Open source Europe? The EU copyright report

I am delighted that the European Union recognises the need to update its copyright legislation. I am just not sure whether it recognises the real problems out here.

Julia Reda is doing an excellent job of trying to blaze the trail, but so far the proposals in the EU Copyright Evaluation Report (explained and available for viewing here) go only a little way to addressing the everyday issues.

The ‘core finding’ is that “the current copyright regime hinders the exchange of knowledge and culture across borders.” This is specifically aimed at the facilitation to such exchange provided by the Internet.

I suggest that a much deeper core finding might be that current law

  • is too dedicated to protecting commercial copyright owners rather than creative artists,
  • does not sufficiently consider non-commercial interests of the public, and
  • is too vague and ill-defined so that it brings greatest benefit to the legal industry.

The Artist’s Interests

Julia Reda’s explanation recognises my first issue in Points 3 and 8, that the current law acts mainly to protect companies which acquire copyright, rather than creatives who actually create the works that the companies profit from. Unfortunately neither the explanation given on Reda’s webpage nor in the draft report actually detail how this will be addressed.

Good intentions are great, but good robust law is required.

Non-commercial Interests

Copyright exists to ensure that those who create should obtain fair reward for their works. It does not exist to prevent those not engaged in commercial activity from being able to show those works to others, in a way which does not prejudice any commercial return from them. I have raised some of the practical issues here.

The ‘future-proof open norm’ given at point 13, the UN 3-step test, is not designed for you and me, but for lawyers and courts. I applaud the principle that a limited range of ‘fair use’ is too restrictive now and for the future, but what is proposed does not answer questions, it only poses more.

Copyright needs to be rethought so that instead of permitting specific and limited categories of non-commercial use, it concerns itself primarily with regulating commercial use, allowing all reasonable non-commercial use unless that would prejudice the copyright holder’s commercial interests.

If, as Julia Reda proposes, the term of copyright is reduced to life plus 50 years (which itself is much longer than the life plus 30 years quoted on her website), this still means that the life work of every artist who died after 1965 remains protected by copyright, even though many of those works were created before the Second World War. Not only that, but with continuing vagueness over acceptable use, non-commercial websites are still probably unable to show images of the works of Picasso until 2023, or Salvador Dalí until 2039.

Point 6, entitled ‘Safeguard the Public Domain’, could be a game-changer for many. If it is actually implemented in full, then you or I would be able to make and sell our own prints of Vincent Van Gogh’s Sunflowers in the National Gallery, for example, using their high-resolution digital image. Although I am very keen to open non-commercial access to such images, and I think it a disgrace that public collections should be licensed in this way for non-commercial use, such a free-for-all could have major effects on gallery incomes, for example.

Improving Definition

There are some areas which are singled out for a clearer approach, such as ‘transformative creation’ (Point 12), ‘audio-visual quotation’ (Point 14), linking (Point 15), and public space (Point 16). But more careful examination of Point 12 in particular, and Point 17 (caricature and parody), quickly take us into complex legislation once again, whose principal beneficiary will be the legal industry, not the artist or public.

I do not know how much Point 17 has been influenced by Luc Tuymans’ case, which I discussed here, given that his defence attempted unsuccessfully to invoke parody as justification for his actions.

However if a defence of parody, caricature or pastiche is always going to be admissible regardless of the purpose of a derivative work, certain sectors notably photography will suffer badly. I am not sure whether professional photographers will see this as fair, particularly for derivatives which are from the outset commercial in nature.

Is it really morally right that a professional photographer’s work could be ‘parodied’ without any licensing arrangement in another artist’s commercial product?

There are some surprises which could have interesting effects. One of my lasting bugbears was the stringent control exercised over data acquired by UK government – the Ordnance Survey in particular, which for many years charged high fees for anyone wishing to obtain access to its digital products. Thankfully we are now able to obtain the great majority of the Survey’s wonderful products under their OpenData service here. I suspect that there will be many government sectors, such as the UK Hydrographic Office with its vast collection of marine chart data, which will find themselves having to open up similarly, if these changes go ahead.

Effects on Digital Publishing

Points 23 and 24 will have major impact on anyone involved in the digital publishing industry. Inevitably the devil will be in the detail, and until that is known I will not attempt any further comment. It will be interesting to see whether it will do anything to reverse the catastrophic effect of the VAT MOSS mess.

We will all need to keep a careful watch on how these proposals progress. Already there are proposals to ban the geographic limitation of electronic access (geoblocking) which could so easily go pear-shaped…