EU struggle on creative rights: in who’s best interest?


EU struggle on creative rights: in who’s best interest?
by Claire La Combe



Next Monday, April 27th, will be held an “extraordinary meeting” of the EU Parliament Committee on Culture & Education (CULT) in Strasbourg, with Commissioner Andrus Ansip (VP. For DG Connect) on the future strategy for a Digital Single Market (DSM) in Europe. There are today few chances that this meeting will have an “extraordinary” outcome for culture. After months of discussions between EU institutions, politicians, states, stakeholders or citizens on how to conciliate easy digital access and good financing for creative works in Europe, there are still no clue of a decent proposal. Pretty ordinary: exchanges of views are often one-sided biased. Today, the struggle on creative rights in the digital age has fostered caricatures. As if they all lost track of the basic demand…a rich European creative environment.

Blame Reda! The MEP in charge of an initiative report on the revision on the 2001 Directive on copyright has become the pet aversion of many parliamentarians. Julia Reda’s draft text failed in convincing a majority because it was not enough tempered. By promoting a reform of copyright, Julia Reda drew a shortcut between authors’ rights and (intangible) barriers for users. From it, critics against the MEP and her text were easy to shape. The debate was almost reduced to a fight between remunerated authors vs free content users. “I have been misunderstood” the MEP said. “Taxation and e-commerce are not part of the directive I was in charge” she also said. She almost forgot that the Pirate party’s flag was floating behind her back…A bit by naivety, a bit by high self-confidence, Julia Reda kind of ruined the debate before it could turn pragmatic. Internet providers & e-commerce intermediaries’ practices should be questioned. Portability issues are ones tangible. Not to forget: the 2001 Directive on copyright and the 2000 on e-commerce were drafted as mirrors to each other.

Shame on Member  States and politicians. Reda is a very catchy name, the Pirate MEP and her initiative report are the easy target. The real issue behind this debate is the European Commission’s agenda to create a Digital Single Market in EU, with the objective of harmonising national rules to help (notably) pan-European sales. The debate is a lot more complex than dual oppositions between authors versus users, or EU states versus the USA, or GAFAs versus national tax systems. Yet, politicians can’t help simplifying the debate in accordance with their audience. “Those who create works are the one who should be fairly remunerated for the use of their works” jointly declared France and Germany, and Italy. False! “Those who create” are not the only one deserving a little something. The chain is composed with many intermediaries who first remunerate authors, taking a risk on their own.“We need a European tax harmonisation” requested Fleur Pellerin about internet providers. True! But what about traditional means for creative works circulation? Geo-blocking or GAFA issues are fashionable. Not to forget: traditional ways of sharing culture remain the biggest, member states still have the initiative on European incentives and broadcast practices.

For real, the debate is “composite”, reflected by the value chain of creation. Intermediaries (producers, editors, distributors, buyers, sales etc.) are playing at a European level to a certain extent, with national rules and mostly with local consumer specificities. And consumers (not users)! They shouldn’t be forgotten for their role in creation neither. They are at the very end, but in the same time at the very beginning. Catalyser of the value chain. In this chain, authors are the first one to be (partly) remunerated, by people who believe in their project and who make it available to an audience. These professionals recoup their investments thanks to consumers, who, by sharing their enthusiasm help adding more value to a creative work and spread money to associate right holders, who, will end by reinvesting in creation again, and again.

Beware of simplification. One digital market can only be a success if basic mechanisms of creation are well aware by everyone. With the internet, a new era of intangible opened. At first glance, it seems that barriers on the web can be lifted with one thumb (up). Though, it is wrong to believe that consumers have become only users (ie. pirate users); as it is wrong to believe creators don’t need intermediaries any more, to promote or help circulate their works. Studies already show that contextualised creative works are better sold on digital platforms than the ones made available without any promotion or extra content. Digital promotion has to be as tailored as the one for traditional distribution. Time out! A good circulation, a diverse culture and dynamic creative environment, isn’t it the one thing everyone is speaking out for? Expertise has never been that much needed with digital access. That is why a real dialogue between all parties has to be planned before any reopening of directives. Everyone has to understand each other’s role. Everyone on the chain has rights, everyone on the chain is right. On Monday April 27th, talking about culture with Commissioner for Digital, what would be extraordinary is that Commission calls for a break. By rushing a reform (end of the year), they’re all messing up. Today, such a struggle on creative rights is no one’s interest, certainly not culture.