The lull before the copyright storm?
THE FREELANCE once more went to press holding its breath: this time
waiting for the civil service of the EU, the European Commission, to publish
a "Communication" setting out its plans for your rights as authors.
In the meantime, the European Parliament's legal committee has commissioned a report that suggests that our campaigns for fair contracts are gaining traction. As the report puts it: "the balance of power between authors and performers on the one hand, and distributors on the other, is such that reliance on market forces for the determination of a fair remuneration and compensation is likely to be satisfactory only for a limited number of very successful creators."
That's really clearly put. We could have written it ourselves. We suspected we had - but have not managed yet to relocate it.
That's the plus side. The minus side is that the report is very likely also making use of exceptions to copyright for the purposes of research, et cetera, to quote verbatim from briefings by Google - for example in their rote support for the idea
of wider "exceptions" to authors' rights allowing companies to use
your work without permission, such as the exception for "Text and data
mining" that was introduced into UK law in October 2014.
As Pamela Morinière of the International Federation of Journalists summarises it, the study says that existing EU law "has provided 'very limited impact on fair remuneration and compensation for creators' and little benefits to end-users. It points at the emergence of powerful online intermediaries that can impose terms on everyone else - professional creators including journalistic writers and photographers, on would-be professionals and on strictly non-professional users of Snapchat an' t'ing.
What is to be done? The report - like the leaked draft of the Commission Communication that we have seen - does not come down firmly in favour of laws to deal with unfair contracts; neither does it rule them out.
European legislators are also being told how important so-called "freedom of contract" is and even that law to level the playing field is "paternalistic".
And in the UK...
Meanwhile, back in the UK, the Creators' Rights Alliance has followed up on its meeting with Minister Ed Vaizey with the detailed list of things that can be done about unfair contracts that he requested. We await his response with interest.
Updated 09/12/15: the Commission speaks
The Commission's Communication was published on 9 December. There are hopeful signs. For example it observes that there is:
growing concern about whether the current EU copyright rules make sure that the value generated by some of the new forms of online content distribution is fairly shared, especially where right holders cannot set licensing terms and negotiate on a fair basis with potential users. This state of affairs is not compatible with the digital single market's ambition to deliver opportunities for all and to recognise the value of content and of the investment that goes into it.
The Commission will also consider whether solutions at EU level are required to increase legal certainty, transparency and balance in the system that governs the remuneration of authors and performers in the EU...
None of the other proposals seems necessarily disastrous; there will of course be lobbying for the Commission to go further toward disastrousness. The big battle will be over the extent of new exceptions for educational use: should schools and universities almost stop paying for licences to use your work, as they have in Canada, with disastrous results for book authors' income?
The much-vaunted proposal on "content without borders" amounts to a requirement that Estonian television stations (for example) offer Estonian residents the chance to sign in to watch when they visit Brussels in the course of their work as an EU Commissioner (for example). The feared bonfire of the licences was a damp squib.