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California über alles? Is MEP Reda flushing Euro copyright tradition down the pan?

Barriers, rights and a bit of a squint

By Andrew Orlowski, 19 Jun 2015

Interview + update The European Parliament this week made one of its strangest ever decisions, endorsing the replacement of the European cultural tradition with American ideas.

Author and academic Robert Levine thinks Pirate MEP Julia Reda’s copyright reform* proposals are the policy equivalent of photo-bombing, and MEPs haven’t really twigged what they were voting for.

Parliament asked Reda, now Europe’s sole remaining Pirate MEP, to produce a report on behalf of the legal “wise owls” committee, JURI, and approved it this week.

On one level, the gesture is fairly meaningless — the EU Parliament can’t initiate laws, and this vote is a non-binding resolution that the European Commission, which actually does write the laws, can ignore. Reda’s draft was also smothered with 550 amendments.

In addition, only a predictable smattering of digital activists and groups who want to use, rather than create, copyright work, eventually endorsed her position. But it’s highly significant at the same time, says Levine, and people haven’t really noticed why.

That’s because in her recommendations, Levine explains, Reda discards the French and German basis of European copyright and replaces it with the Anglo-American concept. For a continent that spends much of its time bemoaning the influence of the USA, this is both ironic and strange.

Levine’s book Free Ride: How Digital Parasites Are Destroying the Culture Business, and How the Culture Business Can Fight Back is an unsparing look at the mistakes of the music industry and the growing power of internet companies such as Google. (“There’s plenty of blame to go round,” he told us in a 2011 interview).

“In the Anglo American world, copyright is a limited economic right. But in France and Germany ... copyright is a fundamental right. The right says that a work is indivisible and inalienable from the author,” he told us.

“Julia Reda’s logic is based on American logic — which is good legal logic, but it’s not from her own culture," he said. While Levine thinks Reda did a reasonable job of making her proposals sound palatable, the “the underlying logic is scarier than the proposals. And that’s troubling".

So we’re all Californians, now? Thanks, EU

To make sensible copyright policy, says Levine, you need to build on both approaches, the Anglo American and European traditions. You can’t ignore one or the other. So what exactly are the difference between the two intellectual standpoints?

The Anglo-American tradition is utilitarian and practical. It focuses on a time-limited property (or property-ish) right. The time-limited monopoly creates an economic incentive, so trade can take place.

The European tradition is much more unequivocal and rights-based, and emerged from the idea that a creative work is an extension of the human individual. For Germans, explains Levine, a work contains the “essence” of an individual. Harm the work, and by extension, you’re harm the person.

So, in the 19th Century the French enshrined these ideas as “moral rights”, or droit d’auteur. And when the EU came along, the French and Germans ensured it was based on their ideas, by making it a fundamental right. Moral rights are non-negotiable and absolute.

It has some interesting consequences. In the Anglo-American copyright system, rights pile up with intermediaries. Whereas in Germany, for example, you can’t assign your copyright to anyone — it always stays with you.

However, Reda’s bias, only looking at it from an American perspective, led her to a very partial view. “She’s not looking at copyright as a right granted to someone, but a barrier, a barrier put in front of other people to stop them doing something. But you need to look at it from both views,” he told us.

“You need to engage with the French and German traditions, and pretending those tradition doesn’t exist is basically anti-intellectual. Saying that all people need to do is make money, and exercise their economic right, doesn’t acknowledge those traditions," Levine said.

Barriers and rights

From this idea of copyright as a barrier or impediment, most of Reda’s more harmful ideas flow. The Pirate MEP prejudged the question in her report, Levine points out.

“You’re determining the outcome by your questions. What do you do with a barrier? Well, obviously, you reduce the barrier, or remove it altogether, and Reda says she’s trying to reduce the barrier without creating negative externalities. But looking at it like a barrier might not be the right way."

“Similarly, if you only look at copyright as a property right, you might be missing the point too.” For example, Levine is troubled by the implication in her draft that only a few people should enjoy copyright protection.

“Reda thinks copyright is a kind of handout, that artists need this extra special ‘thing’ because they’re extra special people, and we need to protect them like extra special flowers. If we’re all creators now, shouldn’t everyone have creator’s right? Copyright is a right for everyone: everyone has a right to protect their work.”

“Many people may never exercise that human right, but there may be a day when they need to. That’s not a justification for removing that human right," Levine said.

Julia Reda

Julia Reda, Europe's only Pirate Party MEP

Social justice warrior

Levine is also troubled that Reda also says rights should be withdrawn as a kind of social justice punishment, harking back to the way laws were devised in medieval times.

"She’s saying that: ‘We don’t like the way people are using rights, so we don’t like the rights, and we’ll get rid of them.’ But people will do that if you give them rights."

"Take free speech," continued Levine. "People will use their right to free speech in ways that are creepy or undesirable. A lot of free speech has led to people being idiots. But we don’t question the underlying logic of the right to free speech — we accept that in general this is a good thing. In copyright industries, a lot of people who own a lot of copyright may not be likable people, but that’s neither here nor there. It just isn’t relevant," said Levine.

People who want copyright reform should look at market power, and do so fairly, he advises. “I find it hard to accept that media companies are out of control but Google doesn’t. Let’s at least be consistent.”

But the main consequence of discarding European philosophical tradition for the US one is the monomaniacal idea that the right isn’t actually a right, but a barrier. This is reflected in the child-friendly iconography that illustrates her proposals. Her draft website contains pictures of barriers, constraints, exclusion and obstruction. Authority is stopping you doing something. Boo to authority!

Here are three examples:

"Reda has obviously gone to great efforts to come up with proposals that — in rhetoric at least — look balanced," said Levine. "But her world view is that copyright is inherently a barrier and a problem, not a right. And I think that’s a fundamental misunderstanding."

“That doesn’t mean a barrier can never be a barrier — by definition, every right is a barrier to someone else. If you walk across my field, my property may be a barrier to you. But that’s not unique to copyright."

“There’s also a great line about how ‘copyright laws are hard to understand’, but that’s the nature of all laws. Have you ever bought a house? Do you know how many contracts there are there? For someone who works in Brussels to complain about complexity is um, interesting."

Change for the better?

“I don’t want to see the internet fundamentally change, or copyright fundamentally change, and society should give individuals strong rights. Both will probably change a little. People who’ve predicted apocalypses have a pretty poor success rate,” he notes.

It begs the question, if Julia Reda’s proposal exclusively reflects the American philosophy of copyright, did an American really write it?

The most effective way of persuading individuals to surrender a powerful human right is to get them to do so willingly, with a smile. And Silicon Valley’s internet industry would love it if people do just that, removing individual rights of ownership and permission over their own digital stuff, so they the multinationals can even make more money.

One European academic we talked to, who declined to be named, notes that Reda includes a passage could have been written by Google” - the demand to block the ancillary right:

“Some of her wording is straight from Google,” he noted. “She has spoken about the ancillary right for snippets of news. It was introduced in Germany, and Google hates it. It fought it hard and lost.”

What's the chance of Reda becoming a sock puppet?

More likely than Reda being a mere sock puppet is that digital utopians in Europe truly believe this stuff themselves, and simply look no further than Californian internet companies and think-tanks for their ideas.

Under Neelie Kroes, the European Commission for a Digital Agenda saw itself as a revolutionary vanguard, and instead of creating a distinctively European identity, became a kind of Google think-tank.

Levine sees the European Parliament’s vote as the start of an end of an era, rather than beginning of a new one.

“The Pirate Party is no longer growing — there’s a sense that people may not be as upset about copyright as she thinks they are. Clearly, some of her concern has resonated with people [still fewer than 1 in 12 voters at best], but once they realised the implications of her solutions, it faded. There is a reason people have rejected this kind of Pirate Party thinking.” ®

Bootnote

*Weirdly, Reda's report has an accompanying "campaign", called "Save Copyright Reform", as if copyright reform is an endangered species, like the blue whale. The implication is that copyright won't be revised if her own "campaign" fails.

In fact, there has barely been a year where any part of Europe's institutions are not discussing reform. For example, the DG INFSO/DG MARKT Reflection Document (2009), the 2011 blueprint, the Barnier Consultation, and more.

The European Court is mulling cases involving distribution rights, digital exhaustion, private copying levies, exclusivity, e-lending and many more issues, and will do so for years, regardless of the Digital Single Market initiative. Europe is constantly revisiting laws. It's just how it works.

Bootnote 2

Julia Reda’s personal mouthpiece got in touch with us - to complain. It’s not fair, he says, that we said that only “digital activists” back her plans for change. He then cited a list of groups who use rather than create copyright works and who want the law changed in their favour. The list includes Humanistica [digital activists], VZBV [digital activists], Bitkom [technology industry], AMEC/FIBEP [site scrapers], and library and archive groups EBLIDA, IABD, AFB and the League of European Universities. We’re very happy to clarify.

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