Visionary thinking

Today the German Council presidency hosted a conference on “Datenökonomie, KI und geistiges Eigentum”. On the occassion of the event a number of the participating academics have issued a memorandum on the future of the creative ecosystem in Europe (titeled “Copyright Law 2030”) which tries to shift the very practical (cough - DSM directive - cough) discussion of the last few years towards a more fundamental discussion about the future of the EU copyright system. As part of this the authors make a number of important observations:

Relief from false expectations: As a society, we need to develop an understanding of copyright’s core tasks: Copyright law must create the proper incentives and provide access rules that, jointly, promote creativity and protect authenticity and that are sensitive to social communication practices. It is not the purpose of copyright law to protect business models.

Plurality of governance instruments. Large parts of copyright law’s current regulatory content could be left to the market and to technology (governance by technology). However, this would require an appropriate legal framework (governance of technology). Copyright law is an integral part of this framework. Thus, regulators should always inquire whether copyright law is the right means to achieve their desired objective; copyright law’s regulatory deficits shall not be tolerated with reference to other regulatory instruments.

Develop a new architecture. The copyright law of the 21st century must learn from past experience but should not stick to the instruments and solutions applied in the analogue age. Digital, internet-based uses require modified (sector-specific) regulation. One possible solution is a shortened term of protection; any renewal could be subject to fees and registration. This would incentivise right holders to evaluate the subject-matter’s economic potential and would strengthen the public domain. Publicly controlled registers could relieve the system and foster exploitation and accessibility in the interest of both stakeholders and the general public. At the same time, authors’ moral rights should be strengthened in the digital context.

Unfortunately their ideas for how any of this could be achieved (their “Theory of Change”) is rather naïve. Being academics, the authors, in an act of visionary wishfull thinking, propose that policy makers should, for once, listen to the academics.

Visionary thinking. Any modern copyright law must take into account trends and scenarios of the near future. To this end, the European academic community should work together and submit joint proposals – proposals which may put the existing European or international legal framework up for discussion. The institutions of the European Union and its Member States should promote this research programme and pay attention to its results.

This is of course not how things work in the real world and so it is high time we develop a more realistic theory of change.