value – like for Baltic football leagues – so the feed is available with no geo-block). It’s obvious then that for the consumer, roaming is a much bigger issue than portability of digital services.

So if the Commission’s latest communication isn’t an early Christmas present for the European consumer, who is it for? Well, certainly not for the European culture creators and media companies who want freedom of contract and the ability to protect the integrity of their work. Every limitation, caveat and restriction imposed on rights-holders’ choice of whom to distribute their content means that plummets. This is obvious and logical. (The same is true for exceptions – every exception takes away from the value of the property, making it a less interesting potential investment and reducing the price). The policy-maker can argue that it’s worth reducing the value because something else is more important, but that can never be in the interest of the creators without whom the work in question wouldn’t exist. Granted, portabililty is a much smaller restriction to the creators’ freedom of contract than some of the ideas that were bounced around earlier in the digital single market-thought process, but it is nonetheless a compromise at best; something the creative sector can live with, but not something it wanted. If the audience’s appetite for taking subscriptions on the road was as big as the Commission seems to think, the distributors would offer that within the current framework of territorial licensing, keeping the value of the content intact. Bear in mind that the investors that pay for this content are in most cases European companies, so from a strict financial stand-point, this policy reduces the value of European investment which can hardly be the goal for the European institutions. Of course it’s great if market barriers can be lowered and bureaucracies simplified, but this is a measure forced on the businesses affected.

So if the copyright proposal is not for the European consumers and not for the European creators, then who is it for? Eurocrats, some would say. The Brussels Bubble expats can finally get access to media  from their home countries. But it would be unfair to make this the main reason. Sure, Vice President Ansip may be guilty of using a narrow frame of reference for his rhetoric, but that sin is popular across the board and not only at rond-point Schumann. No, the real reason is to boost business for the big tech companies. The Commission says so itself in its press release, using Netflix as an example. Rather than giving Netflix an incentive to license films in Poland, the Commission wants to allow Netflix subscribers from other countries to take their subscription with them when they go to Warsaw or Krakow.

Other measures, such as extended copyright exceptions, are advocated by big data companies who need to keep feeding the machine’s ever-increasing hunger for more data. The already dominant players from Silicon Valley will be even more dominant with this policy, and the competition action brought against Google (and previously Microsoft) as well as the ECJ’s ruling on safe harbour can do little to balance that tectonic shift. For sure helping US tech is no ambition of the European Commission, which has honest intentions and hopes to create jobs, growth and home-grown digital challengers. Except the growth is jobless, the ad dollars end up in the balance sheets of Facebook, Amazon and Google and the best bet for European digital challengers is to be acquired by one of those. Europe’s real digital opportunity is in creative content, cultural diversity and more investment, but that requires a different policy altogether.

Is there nothing good to report? Yes, the initiative on enforcement will be welcomed by the creative sector, the ”follow the money”-approach makes sense, but many will say it’s not enough, because it never is. The only real answer is to involve the internet service providers and search engines. But they were left out of the list in the press release.

So dear Santa, by all means, ride your sleigh all the way to California, find out whether GAFA has been naughty or nice, and watch the smiles on their faces when they unwrap the generous Christmas present. But don’t tell us it’s more European.

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