While there's no doubt that copyright licensing is a mess that is often holding back key innovations online, it's a bit worrisome to hear about how the EU Commission is exploring the issue. It has set up a "Licenses for Europe" campaign, but designed in a way that locks in a predetermined conclusion
that the only way to deal with locked up content in Europe is to get the big copyright holders to agree to more easily determined licenses. Again, this is not necessarily a bad thing, but it ignores the larger picture: including the fact that most content produced today
is coming from individuals and not as a part of a larger industry.
La Quadrature du Net explains why the whole setup is a problem:
Instead of planning for a broad reform that would break away with full-on repression of cultural practices based on sharing and remixing, the Commission is setting up a parody of a debate. 75% of the participants to the working-group concerning “users” are affiliated with the industry and the themes and objectives are defined so as to ensure that the industry has its way and that nothing will change. Through this initiative, the EU Commission shows its contempt of the many citizens who participated in defeating ACTA and are still mobilized against repressive policies.
La Quadrature du Net is registered to participate in a working-group of the new “Licences for Europe” initiative called “User-Generated Content”. Everything in its name, theme and mission is biased to fit the views of the entertainment industry – which represents more than 3/4 of the participants! – The working group is meant to focus on “User-Generated Content”, as if works created by Internet users were a different category from “real” cultural works; as if today, everyone was not on an equal footing to participate in culture. The Commission's framing of discussion is subservient to major industrial actors who keep attacking their users' cultural practices and ignore the urgent need to reform copyright.
Just starting out from the point of view, that "user generated content" is somehow a different category than "content," itself is problematic, but much more problematic is the fact that there is no interest from this effort in things that would actually help out on a large scale: such as recognizing that copyright doesn't make much sense for many of these works, and that sharing and building on others' works is a part of how culture works (and that "licenses" can often get in the way of such things). In fact, the EU Commission made sure that no discussions of things like fair use were to be discussed, since the point of the discussion was just "licenses."
The working group is supposed to work only on licensing – contracts by the industry in which it controls everything – rather than discuss new exceptions to copyright, which would represent the general interest by allowing not-for-profit sharing and remixing of digital works.
This is really unfortunate. Because when you start from the position of licensing everything, you ignore the fact that not everything needs to be licensed
. And, as a result, you end up with over-licensing, which is a real problem. Apparently, things got even worse once the sessions began. Even though there were rules in place designed to keep the details of the proceedings mostly secret, some indications from inside were that things were not going well, thanks to some tweets from COADEC.
Industry reps seemed to have absolutely no interest in discussing things like fair use or other "exceptions" to copyright. Someone brought up fair use, and apparently the response was that "fair use is from the 20th century"
and then annoyance at the fact that "exceptions" were even being discussed
since "we should just talk about licenses." Moderators obliged by shutting down
any talk of exceptions.
Someone tried to point out that this seemed to be putting the cart before the horse, asking whether or not there has been any evaluation done as to whether or not licensing was really the best solution, and the moderator responded "well we want to deliver something."
We've heard this before, many times. Politicians have no interest in making sure the solution they're pushing for makes sense or works, so long as they're seen as "doing something." We saw that nearly a decade ago when Senator Orrin Hatch tried to push his INDUCE Act, and when quizzed about it, he admitted that it might cause problems, but he had to "do something"
Further making a mockery of the whole thing, someone brought up Creative Commons licensing... and that conversation was also shut down
as a "certain industry" claimed it was "too early" to discuss such things. Apparently, this "certain industry" doesn't realize that Creative Commons is a form of licensing too. Like too many maximalists, they consider Creative Commons not to be a form of licensing, but another form of "copyright exceptions," (which it is not).
All in all, the whole session appears to have made a mockery of any attempt at real, meaningful copyright reform. One more comment from the session sort of highlighted the whole problem. As the moderator and people from "certain industries" shut down all talk of exceptions, and focused solely on how to set up a system with more and more licenses, an attendee asked a simple, pointed question
Attendee asks, who gives a licence for mining the Internet?
And that, right there, encapsulates the entire problem. If you think that we shouldn't be talking about exceptions, and that everything requires licensing, what you're really saying is that search engines are illegal. Searching the internet without "permission" is illegal. And that's the world that the EU Commissions seems to think we should be heading towards.
Yes, locked up content is a problem, and fixing licensing is one part
of the solution, but it cannot
be done absent a more comprehensive look at the issues of the internet and copyright today. Completely ignoring things like fair use or other "exceptions" to copyright (I prefer to think of them as the rights of the public
rather than "exceptions") means you get bad plans with bad results that border on the ridiculous.