The European Union’s effect on copyright law

 

While the United States is widely recognized as a major copyright power, it has seldom been the driving force behind international conventions in copyright law.

For example, the US signed on to the Berne Convention in 1988, a full 102 years after the agreement was first accepted in Switzerland. However, even a full 20 years later, the US has not implemented all aspects of the convention including full moral rights protection and lack of copyright formalities.

Throughout history, European nations have taken the greatest initiative in reforming and changing copyright law. Europeans were the first signatories to the Berne Convention, including France, Germany, Spain, Italy and the UK. These nations have been at the forefront of many of the latest copyright extensions and changes.

While the US has taken a lead in the digital age with the DMCA, Europe’s role in carving out the future for copyright is increasing. As the EU looks to standardize copyright law across its member states, it is forcing a re-evaluation of copyright standards and causing politicians and industry leaders to look at the current situation and make difficult decisions.

Couple this with a very tumultuous climate for copyright on the Internet, and you have a perfect setup for several years of copyright change on the continent that often sets the tone for the rest of the world.

Troubled times

Anyone who regularly follows copyright news knows that much of it is coming from the EU. In addition to relatively bland policy discussions about extending copyright protection for musicians to 95 years, which would bring the EU in line with American law, and standardization of copyright feeds on certain goods such as burnable CDs, there has been a great deal of headline-grabbing copyright warfare.

In addition to the ongoing criminal investigation of the Swedish site, The Pirate Bay, a police raid also closed down the UK file sharing site Oink.cd, actions by anti-piracy groups forced several file sharing sites out of the Netherlands and a court ruling forced one Danish ISP to block The Pirate Bay, possibly against EU law.

However, not all of the action in the EU has been taken against pirates. Some radical steps have been taken to protect consumers in the EU as well. Those steps include a new proposal that would require all digital rights management (DRM) systems, those that prevent the copying of digital files, to be interoperable with one another. Also, a court ruling in the European Court of Justice held that EU law does not force ISPs to disclose information about file sharers, in stark contrast to US law.

While these conflicts have involved either the standardization of copyright law across the member states and/or the global campaign against piracy, politicians are being forced to examine these issues and that, in turn, has resulted in both the formation of a Pirate Party in Sweden and the Green Party in the UK openly advocating personal file sharing.

In the EU, there is greater political and judicial interest in copyright matters. That poises the EU to be a sharp battleground for copyright issues in the coming years.

Questions to answer

Although reforms in copyright are likely to happen across the boar,d, there are several questions that must be addressed in the immediate future.

1. The Role of ISPs: While Europe has typically had higher broadband penetration than other parts of the world, it remains to be seen what role those ISPs will have in dealing with copyright infringement. Although they have not been required to give up information on customers who infringe copyright, they may be asked to filter out copyrighted material and, as a new proposal in the UK suggests, ban repeat infringers.

2. The role of hosts: Unlike ISPs, which are merely conduits for copyrighted information, hosts often times are the ones serving the infringing material. The European Directive on Electronic Commerce requires hosts to remove infringing material after being notified, similar to the DMCA in the United States. However, as of this writing, the vast majority of member states have not enacted the treaty. This directly impacts journalists as such takedown notices are the most popular way of handling small infringements of copyrighted work in the U.S.

3. How to punish infringement: With many politicians wanting to legalize personal file sharing, there are questions about how strongly the EU may enforce copyright in the future. Already, cases of infringement are treated much more lightly in the courts. The trend seems only to be growing. It remains to be seen if and how this will affect commercial infringement, such as the taking of news content for profit.

A decade to watch

As a journalist, much of your livelihood is based on copyright law and you or your company’s ability to control, within reason, the distribution and copying of your work. For better or worse, the EU seems to be heading toward a period of great copyright upheaval, one brought on by a combination of technological advancement and political shifts.

Navigating the copyright climate for the next 10 years is going to be difficult anywhere in the world, but even more so in the EU. Europe is currently on the cutting edge of much of the debate. While that means that the EU morals and values regarding copyright will be well-represented in the rest of the world, it means that copyright holders operating in one of the member countries have nowhere to look to see where things are heading.

For journalists and other copyright holders based in the EU, the next 10 years are going to be filled with surprises and probably a few radical changes. As copyright law adjusts and shifts, there may be changes that directly affect, and even injure, your current business model. It is thus important to keep track of copyright news because even a seemingly unrelated ruling can have drastic impact down the road.

With so many forces at play, there is no way to tell where the changes in copyright law will take us. All we can do is be alert and be prepared to adapt to any changes that are necessary.