“Copyright Reform Is Where Commissions Go to Die”

The Digital Single Market is the European Commission’s grand plan to fix jobs and growth. Netopia readers may have followed this writers’ analyses on jobs and growth, from the leaked documents and comments made by the man in charge, vice president Andrus Ansip. On Wednesday, the strategy was formally presented. The European Commission wants to increase digital cross-border trade in Europe, but in the balance are the member states’ sovereignty over the radio spectrum and the freedom of contract for digital businesses.

Confiscation of Intellectual Property

– A majority of member states have asked for the Digital Single Market to happen, said vice president Andrus Ansip to the Brussels media that gathered for the briefing.

– You speak about win-win situations, but why then is the creative sector so critical of the digital single market proposal? asked Netopia.

– They may have been negative early in the process, Ansip replied. There was an impression that we intended to change the system based on territoriality. But I’m in favour of territoriality, but not supporting the principle of territorial exclusivity.

This may convince the believers, but the creative sector clearly remains skeptical. And Ansip’s attempt to establish a difference between territoriality on the one hand and territorial exclusivity on the other is nothing but confused. One of his aides tried to make things clearer in the follow-up session, explaining that ”blocking based on where you are will not be allowed”. No comfort for creators then, if the Commission has its way, they will no longer be free to make the contracts they like: even if no-one wants to pay the price for a particular territory, the rights-owner would be forced to provide the content anyway. Confiscation, as opposed to geo-blocking, is le mot juste.

Safe Harbour Is Holy, Unless the Public Says Otherwise

Another part of the proposal talks about intermediary responsibility, which is a concept Netopia has always supported (that’s not to say that Commission got it from here!). The problem is that the guiding principles of digital legislation and trade agreements is the opposite: safe harbour. No responsibility of the intermediaries for how the service is used. This is sometimes described as ”the internet is like the post office”, or, put differently, a business model where the platform owner or network operator can get the cash but avoid the responsibility. So this creates another difficult tightrope for the European legislator to walk.

– Is this the end of the safe harbour-princple? asked Netopia.

– it is clear in the documents, answered Roberto Viola, deputy director general for DG Connect. Safe harbour is the principle that made the internet flourish. It’s fundamental. At the same time, we have to look at the large actors who have an impressive amount of information. Therefore, we will make a public consultation to what level of responsibility they should have.

So it’s not one or the other, but both: it is obvious that the safe harbour-principle makes it impossible to keep the same rules and societal mechanisms online as in meatspace. Wrong-doers can all to easily hide behind anonymity and the assurance that the enablers cannot be forced to take action. But on the other hand, safe harbour is a great line with lots of vocal supporters. Letting the public consultation make the first point may be a smart way to open the discussion. ”It’s not our idea, they’re telling us to do it”, or something along those lines.

And then it’s the member states. Vice president Ansip may be right that they want the digital single market, but many tough negotiations area round the corner for the Commission to convince member states to give up on the natural resource of spectrum and taxation, things like digital VAT tresholds.

That’s not to mention the copyright reform, now expected ”before the end of the year” (used to be before summer, then middle of the year). As Hosuk Lee-Makiyama, Director of Brussels think-tank ECIPE commented in a different seminar: ”Copyright reform is where Commissions go to die”