Finally! A political science look at the EU copyright reform!

For a while now i have been wondering why there has - seemingly - been very little attention paid by political scientists to the legislative fight over the the EU copyright reform that played out between 2014 and 2019. Many consider the discussions surrounding the adoption of the 2019 Copyright in the Digital Single Market Directive to be one of the most controversial and hard fought policy battles that the EU has witnessed in recent times. There can be little doubt that the copyright reform has been extremely polarising. All of this should make this process worthy of attention from political scientists.

Given this general lack of attention for the issue so far, i was delighted to come across Market, culture, and open-access. European copyright and the renewal of a historical clash of values in the digital age, a book chapter by Céleste Bonnamy which tries to understand that copyright reform discussion through the lens of the values mobilised by the various groups that engaged in the legislative process.

That in itself makes the (relatively short) chapter worth reading, but what makes it even more interesting to me is Bonnamy’s central thesis:

Indeed, copyright as an instrument both of cultural policy and economic regulation constitutes an ideal ground for the culture vs. market clash. The main thesis of this chapter is that the digital age brings in a new set of values, from the involvement of a third sphere of activities – the digital – that complexifies the debate: the open-access set of values. We are now dealing with a tripartite clash.

The other sets of values that Bonnamy identifies are “Market” and “Culture”. Seeing Bonnamy describe the debate about copyright as a tripartite clash is particularly interesting since – from my perspective – one of the most frustrating aspects of being involved in this clash has been the fact that it has generally been described as a binary conflict between “tech” and “culture”, ignoring the fact that there has indeed been a third group of stakeholders: individual and institutional users.

It is rewarding to see Bonnamy clearly identify this this third set of stakeholders and it is even more interesting to see that she conceptualises the underlying set of values as open access:

The market vs. culture debate does embrace a new shape in the digital age when it comes to debating a new legal framework for European copyright. Digital technologies, and more exactly, the Internet, as a borderless and immaterial space, brings in new issues along with a new set of values. Freedom of expression, democracy, freedom of information, are not new as such, but their medium is. They question the role of copyright as a balance between the public good and market logics, and between cultural and economic incentives, and are mobilized by political actors.

That being said, this analysis confirms the strength of economic values in the European arena. Indeed, in the first part, we have seen that the fundamental opposition between market and culture values was eventually overcome by the creative economy framing. And, as such, the EU cultural policy constitutes a typical case where culture is embedded in market values. The development of digital technologies could have challenged this domination of the market set of values over culture. Indeed, in theory, both open-access and culture sets of value condemn the pursuit of profit and commodification of the Internet for the first and the arts for the second. But this potential proximity between culture and open access sets of values on the issue of copyright is ultimately not translated into a policy solution defended by those who otherwise stress culture and open access values. The debate eventually turns into one about more or fewer barriers to entry, where proponents of more barriers refer to market and culture values, while opponents point mostly to open access and market values. In the spirit of Rodrik’s trilemma of the world economy (2008), in our case-study, culture, open-access, and market sets of value seem to be working as a trilemma: two can be combined but never all three together. Culture and open-access sets of values share the promotion of non-profit creations; open-access and market share the promotion of free access; culture and market share the promotion of the remuneration of the cultural value chain (see. Figure 1). And in the EP’s debates on copyright, the market set of value seems to be working as a common denominator, as free competition is compatible with free access and with the remuneration of the whole value chain.

These observations (which feel spot-on to me) point to an important failure on behalf of open access advocates during the copyright debates: Our inability to develop policy positions that could appeal to those actors predominantly by cultural values. There have been a lot of moments where it was noted that there are in fact strong overlaps between the interests of users and creators (and not only because these two categories are increasingly overlapping because as a result of new forms of cultural production enabled by digital technologies) but these never lead to any meaningful re-evaluation of policy positions. Instead of actively resisting the tendency of being subsumed under the more established set of market values, the open access movement seemed to have arranged itself with this reality early on in the process. This was also helped by the fact that a subset of the open access values is fairly strongly held by an influential set of tech companies who acted as eager allies for the open access advocates throughout the copyright reform discussion.

In this context, the section where Bonnamy analyses how both the cultural and open access sets of values were eventually subsumed by questions of economic regulation rooted in the market set of values really stands out to me:

The debate seems to have been dominated by the use of cultural and open-access values. We can find examples of both sets of values on each side of the debate, but the general picture shows the domination of cultural values to support the reform, against open-access values to contest it. Market values appear through the idea of fighting monopolies. They equally irrigate speeches from opponents as well as supporters of the directive. The different sets of values are mobilized to sustain a specific vision of market regulation: should there be more or fewer barriers to entry? In that sense, the 2018 debate is still set in the same framing as the one described by Annabelle Littoz-Monnet regarding the 1990s European debate on copyright (2006). Thus, cultural values are largely used to sustain more regulation, whereas open-access values are used to argue in favour of fewer regulation. Interestingly, free competition values are used to defend both, leading to what we called a discursive commodification. That is: the combination of values historically detached from, if not opposed to, economic concerns (here, culture and open-access) with market values, economic by their very-essence, to justify a policy solution. From that, three remarks can be made.

[…] All in all, we can see here the strength of what Antoine Vauchez called the Econo-polity of the EU that acts as the “original matrix” of the European decision-making process (2015). It is both an institutional – the internal market being the main competence of the EU – and a cognitive structure that forces the agents to adapt to it, visible here through this discursive commodification. This whole debate demonstrates the strength of this “matrix”, as it paradoxically manages to be a medium for sets of values opposed to marketisation that are culture and open-access.

It is this very insight (a market driven cognitive structure that forces us to embed our arguments in market logic) that led us in 2018 to start thinking about alternative frames for discussions about digital policy making in the European Union. This work later resulted in our Vision for a Shared Digital Europe, which as Bonnamy reminds us is still as relevant as it ever was.