New EU Commissioner promises copyright reform, but can he deliver?

The new Commissioner for the Digital Agenda, Günther Oettinger has promised an overhaul of the 2001 Copyright Directive. For the first time the copyright dossier has been handed to the Directorate General for the Digital Economy with the new President of the Commission, Jean-Claude Juncker, listing copyright, along with telecom reform and data protection, as a major task to be dealt with successfully for creating a digital single market. Despite – or because of – the bold announcements copyright experts question the prospect of full-fledged copyright reform by a Commissioner who will be torn between the opposing camps in the fight for intellectual property in the digital world. The proposals tabled by the outgoing Commission and the work currently discussed at the Council seem to focus once more on enforcement instead.

“We have copyright legislation, but it is not up to date any more, it is not adapted to the digital world,” Oettinger said to members of parliament during his confirmation hearing in Brussels. “We have to update copyright,” said the German, nominated by Juncker as the successor of Neelie Kroes.

Can a newcomer in the digital dossier achieve the elusive copyright reform?

Oettinger was applauded by friends from his party group in parliament for knitting the European energy market together more tightly during his tenure as Energy Commissioner in José Manuel Barroso’s Commission. Some members expressed their hope he could go in the same direction in the digital goods and services market.

But being a newcomer to the dossier and refraining from giving detailed answers on how he wants to achieve what could not be achieved by his predecessors over the years, many are doubtful if the European bureaucrat can deliver. Monica Horten, an expert in European copyright and telecom policy working as a Visiting Fellow at the London School of Economics & Political Science, thinks there is a structural problem with Oettinger’s dossier. “Copyright and telecom are completely orthogonal. Copyright is based on exclusivity, while telecom lives on openness and the network effects,” Horten said to the Internet Policy Review.

Oettinger would have to deal with two very different, competing industrial sectors. “I am afraid, he will be torn two different ways and perhaps never be able to resolve problems.” In her opinion the concentration of issues is a problem. Juncker’s and now Oettinger’s announcement for copyright reform could prove too ambitious, especially given the timeframes mentioned. Juncker’s idea of preparing a draft reform in six months has been extended by Oettinger to one year, and subsequently to 2016 during the debate with the Members of the European Parliament. Even by this last date, doubts remain, especially since Oettinger committed himself to allow for a bottom-up consultative process for the much called for, but controversial reform.

Enforcement, once more on top of the agenda

Oettinger also expressed his clear support for strict copyright protection. “I stand for strong copyright protection for authors and people responsible for the creation of literature, music. To allow them to stay in business means we have to protect their rights in distribution. Only by protecting them will we have creators tomorrow.”

The new Commissioner also expressed that he was taking off where his colleagues had left. These were, Horten noted, more focussed on enforcement once more. One left-over, for example, is a draft Notice-and-Take-Down Directive which had been revived by the Commission after a long sleep earlier this year. While withdrawn over the election period, it might very well be one of the topics on the agenda. While in the draft there were some ideas about how to standardise procedures, certainly there also is a call out from some players in the industry to reconsider limited liabilities for intermediaries all together. “Is there still a need for these limits in liability, given about what a company like Google can now do with regard to copyright protection and anti-piracy technology,” Lutz Reutecke, Vice President Regulatory Affairs and Public Policy at Sky Germany, asked in a debate organised on 22 October by the Institute of European Media Law at Medientage München (Media Days Munich).

The non-governmental organisation European Digital Rights also pointed to a discussion about a review of the IP Enforcement Directive (IPRED) in the Council of Ministers recently. The highly controversial IPRED originally had been drafted with the intent to criminalise users for copyright infringements, but the European Parliament managed to tone down the text in that regard. An extension of liability for new providers was on the wishlist of the Italian presidency for the review.

The Council also earlier this year agreed on better protection of trade secrets for businesses. The Council already in June made it much easier to sue infringers when it removed, beside other draft clauses in the draft directive, the condition that a trade secret holder must demonstrate that an alleged infringer had acted ‘intentionally’ or with ‘gross negligence’.

Despite Oettinger speaking of ‘balance’, additional exclusive rights and enforcement seem to be ahead of the copyright reform of the European information society.