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Outdated copyright laws must adapt to the new digital age

The ways that we create and consume culture has fundamentally changed with the digital revolution and the rise of the internet, making it increasingly difficult to distinguish between the producers of content on one side and consumers on the other – says Maël Brunet

Yesterday the public consultation opened by the European Commission on the review of the copyright rules closed. This is an important first step in the legislative process that is expected to span the next few years. Now is a good time to look back at how the current system was originally set up and think about whether it is still fit for purpose to achieve its objectives.

The European Union copyright rules are based on a directive from 2001 implementing the World Intellectual Property Organisation Copyright Treaty of 1996. Since that time, technology has profoundly and irrevocably remodelled the way that content is created and consumed, and our legal system is increasingly struggling to achieve its stated objective of enabling creation – and open innovation.

The original rationale for copyright was to encourage creation by granting a temporary monopoly to authors on their work. This guarantees that they can earn a fair living through their exclusive exploitation for a reasonable time, and therefore continue to create. After this period, the work enters into the public domain and can be exploited by anyone.

This system ensures that authors have the incentives and the means to create cultural content, while still allowing society as a whole to benefit. From this rationale, it is key to keep in mind that the economic incentives created through the temporary monopoly are only a means to an end and should not overshadow the ultimate goal – which should be to promote creation and open innovation.

The ways that we create and consume culture has fundamentally changed with the digital revolution and the rise of the internet. In particular, it is increasingly difficult to distinguish between the producers of content on one side and consumers on the other. The portmanteau term ‘prosumers’ is not just another new buzzword. It encapsulates a profound shift in our collective social behaviour. The law has not yet caught up with this revolution.

For instance, linking and browsing should be recognised as fundamental functions of the open internet. Introducing further restrictions – for example, in the form of licences – on a practice that has become essential to the way we communicate and share information online should not be permitted. This was recently recognised in the Svensson case that recently came out of the European Court of Justice and should also be enshrined in the law.

Another issue concerns text and data mining, a growingly popular research method that represent an enormous potential of growth and innovation. Here, the act of copying is made solely for technical purposes, to transform the content into a machine-readable format. There is no fundamental difference in nature between reading a text to extract the relevant information and mining it using analytics software.

The use of analytics should be permitted in all cases, as long as the material is lawfully accessed in the first place. We are already seen some countries taking this route like the United Kingdom implementing the Hargreaves Review of Intellectual Property and Growth. It is time for the EU to regain the initiative and remove artificial barriers imposed on researchers.

Private copying levies are an artificial instrument proving increasingly ineffective and incompatible with the evolution of technology and practices. We should be exploring ways to phase them out, rather than expanding them to new domains – as a recent report from the European Parliament recommends.

Finally, copyright rules should not allow anti-competitive practices consisting in limiting technical interoperability. In its recent Nintendo versus PC Box case, the European Court of Justice ruled that circumventing Digital Rights Management systems for purposes of interoperability might in certain circumstances be lawful. This needs to be consolidated and fleshed out into law, building on the ‘interoperability exception’ contained in the 2009 software directive. Open innovation only works if technology and law go hand in hand. We are counting on the commission to propose an ambitious reform.

Maël Brunet is director of European policy and government relations at the OpenForum Europe think-tank

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