Neelie Kroes, the VP of the European Commission, recently gave a speech about rethinking copyright in Europe, which kicks off with a little joke about the ridiculousness of Happy Birthday still being covered by copyright
Happy birthday to you all at the Institute for Information Law.
I would sing you "Happy Birthday". But technically I think the song is still under copyright — I don't want to have to pay the royalty.
Of course, whether or not Happy Birthday is truly under copyright is at the heart of a big legal fight
, with significant evidence suggesting that the song is clearly in the public domain
However, Kroes is making a larger point about the way we view copyright today, and how that does not fit with how the world works. As such, she suggests rethinking how a copyright system should work:
I start from principles. What should a sound EU copyright system do?
First, it needs to promote creativity and innovation. To encourage and stimulate innovative new works, new opportunities, new channels, new models. To enable the research that leads to new discoveries.
This is a great start, and it highlights a key point of copyright law: it is supposed to encourage those kinds of things. The problem is that very little research has actually been done to determine if it actually does that. Instead, it's often taken on the basis of faith that it must
do that, without considering whether it really does, or if there are other limiting downsides to how it's currently done. Some people claim that I am somehow "against" copyright. Nothing could be further from the truth. I am happy to support a copyright system that has been shown to actually promote creativity and innovation. I've just seen very little evidence to suggest our current system really does that.
Unfortunately, Kroes' next point seems a bit off
to me, though I understand why she's making it:
Second, it must remunerate and reward creators. That's not just about fairness. We expect creators to invest their time and talent. Of course reward, recognition, remuneration are essential: without them, the creative tap would fast stop flowing. I have always believed that.
But the current copyright system does not do it well. Not nearly well enough. Many creators scrimp by on a pittance, unable to find their full audience, unable to share or sell their works as widely or creatively as they want. Limitations and obstructions do nothing for creativity.
A few points on this. First, it seems to come from the incorrect assumption that copyright is a sort of "welfare" system for artists. That's not its purpose, nor how it was designed. Copyright
itself has never "remunerated or rewarded creators." You can create all you want, and if no one likes it, all the copyrights in the world won't get you paid. It's the market
that decides if you'll be rewarded for your creativity, and sometimes the market is cruel. It's possible that copyright can, in some cases, help create such a market, but to argue that copyright's job, alone, is to help get artists paid is misleading, as it leaves out the basic fact that that's never been the job of copyright. It may be an offshoot of the first point -- creating the incentives for creativity and innovation -- but to elevate the "help people get paid" point, dangerously positions copyright as more of a welfare system for artists, rather than as a tool for incentives in the market.
At the same time, the argument that "the creative tap would fast stop flowing" also does not seem supported by the data. At a time when artists keep complaining that it's harder and harder to get paid, we've seen an astounding explosion in new content being created. Part of the issue is, in fact, that the money being spent today is spread much more widely -- thus you have a lot of artists making that said "pittance," but it does not appear to have resulted in any decrease in creativity.
That said, I'm all for figuring out more ways for there to be more creativity, and if we can figure out ways to get more artists paid, that's a great idea. It's why I'm excited about new innovative services that helps drive that process forward. Platforms like Kickstarter, Patreon, YouTube, Bandcamp and more have created entirely new ways for artists to make money from their artwork. But, there's something important to note in all of that: almost none of those really are reliant on "copyright," and pretty much all of them would function in nearly the identical fashion without copyright.
Again, this is not to say that copyright is not important. It's to point out that it's faulty and dangerous to assume that copyright alone is the tool by which to get artists paid. It leads to poor policy choices that often ignore more interesting (and potentially lucrative) methods being developed in the market.
Third – it should enable a digital single market. Removing the barriers that get between artists and their audience, that prevent innovation, that shatter economies of scale. The EU's leaders are signed up to a full, vibrant digital single market. So is President-designate Juncker. Now they need to act on their ambitions – copyright is a major, essential part.
I'll leave this aside for the moment because it's a messy and complex issue in Europe that isn't quite as simple as some would like it to be. I agree that taking down barriers would help, but there is a lot of nuance at play in this particular issue.
And last: perhaps most importantly, the legal framework needs to take account of the needs of society. Users' interest and expectations matter alongside creators' rights. Rules cannot be impractical, uncertain, or unreasonable for ordinary users.
Indeed, this is the most important, but I think it also goes hand in hand with the first item on the list. If you take into account the needs of society, and make sure that copyright really does focus on incentives for creativity and innovation, then everything else in the system works out nicely.
But still, Kroes is absolutely right to note that today's copyright laws don't function well under these current principles, and because of that copyright itself is at risk of becoming irrelevant:
Every day citizens here in the Netherlands and across the EU break the law just to do something commonplace. And who can blame them when those laws are so ill-adapted.
Every day, startups, small businesses, scientists abandon innovative ideas because the legal fees are too great.
Every day, people bypass the copyright system using alternatives like open source: something which can lead to huge creativity, innovation, and richness.
Copyright risks becoming an irrelevance.
And Kroes further points out how it's not just that copyright is out of touch, but it may actively be harming the principles she states above:
The Internet gives enormous opportunities for artists and consumers. More direct access to a wider audience, and a wider range of content. New ways to share, spread, sell. New ways to reward and recognise. New ways for audiences to appreciate – getting what they want, when they want it. A good copyright system would help us achieve that. Today's does not.
When uncertainty prevents people remixing or creating their own content, how does that boost creativity?
When teachers are afraid to share teaching materials online, how does that help our society?
When a European Video-on-Demand provider tries to expand to new markets, but gives up because clearing copyright is so catastrophically cumbersome: how does that benefit our economy?
When consumers want to buy films or TV shows online but find they are geo-blocked: how does that benefit the fight against piracy? How does it benefit the artists whose works they could be watching?
When lovers of old films have to physically fly to a different country to see them, even if they're no longer in commercial circulation, how does that support European culture?
When museums have to take out insurance specifically against the risk of copyright lawsuits, because it's too complex and costly to figure out – how does that help promote European heritage?
When you can't sing happy birthday, or post a picture of the Atomium, how is that fair or reasonable, how is that something you can explain to ordinary citizens?
When European scientists have to abandon text or data mining because they can't afford the legal fees – how does that help innovation and scientific progress? And by the way that restriction is costing our economy tens of billions of euros.
I see no real winners in any of those cases. Creators lose out; innovators lose out; users lose out; our economy loses out. The system serves no-one. Solve those problems and I see only winners. We just have to jump over our own shadow.
As she then notes, it's basically impossible to explain copyright to the average "man on the street." Many now see copyright as "a tool for obstruction, limitation and control" rather than "openness, innovation and creativity." The speech is well worth reading, and has some very good points. I just fear that the focus on that second point -- of pretending that copyright is a tool for guaranteeing payments in a kind of welfare system, is part of what leads to the current problems of the system, and takes it away from those other key goals of benefiting the public. If the system is designed properly to benefit the public, it should automatically
create incentives that help artists, whose work is in demand, get paid.