The European Commission has appointed a former lobbyist from the record industry organisation IFPI to be in charge of copyright reform in Europe. In doing so, the Commissioner responsible, Mr. Michel Barnier, has effectively doomed his flagship project ”The Digital Single Market” to failure. But this is symptomatic of how the EU works in practice.
The Digital Single Market is one of the Commission’s flagship projects for this term, and rightly so. The idea is to create a single market for digital products sold over the net, such as music or films. Today there are many legal obstacles that prevent this from being a reality.
The European Union is the world’s largest economy, if it is seen as one entity. The 27 member states together have 21% of the world’s GDP, whereas the US only has 20%.
If the EU was truly a single market for digital products, this would be a great advantage for European innovators and entrepreneurs. A big home market is always an advantage for a company that wants to launch a new service. This is an area where the EU could be number one in the world.
But in reality, we aren’t. The US may be (slightly) smaller than we are, but it is a lot more integrated. A US entrepreneur who wants to sell digital content on the US market only needs one licence, or one set of licences, to cover the entire market. A European entrepreneur who wants to do the same in Europe is forced to get separate licences for each of the member states, in order to be able to sell to the entire European market.
In the US, there are several competing services for people who want to buy music online. In Europe, there are none that cover the entire market and treat it as one.
A 2009 report by the Commission takes Apple’s iTunes service as an example, and writes:
Apple observes that its iTunes store is not available in every EU country because many countries do not offer a large enough marketplace to justify the expense and effort required to sell in that country. Since it cannot obtain the rights in the sound recordings and the global repertoire of musical works on a pan-EU basis, iTunes has to examine the situation in each country individually to determine whether the benefits are likely to outweigh the costs of distributing content into that country.
The much-hyped Spotify service is seen by many as the answer to the phonographic industry’s problems, and a great European innovation. But in reality, Spotify is only available in 7 of the 27 member states.
This is not because Spotify would not want to be pan-European, or because the people who work at Spotify are lazy. They are not. In fact, they have had to work very hard to clear the rights to sell music in the 7 countries where they are allowed to do so.
In each country, they have had to negotiate with about half a dozen different collecting societies and rights holders’ organisations to clear the rights to the music they want to sell. Each single piece of music is covered by many different overlapping rights, so unless they can get an agreement with all of the organisations holding different pieces of the rights jigsaw puzzle, they are normally barred from entering that market at all.
To get the rights needed for just 7 countries, Spotify has had to spend years of negotiations. Covering all 27 member states will take a very long time, if it ever happens at all. The current copyright legislation of Europe is preventing the Digital Single Market from becoming a reality.
The digitization of books is another area where today’s copyright legislation needs to be updated, if we are to take advantage of the exciting possibilities that the new technology has brought. Both Google books and the EU project Europeana would want to make our common cultural heritage available in digital form.
If we could solve this, it would be a great thing. Books would become more accessible. Libraries, schools, researchers, and disadvantaged populations would gain access to far more books. Digitization would facilitate the conversion of books to Braille and audio formats, increasing access for individuals with disabilities. Authors and publishers would benefit as well, as new audiences would be generated and new sources of income created. Older books — particularly out-of-print books, many of which are falling apart buried in library stacks — would be preserved and given new life.
But to cut a long story short, under today’s European copyright legislation, that just ain’t gonna happen. Clearing the rights for millions of out-of-print books on an individual basis is simply not feasible. New legislation would be needed to untie this Gordian knot.
The previous head of copyright at the Commission did in fact present a proposal on legislative changes to facilitate mass digitization of books in Europe. It would not have solved all problems, but it was an attempt at constructive reform to promote a Digital Agenda for Europe. But before the proposal could even be debated in public, the Commission withdrew it.
With the appointment of a former IFPI lobbyist as the new head of copyright, we can guess why. IFPI does not want comprehensive copyright reform in any way, shape, or form. They are interested in two things only: an extension of the protection times for the rights that record companies have to recorded music, and stricter enforcement. In those two areas, we can expect to see proposals from the Commission in the coming years.
But legislation on orphan works, or a reform of the copyright system to enable the Digital Single Market, are not on the lobbyist’s agenda. They prefer for things to remain as they are, with themselves at the top of the hill. This is their position as ”stakeholders”. And in the EU, at the end of the day, it is the stakeholders that are calling the shots.
You may wonder why Commissioner Michel Barnier, who is officially responsible for the Digital Single Market, would deliberately appoint a head of copyright who will almost certainly not deliver the reforms that would be necessary to make that project a reality.
The answer is that he probably does not even realise this is what he is doing. The culture of doing nothing unless it has the approval of the big business stakeholders is so embedded in the fabric of the Commission, that he is unlikely to even have noticed it.
In the closed rooms at the Commission, the tradition is very firm. You can ignore citizens at will, but when big business talks, big business gets what it asks for. This is called ”stakeholder dialogues”. In the European Union, it is what we have instead of democracy.
The resulting bad legislation and missed opportunities can be seen in a country near you.