We’ve got a leak of the European Commission's copyright plan

The European Commission has pedalled back from making radical changes to Europe’s copyright regulations, according to a leaked version of its draft Copyright Framework seen by The Register. It’s a draft that isn’t due until 9 December.

The Commission rules out creating a new copyright title - “one title to rule them all” - which was never realistically going to happen anyway - and the contentious word “geoblocking” doesn’t appear once. Instead the Commission recommends making a few tweaks to encourage the “portability” of content across borders.

Much of the rest is cautious, with the Commission vowing to “provide clarity” on several issues, and in one case, “promote a reflection”. It’s a far cry from the early days of the current European Commission, when Vice Commissioner Andrus Ansip entered office vowing to end the ability of producers to enforce price discrimination across national markets using “geoblocking”. Ansip had been unable to watch Estonian TV in Brussels, and even singled out the BBC for failing to provide continental Europe with the full iPlayer catalogue - even though they don’t pay the UK Licence Fee.

By June Ansip was looking to save face; the EU’s own gigantic survey of Europeans showed only 8 per cent had tried to access cross border content, and half of those had succeeded, and had no complaints. By September, even Ansip’s allies in tech, telcomms and “civil society” had deserted him.

The draft Framework reflects further retreat: it’s now more about carrots than sticks.
“The financing of new productions in the audiovisual sector relies largely on territorial licensing combined with territorial exclusivity granted to individual distributors or service providers. This is considered necessary by the audiovisual industry preserve sustainable financing, but can prevent service providers and distributors from providing ‘portability’ of services beyond one Member State or from responding to requests from other Member States.”

So it will “promote” a new pan-European search engine for finding legal content: a “European aggregator of online search … destined to end users (online indexation of available legal offers) and of national search tools as well as promote more efficient funding, for, and use of, subtitling and dubbing supported by public funds.

The Commission suggests “supporting rights holders and distributors to reach agreement on licenses” using mediation or dispute resolution, and wants to promote out-of-print works.

It also vows to “intensify its dialog with the audiovisual industry”, which by all accounts has been pretty intense already this year, “to promote legal offers and the discoverability and fundability of films (in its new partnership with national film funds) to find ways for a more sustained exploitation of existing European films”. Better databases and identifiers would also help, the Commission helps.

The Commission gently promises to reassess copyright exceptions so they don’t hamper “online courses and cross border learning”, and easing text and data mining - but these are aspirations, rather than clear statements of intent. It isn’t clear (because the Commission doesn’t say) whether commercial data mining without permission should become the norm, which is something Google wants. It hopes to table legislation on data mining by “spring 2016” limited to “public interest research organisations” for “content they have lawful access to”. Begging the question - why can’t they take out a licence?

The Commission does stress that any changes to copyright must pass the “three step test” enshrined in the Berne Treaty in 1886, and adopted as a kind of “Hippocratic Oath” of copyright reform: thou shalt do no harm.

There’s a vague nod to revisit the issues of "making available", and "communication to the public", areas the activist European Court has been keen to decide, as it considers Brussels too slow.

Several significant areas are not covered, because they’ve been spun out as exercises in their own right. Cross border copyright enforcement is the subject of a separate assessment due in autumn 2016, while a related platforms consultation - dealing with Silicon Valley’s giant tech plantations - is also underway. This will examine whether the major platforms can distort the market by extracting an unfair advantage from current loopholes in the law.

Rightsholders large and small have a fruitless and costly job in making sure a “takedown” of unlicensed material results in a “stay down”, as often the material is reposted again, and the platform turns off its (otherwise effective) filtering software.

It makes a nod to the creators themselves: “fair remuneration of authors and performs… can be particularly affected by differences in bargaining power when licensing or transferring their rights to publishers and producers”.

As for a “one title to rule them all”, promised in the Lisbon Treaty and reiterated in the 2011 "Reflection Document" - this just ain’t happening, the Commission says. “Full harmonisation of copyright in the EU, in the form of a single copyright code and a single copyright title, would require substantial changes in the way our rules work today. Areas that have so far been left to the discretion of national legislators would have to be harmonised.”

It would also need a single copyright “court” the Commission says, gloomily. And take forever to implement...

Europe has had many copyright consultations and reviews, with Michel Barnier's 2013 to 2014 the most recent. It was leaked as a draft but never published, largely because Google Neelie Kroes didn't like it.