Caution: Change ahead * Updating copyright law to keep pace with technology

• ECIS
• April 28, 2014

Introduction

The European Commission is pondering ways to update copyright law so it keeps pace with technology, but this will be a delicate task and the first order of business must be to preserve what works well. Today the law successfully balances interests of copyright holders with those of innovators. For example, software makers may do what is necessary to inter-operate with existing programs, clearing the way for new programs that build on existing ones.

Technology and the internet have changed the way we work, watch movies, buy shoes and pay our bills. As we update copyright to take all this into account, the European Committee for Interoperable Systems believes we must preserve the existing principle of interoperability. At the same time we should protect such fundamental building blocks of the Internet as hyperlinking and text and data mining.

Some individual Member States now impose levies on blank tapes and storage media. We must take care to avoid similar levies on cloud services, which would put a drag on the expansion of such services across the EU and place them at a competitive disadvantage compared to the United States and others.

Inter-operability

Companies in the EU now reverse engineer copyrighted programs so their innovative software will work smoothly with existing proprietary software. This approach should be preserved in any new EU copyright provisions so innovation can continue for everything from word processors to music players.

Analytics

The internet makes it possible to analyse large amounts of text and data in ways never before possible, stoking a growing market for new facts and hypotheses which teach us more about the world and ourselves. Copyright was meant to encourage new creative works by assuring the creators they can be remunerated. A system that was supposed to assure the flow of plays, movies and novels was never meant to discourage analysis.

Nonetheless, some argue text and data analytics fall under copyright protection. However, Professor Ian Hargreaves has explained that any such protection is an unintended side effect of the law, not its intent. (His views are detailed in section 5.24 on page 47 of an independent report commissioned by British Prime Minister David Cameron.)

Text and data mining should fall outside the scope of copyright protection, or the rich benefits of text and data mining could be at risk

Hyperlinks

As anyone using the Web knows, hyperlinks are an indispensible navigation tool. We link to source material that substantiates or enhances books, blogs and magazines. Proposals to require permission from the copyright holder before a URL can be cited threaten one of the biggest advantages of the Web – an automated and vastly improved version of footnotes.

Such a novel burden on links – which has never been part of the Web – would likely be honoured in the breech and undermine the legitimacy of copyright legislation itself. And to the extent it did succeed it would interfere with the free availability of Web resources. Indeed, the Court of Justice of the European Union ruled in January, 2014, in case C-466/12 Svensson, that hyperlinking to websites freely accessible to all users is no copyright infringement, and requires no prior authorisation.

Levies

Finally, some have proposed new fees on services in the cloud to compensate creators for the copying of their works, like those which some Member States now impose on blank discs and storage media. Some EU countries have such surcharges, each at its own rate, with the rationale that people may use these blank materials to reproduce copyrighted materials. The fees flow to “collecting societies”, and are supposed to be passed along to compensate artists, composers and authors for the copying of their works.

Several Member States have extended these levies to mobile phones, because some portion of mobile phone memory might be used to reproduce copyrighted works. That is like using a shotgun to kill a flea: a wildly ineffective measure that causes a lot of damage.

European courts have found storage media manufacturers are sometimes forced to pay levies in multiple countries in violation of EU law, even though such storage media are mostly used for things other than reproducing copyrighted materials.

Imposing additional levies on cloud services, including services which are free today and meant to be so, would put a drag on the European economy. It would put Europe at a disadvantage compared to the United States (which has no similar impediments), further fragment the single market, and still fail to accomplish its state goal of protecting creators.

Conclusion

There is real merit in taking a careful look at copyright regimes as the technology for copying material changes. But at the same time, it is important to make sure copyright is a method for encouraging innovation, and is not used to squelch it. Policy makers must think carefully as they consider changes to European copyright law.

For ECIS’ response to the European Commission’s public consultation on the review of the EU copyright rules, please click here.