EU copyright consultation: Rights Holders are from Mars, Users are from Venus

Last week the European Commission published its ‘Report on the responses to the Public Consultation on the Review of the EU Copyright Rules‘. This report summarizes the more than 11.000 responses that the Commission had received in reaction to the copyright consultation held between December 2013 and March of this year. While it is clear that a 100-page document cannot do justice to all of the responses (our own response measured in at 24 pages), the report is informative in a number of ways.

Maybe the most striking (although unsurprising) insight that can be gained from reading the report is that stakeholders are completely divided in their perception of how well EU copyright law meets the requirements of the digital environment: Citizens and institutional users think this is not the case while authors and other rightholders are convinced it does. Over at governance across borders Leonhard Dobusch has done an excellent job at illustrating this fact:

From the perspective of anyone interested in making copyright work this is a massive problem. It is widely accepted that copyright should strike a balance between the interests of creators (to control their creations and to be able to make a living of their creativity) and the interests of society (access to information and culture, freedom of expression). Seen in this light the fact that one side is (more or less) happy with the current balance and the other one is not (at all) happy is highly problematic. Copyright – like any other system of norms – can only function when it is perceived as justified and fair by all stakeholders. The above illustration shows that acceptance of the system in its current form is extremely one-sided.

Under normal circumstances such a pattern in a consultation related to an important policy field as copyright would be a clear signal for lawmakers that the system needs to be reformed.

Quite obviously that is not the case here: The Commision’s leaked draft of the EU white paper on copyright policy from June clearly sided with the position taken by rights holders and their representatives – so much that it had to be sent back for a rework after objections from two Commissioners. As I argued before, a big reason for this state of affairs seems to be that the Commision has not managed to accept that citizens and public institutions are genuine stakeholders in this discussions about copyright policy.

This is illustrated by the Commission’s own report on the responses to the consultation. The above chart shows that users are underrepresented in the Commission’s summary of the responses received. The most interesting fact is not the relative under-representation with regard to the amount of responses, but the absolute word counts of the different stakeholder. The Commission gives more voice to the positions of rights holders than that of other stakeholders¹.

Two decades after the digital revolution, citizens and public institutions should be considered direct stakeholders in discussions about copyright policy. However, the policy makers themselves are still grappling with this fact. The massive response from individual users (and to a lesser extent public institutions) shows us that for them the current copyright rules do not work any longer. Policy makers interested in preserving the legitimacy of the system would be well advised to confront this reality and start working on a meaningful overhaul of the system that reinstates a balance between the interests of all stakeholders involved.