In its attempt to make a digital single market for copyright content, the European institutions sacrificed the last word. Digital single, yes, but far from market economy.
A market is of course always regulated to some degree, but normally consists of independent actors making voluntary deals. Market economy has many fans across political ideologies. The single market is often considered the EU:s greatest achievement. The problem with the online market for is digital content it is so hard to control and thus so easy to monetize without permission. There are many well-known examples, in the early days file-sharing pirates claiming information-wants-to-be-free and more recently big tech companies ignoring (and pushing against) copyright rules. Intellectual property rights were always crucial to connect creative efforts with the economy (even the old Greeks: restaurants could have exclusive dishes for example). Digital communication accelerated the process, making infringement easier and protection harder.
European policy-makers therefore had many good reasons to look at copyright as part of the Digital Single Market-vision: European creative sector employs a lot of people, cultural diversity is a strong value in Europe, the economy moves from physical to immaterial investment, global competition and of course also out of principle. Enter the Copyright Directive, which was agreed by the trilogue yesterday after much friction. Except where it could have introduced free market mechanisms, the compromise rather looks to government, courts and societies to decide what is fair. Rather than demanding internet services make deals with the owners of the content on their networks, a forced licensing system is introduced. Instead of protecting creators, business partners and investors from unfair competition, a new loophole is gifted to internet platforms (“best effort”) – a sort of super safe harbor for large user-uploaded content platforms, allowing them to escape the responsibilities that current law places on all others. Mandatory clauses are introduced that can change the agreements made by creators and investors after the fact. What was meant to help European consumers and creative industries, more likely cements the big internet platforms status as market-owners.
No competition, no freedom of contract, no protection against unfair use. Anyone who thinks that sounds like a market, please stand up.