Wednesday, 10 September 2014

New EU Commission, new home for copyright

This morning President-Elect Juncker of the EU Commission announced the portfolios which will be held by members of the incoming EU Commission, whose term of office commences on  (subject to the team being ratified by the European Parliament).

The new Commissioner-designate holding the Digital Agenda, German Guenther Oettinger, received an extra gift because, in addition to the portfolio he will inherit from Commissioner Kroes, the units responsible for copyright, formerly part of DG Market - for Brussels insiders, it is apparently units D1 and D3 of DG Market that are moving into what was known as DG Connect and will now be known as DG Digital Economy and Society.

This development is likely to be greeted with concern by the rights-holder community.  DG Connect and its incumbent, Mrs Kroes, have generally been seen to be pro-tech and telco-interests and less than supportive of copyright and the creative industries, while DG Market has been seen to be much more willing to defend the value of copyright in a digital age.

Brussels-watchers will doubtless be scrutinising Commissioner Oettinger's pronouncements for signs of whether he will take a more balanced approach than that of his predecessor - although as he has spent the last 5 years as Energy Commissioner, that may not be easy to determine.  Those looking for an upside might argue that the new DG DES will be forced to be more balanced because of its greater ownership of the creative economy - as well as copyright policy, the "Media" programme has been given to DG DES.

The Commission has announced a broader team that will have overall charge of digital policy, led by former Estonian Prime Minister Andrus Ansip - as Vice-President for the Digital Single Market, he will "steer and coordinate the work of several Commissioners, in particular the Commissioners for Digital Economy and Society; Internal Market, Industry, Entrepreneurship and SMEs; Employment, Social Affairs, Skills and Labour Mobility; Justice, Consumers and Gender Equality; Economic and Financial Affairs, Taxation and Customs; Regional Policy; and Agriculture and Rural Development."

Do readers see this as a downgrade for the importance of copyright policy in the EU?


Anonymous said...

If the rightsholder community is concerned, supporters of the 'Digital Agenda' of freedom and openness, previously espoused by Mrs Kroes, have been even more concerned, as evidenced by some of the contributions with the hashtag #OMGoettiger since the first suggestions of the appointment started leaking a week ago:

Former MEP Andrew Duff has an interesting take on the whole cabinet:

"... While claiming falsely, but as he must, that “I have given portfolios to people – not to countries”, Juncker has identified the trouble spots and appointed the Commissioner-designate from the most troublesome country to look after that very dossier...

"... The German Gunther Oettinger who hails from the country that is the most protectionist against US digital enterprise is given the digital agenda portfolio..."

Balancing conflicting public goods is of course at the heart of IP law.

But it's possible to question quite sharply what kind of balance the previous "do nothing" proposal from DG Markt represented:

"the two charts above indicate that current EU copyright is very unbalanced. When one side is completely satisfied with the status quo and the other is very unhappy then this is not a balanced situation. Given that a good compromise should leave everybody equally unhappy, the results of the consultation also show the direction for copyright reform efforts of the new EU Commission: re-balancing copyright requires at least some reform as demanded by end users and institutional users, most importantly a more harmonized and flexible system of exceptions and limitations."

Neelie Kroes persuaded a sufficiency of Commissioners that the previous "do nothing" proposals were not balanced, and did not represent the best future interests of the Union.

It will be interesting to see what happens next, but judging by the brief given to Oettinger,
Juncker seems to want something a bit more activist:

(page 4)
"We must make much better use of the opportunities offered by digital technologies which know no borders. To do so, we will need to break down national silos in telecoms regulation, in copyright and data protection legislation, in the management of radio waves and in the application of competition law... You should set clear long-term strategic goals to offer legal certainty to the sector and create the right regulatory environment to foster investment and innovative businesses. You should also ensure that users are at the centre of your action. They should be able to use their mobile phones across Europe without having to pay roaming charges. They should be offered access to services, music, movies and sports events on their electronic devices wherever they are in Europe and regardless of borders...

"During our mandate, I would like you to focus on the following:

• Preparing, as part of the project team steered and coordinated by the Vice-President for the Digital Single Market, ambitious legislative steps towards a connected Digital Single Market. You should be ready to present these within the first six months, and they should be based on a clear assessment of the main obstacles still to be removed through EU action, either by implementing existing policies or proposing new measures. More ambition should be added to the ongoing reform of our telecoms rules. A harmonised approach to radio spectrum between Member States should be developed. Copyright rules should be modernised, during the first part of this mandate, in the light of the digital revolution, new consumer behaviour and Europe’s cultural diversity... "

Chris Oldknow said...

This does seem rather a sign that Junker intends to live up to his promise of initiating copyright reform in his first 6 months. Taking all copyright issues and related cultural programmes into Connect is a definite statement. There is quite a bit that doesn't relate to a single digital market at all of course, but presumably that will receive less focus.
Splitting copyright from other IP will create challenges for revising the Enforcement Directive, and creates a challenging split for OHIM over the Observatory on IP Infringements. The unit that deals with tat other horizontal issue, safe harbours, has also gone to Connect, so a return of a Notice and Action Directive proposal seems likely.