Copyright Reform: A pyrrhic victory for old media

An edited version of this article first appeared in Village magazine, October 2016 edition

Outline proposals for a modernised Irish copyright regime announced by enterprise minister Mary Mitchell-O’Connor at the beginning of August are now dead in the water, following the publication of draft directives by the European Commission in mid-September.

The European plans, championed by digital economy commissioner Günther Oettinger, lean heavily towards protectionism for traditional media, in contrast to the general scheme outlined by Mitchell-O’Connor, which drew from the “Modernising Copyright” report prepared by the Committee for Copyright Reform (CRC) in 2013, introducing protections for online “innovation”.

Dr Eoin O'Dell, Trinity College associate professor of law. Image from Creative Commons Ireland/Flickr
Dr Eoin O’Dell, Trinity College associate professor of law. Image from Creative Commons Ireland/Flickr


The CRC, which began it’s work in 2011, was headed by Trinity College associate professor of law Dr Eoin O’Dell. While some elements of the CRC’s report – for example, proposals for a Copyright Council which would have a role in resolving copyright disputes, among other things – may survive, the “tech-friendly” thrust of the report stands in contradiction to the approach from Brussels.

O’Dell agreed that the Commission draft took an approach to copyright diametrically opposite that of the CRC. Which both reports agreed on some aspects of copyright and reform, such as implementation of the Marrakesh Treaty for access by the blind to published works and relating to libraries entitlement to digitise works in their collections for conservation purposes– the “boring but necessary” reforms – Oettinger and the Commission had “capitulated to the content providers when it comes to a whole range of additional extra rights, in particular the ‘google tax’– a proposal to make Google – and other search engines – pay for extracts from newsmedia websites quoted on its search pages.

While “Modernising Copyright” outlined specific proposals to allow for quoting news reports online (it would not be an infringement to quote up to either 160 characters or 2.5% of the work, subject to a cap of 40 words), the draft directive effectively outlaws any quoting.

“This new right is an additional right that just applies for news, so its not a copyright, it doesn’t have to meet the copyright standards and it applies whether or not a copyright exception applies,” says Dr O’Dell. “It is effectively acknowledging that copyright ends, and it is adding to it. It is the exact opposite in respect of what we had suggested.

“Effectively what they are doing is they are seeing copyright and related rights as about business models, not about rewarding creative content but rewarding particular kinds of business models, which you can them dress up as saying it is rewarding creativity and content, but there are a lot of other ways to have creativity and content beyond these particular business models. And the Commission has accepted the argument that these business models need special protection.

“It is now adopted by the Commission, so this is the equivalent in Irish and UK terms to a first reading. They have effectively published a bill, the civil service, which is basically the Commission, have agreed this is the bill, the Commissioner – the minister – has agreed this bill, it has now been published and has to go through the legislative process, which involves parliament and the council.

While the draft directive still faces legislative hurdles before the Council and European Parliament, Dr O’Dell feels it is likely to survive the process largely unscathed.

“As part of the ongoing process that has led to the directive that has been ongoing since 2012, the European Parliament adopted a report from German Green/Pirate Party MEP Julia Reda which was far more attuned to the needs of users in particular, and the 21st century in general, and so the parliament made clear what it wanted to see in the package.

“Pretty much none of the parliamentary priorities were reflected in the Commission proposals. So the parliament is unlikely to revisit it, because they have their own already-expressed alternative view, but in terms of the power dynamics in Europe the Commission is much more powerful than the parliament, so the Commission is likely to get its way.

“The way the parliament might have had its way might have been if its report of 18 months ago had been incorporated into these proposals, and effectively it hasn’t. There are no votes in copyright, and I can’t see the parliament blocking it, and that would be its only option.

When the Stop Online Piracy Act (SOPA) was going through Congress, the Stop SOPA campaign appeared almost out of nowhere to kill it (albeit with assistance from technology companies like Google), but Dr O’Dell does not consider it likely that history will repeat itself.

“SOPA was a big deal in Europe too and there were protests, it was the biggest protest in a lot of eastern European countries. There were more people protesting SOPA than against the Iraq war that year in Poland. But I can’t see how the ‘google tax’ is going to get people on the streets in the same way. ‘The web is going to go dark’, that was the rallying cry, I don’t see what the rallying cry is here. So from my political perspective I think that is unfortunate and sad, but from the perspective of political realities I would be very surprised if the parliament were to block this. Its opportunity was when it fed into the process 18 months ago, and it has been comprehensively ignored, and the Commission couldn’t have done that if it didn’t think it could get away with it.

So what next after copyright reform? Similar laws passed by national parliaments saw different responses, with Google shutting down news search in Spain, while in Germany, published granted Google a free licence to quote. Dr O’Dell compares the current stand-off to the Cuban Missile Crisis.

“You know how the Cuban missile crisis was resolved? The Russians pulled out of Cuba, and six weeks later the Americans made a significant withdrawal out of Turkey, which wasn’t in any way related whatsoever. [In Germany], the newspapers blinked and said ‘here’s a free licence, no charge’, and six weeks later Google made a significant donation to a newspaper foundation.

“Officially it was just a gratuitous licence, in fact there were obvious negotiations behind the scene, and that obvious connection, but no official obvious connection. It was like JFK’s withdrawal from Turkey.

“In Spain, Google shut down news search, in Germany they did a deal, in terms of realpolitik a deal will be done, it will not be the sort of cash cow that Conor Brady advocated at the Press Council launch in 2012. It has not proven to be a cash cow in Germany. It’s as much a signal as anything else, but it’s there now and it can be used.

“Whether there is a gratuitous licence will be a matter of realpolitik. I suspect that accommodations will be made, because Google and Facebook will lobby, and then do what they have to do in the next iteration, just like every major corporation does.

“I’m sure they have a Plan B already. I don’t know what Plan B is like, but I’m sure they have one. It could take up to two years for this to work its way through the European process – I doubt it will take that long, but it could take up to two years to be implemented, so it could be somewhere between three and four years before we see it on the statute books, and that’s plenty of time for a deal to be done.

NewsBrands Ireland, the representative body for Irish national newspapers, did not get back with a statement before deadline, but the Europe-wide organisation representing publishers, has welcomed the Commission’s proposals.

“The introduction of a publisher’s right at EU-level is a necessary and historically important step in guaranteeing media pluralism as an essential basis for freedom of opinion and democracy in the digital world,” the publishers’ organizations said in a statement from Brussels. “The Commission’s proposal takes into account the unsatisfactory situation whereby the high-quality content produced by press publishers contributes to the success of many online platforms that do not make a significant contribution to the content, while publishers do not benefit from an appropriate share of the value produced.

“The Commission is correct in its assessment that, without adequate legal protection at EU level, the sustainability of publishing industries may be at stake with the risk of further negative consequences on media pluralism, democratic debate and quality of information.”

A joint statement from the International Federation of Journalists and the European Federation of Journalists also welcomed the proposal as a “great step forward” in protecting journalists’ authors rights, but also drew attention to the weakened position of journalists – in particular freelancers – in dealing with large publishers.

“Journalists have no information on the scale of additional use of their works and it prevents them from assessing if they are fairly paid,” said Philippe Leruth, IFJ president. “We have heard too many reports from journalists and photographers being forced to sign away all their rights. We hope that this new EU proposal will lead the way to the adoption of additional global instruments improving authors’ contractual relationships and proper remuneration for the use of their works.”

“Collective bargaining is essential to securing better working conditions for our colleagues and journalists unions are ready to play an important role in setting transparency obligations,” said EFJ president Mogens Blicher. “We will continue to push for more fairness in contractual negotiations at EU level. The proposed directive represents a great step forward, installing more justice in contractual relationships.”

On the technology side, google VP of global policy Caroline Atkinson blogged to say the Commission directive failed to strike a balance between rightsholders and “creativity and innovation of the web”, and could “effectively turn the internet into a place where everything uploaded to the web must be cleared by lawyers before it can find an audience.”