The shadows of the European copyright reform

By Innocenzo Genna

(leggi il post sul blog di Innocenzo)

It may become impossible to share memes, parodies, artistic or political videos because the filtering obligation voted today by the European Parliament would require online platforms to make a prior check on all the creations shared by users that may contain protected content. And likewise, it could become impossible to find news on the major search engines, because the latter, in order not to pay a tax on snippets, i.e. the phrases showing the descriptions of the pages that user is looking for, could suspend the service (as it is already happened in Spain and Germany because of similar national laws). Today’s decision of the European Parliament’s Legal Committee is for now only a legislative step, but this scenario could actually materialize if the European Commission’s proposal on copyright reform were to be definitively approved in the coming months by the European legislators, namely the European Parliament in plenary session and the Council of Ministers. In any case, the narrow majority that today approved the text submitted by the rapporteur Voss suggests that the struggle is still long.

But how did we get to this point? There was no doubt that a reform of the copyright discipline, to adapt it to the evolution of the Internet, was needed: one should consider the new models of distribution and usage, the existence of new operators and intermediaries (unknown until a few years ago), as well as the need to protect and promote content effectively in a new technological and market environment. Beside these issues, however, jumped a new idea, that of the c.d. “Value gap“: the traditional content industry (especially commercial TV, audiovisual producers and major publishers) claims that a good part of their value is now “scrapped”, with the advent of the Internet, but above all of the social online platforms (primarily Youtube, but also GitHub, Instagram and eBay) that host the content uploaded by users and earn in various ways, also thanks to online advertising.

The theme is important because safeguarding a quality industry for content and journalism is fundamental in European society. However, the proposal that is being discussed in Brussels seems to cause so much collateral damage that it should be heavily rethought. It is no coincidence that the great fathers of the Internet (including Vincent Cerf, Tim Berners-Lee and Tim Wu) and the UN expert for freedom of expression, David Kaye, have recently intervened by asking to stop and restart from scratch.

In fact, despite the reform defended by large television companies has been explained to European politicians as a crusade against Google & Co, in the end mostly users, SMEs and start-up will be affected: for them the would not be anymore a free space to exchange ideas, to experiment creativity and new business models. The obligation for preventive filtering could have very serious restrictive effects, including consolidating the market around the large existing players (mostly American) that have the resources to get by, but leaving out the smallest (especially European). And one could not be sure that the European content industry would really gain: and indeed many European publishers, especially the smaller ones and who operate mainly online, have firmly opposed the reform.

The ongoing debate is showing more and more strengths and weaknesses, but above all contradictions, of the European content industry: on the one hand, this sector appears very strong in dictating its agenda to national and European legislators, because few MEPs, ministers or commissioners feel able to oppose against organizations that manage to appear as the only representatives of culture and creativity (while reality is a bit more complex); on the other hand, the same sector appears subordinate, divided and fragmented with respect to the American giants, be they Internet or producers of contents, and appears condemned to an ineluctable economic and cultural dwarfism with respect to the great global trends.

These contradictions emerged in the other fiery debate dedicated to copyright, the one on geo-blocking. Here the European content industry has won, succeeding in defending a legal framework that basically allows geo-blocking of online content, so that an Italian user can be prevented from enjoying online content delivered virtually in another country. A situation that facilitate proliferation of piracy and alternative technological solutions. This system is defended by the European industry with the argument that such territorial restrictions would be necessary to finance the production of films, as producers and distributors normally agree with exclusive territorial licenses. The market actually works like this, and European lawmakers have confirmed the status quo fearing that otherwise they would have endangered European content producers. But then, no one has realized that the right to geo-block is in fact exploited by the great American majors, who produce in US and export their cultural model, while in Europe they can obtain very high profits thanks to the power to geo-block the continent and divide it artificially into 28 (early 27) markets, an absurdity that at their home (since they have 50 states) would not be allowed. This system strengthens the cultural and creative leadership of Americans in Europe, while at home we are discussing why it is right to prevent an Estonian user from downloading an unknown film from a Hungarian site. It would be time for Europe to think again in European terms rather than in defense of national interests.

NB: this is not the place to criticize the EU, since this disconcerting picture is created above all by national vetoes and diktats, rather than by the European bureaucracy. On the contrary, where the offices of Brussels can move with greater freedom, there you can see more result: and in fact many eyes are directed towards Commissioner Vestager and its directorate of competition, who have been investigating the pay-TV market for some time. Thanks to their enforcement powers, Brussels officials could soon declare invalid the territorial agreements that gave rise to the practice of geo-blocking . If this were to happen, any new restrictive copyright reform would have to deal with a completely new scenario.