In recent months,  we have heard a very controversial debate in EU parliament about a copyright reform. I know this topic will not be so easy to understand and this is why I owe you an apology! For those I owe the apology I uploaded a lovely photograph I took in aquarium. Lovely right?

I spent some time thinking about the recent events and noticed that some people do not know what is going on in the current EU legislative process. Some are not interested while some believe the topic is too complicated to get into details and to some my article will not present anything new.

In short, copyright law tends to protect ideas that were transformed on the medium of fixation. The medium of fixation has developed from paper books to saving Word document on a computer. What I would like to discuss is the scope of copyright protection concerning two aspects that govern different type of values; protection of Information spread online governed by freedom of expression and protection of copyrighted works in the view of current proposal of EU copyright reform.

As Benjamin Disraeli once said: “Individuals may form communities but it is institutions alone that can create a nation.” In digital era ideas are easy to express and publish on World Wide Web with some help of social networks or privately owned websites. In my experiences, people are becoming more educated and more willing to share their ideas to brother public (communities). Social and technological changes in communities require institutional copyright reform.

Court of Justice of the European Union (CJEU) is admitting horizontal effect of the parts of EU Charter of Fundamental Rights in case by case basis, depending whether fundamental principles of EU law are at stake. Article 11 Freedom of expression and information is stating in paragraph 1 that everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. Further, in paragraph 2; the freedom and pluralism of the media shall be respected. With the respect to the just mentioned provision, freedom of speech must be defended strongly not only towards the state, but also among individuals. Expression of ideas that bring changes reflect the needs of people and inspire debate to move society forward. Freedom of expression and copyright provision must sustain in strong balance that enables criticism on one hand and sufficient protection for the author’s work on the other.

According to the recent digital development, Copyright directive 2001/29/EC is outdated. Insufficient copyright protection leads to licensing agreements that often jeopardise the balance between copyright owners and beneficial users, namely public, whose interest in copyrighted works is protected with certain doctrines namely fair use doctrine, first sale doctrine and expiration date of copyright protection. The intention of the Directive on Copyright in the Digital Single Market is to modernise copyright and to make it fit for the digital age.

EU copyright reform is insufficient to strike balance between author’s and public interest. The most controversial are articles 13, 11 and 3. Article 13 could (in the case of the enforcement) hold platforms responsible for any content their users upload, meaning that the platform is liable if there is copyright infringement. Latest technological development is insufficient to distinguish between fair use and copyright infringement, therefore a lot of legitimate speech could be censored. The definition of non-commercial platforms, which are excluded from the provisions of article 13 remains very problematic. Article 11 presents a way to help publishers fight back against multinational conglomerates such as Google and Facebook, forcing them to pay publishers for the content published on their platform. What seems noble and fair could have devastating effects, if big companies could choose which content from which publisher is acceptable and which is not. Article 3 establishes a new copyright exception for modern research methods (text and data mining) only for research institutions for the purpose of a scientific research, which would endanger a level playing field on international markets for European research and AI-based companies.

In general digital market brought products closer to consumers. They can buy them with a few mouse clicks, meaning that they can get them when they want them, where they want them and the most importantly the way they want them. Digital markets are very competitive. Distribution costs for digital products are zero, so providers of digital content can easily compete with quality of their products rather than storage prices, packaging, intermediary costs. Their brand is  embodiment of their product quality and the money the provider receive can be easily invested in further development and marketing strategies, due to increasing cost efficiency. It is very similar for non-digitalised content bought online. Retail price is lower due to online sales and easier distribution, since it can be achieved form a single warehouse, covering a bigger area with postal cooperation.

To conclude, I would like to add that every law provision would always lag behind technological development. Every new invention is a ground-breaking revolution that makes old technology unwanted and obsolete, while law needs to be observant enough to follow the social needs and change accordingly only after it reaches a certain point of consensus for adoption. The EU and national copyright lawmakers must take into account that the internet is not only a copying machine, but also a medium to exercise freedom of expression.