I had a dream... Of a Copyright Reform

My colleague Alexandra Combes writes: Once upon a time, the 1886 Berne Convention was the only text governing copyright legislation both at International and European scale. In 1991 however the WIPO authorities decided that the convention should...

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My colleague Alexandra Combes writes:

Once upon a time, the 1886 Berne Convention was the only text governing copyright legislation both at International and European scale. In 1991 however the WIPO authorities decided that the convention should be renewed to adapt to the digital environment. The public Internet was in its early stages then, but an expert committee was judged competent enough to define a set of rules to apply to the barely born information society. The same year, the European Union adopted a directive saying that software should be subject to copyright, which, as such, was not a bad step forward.

The daily arrival of new technologies on the market did not make the experts’ task any easier though, getting them more and more confused day after day. In December 1996, a conference was finally held in Geneva to gather inputs from all over the world. After eighteen days of tough negotiations, the so called WIPO Copyright Treaty (WCT) was adopted. It was implemented in the United States in 1998 with the Digital Millennium Copyright Act (DMCA), and in Europe in 2001 with the European Union Copyright Directive (EUCD).

This is just where all troubles started. By imposing legal remedies against the circumvention of technological measures used by authors in connection with the exercise of their rights, the WCT opened a Pandora’s Box that would harm internet freedom for generations to come. Five years later, despite unprecedented mobilisation of civil society organisations worried about privacy, access to authorised content and effective competition, the European Union adopted its Copyright Directive. In this shameful document, rights-holders as opposed to authors would now be the ones benefiting from the law, and technological measures - in other words, digital restriction measures (DRM) - would be legally protected for whatever content the rights-holders would judge worthy of exploitation - giving them full control over the definition of the subject matter independently of the actual law of copyright.

So that’s the historical background. Thirteen years have now passed and there’s no need to provide examples here of the damages caused by the EUCD. Finally, politicians slowly started to get the idea that there is something wrong with the legislation and that instead of adapting copyright law to the information society, the directive does in fact quite the opposite, hampering a healthy development of the latter. The Pirate Party greatly helped in bringing awareness on making the truth shine - see notably "The Case for Copyright Reform" by Christian Engström and Rick Falkvinge. Other initiatives also spread the idea that another copyright code could be possible.

In December 2013, the European Commission decided to take things a bit more seriously and launched a public consultation on the review of the EU copyright rules. Whereas the consultation addresses major concerns on the effectiveness of the protection and how copyright exceptions are dealt with in Europe, it does not mention the key issue at the heart of all abuses, namely the drafting of the provisions with regards to technological measures - articles 6 and 7. In such circumstances, we might wonder whether the Commission's objective is to actually get input from civil society on the multiple faults of the legislation, or to keep it busy struggling with the challenging eighty questions present in the consultation while the real legislative process is happening.

Paranoid? Perhaps. But the Commission is fuelling my paranoia. On the very day that was supposed to be the deadline for the consultation, February 4th, a Directive on Collective Management of Copyright was adopted by the European Parliament. Fair enough; this was just about one particular aspect that of course could not wait for the new order. Still, it seems odd that copyright rule-tweaking carries on while full overhaul would be legitimately expected.

Now that the deadline has been extended to March 5th, let's keep an eye on what the European Union is doing in between. We need to keep a focus on the dream of efficient copyright reform for Europe, and raise red flags all the time the broken system is tweaked to make it look functional. The old models will collapse all by themselves; what we need to be building is the legislative environment for the new models of the emerging, meshed society.

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