How will MEPs shape EU copyright law?

By Doru Frantescu, Director and co-founder of VoteWatch Europe 

Last review: 19 June 2015.

This article discusses how the Members of the European Parliament (MEPs) are likely to shape the new EU copyright laws. We show that the conflict within the society between those who consume and those who create digital content has been transposed in the European Parliament in the struggle between the political forces on the classical left-right axis. We predict that the “pro open content camp” will gain the upper hand and will push for a softening of the regime of copyright throughout the EU, such as the abolition of geo-blocking and territoriality principle. We map the MEPs’ positions by ideology and country and show that, while the ideology is the main predictor of an MEP’s vote, the country of origin also plays a role (e.g. the French Members of the Socialist group have a position more in favour of protection of cultural property than the rest of their group colleagues, while the British Labour are more in favour of free market and protection of property in general, compared to their continental colleagues). 

On 9 June, the report drafted by the Chair of the Legal Affair Committee Pavel Svoboda (EPP – PL) on Intellectual Property Rights Enforcement was voted during the EP plenary session in Strasburg and was approved (with 529 votes in favour and 143 against).

On 17 June, the report drafted by the German Pirate Party’s Julia Reda proposing major changes to copyright laws in the EU has been adopted by the European Parliament’s Legal Affairs committee (JURI) after it spent several hours voting on 550 amendments. (23 votes in favour, 2 against). The report will now be voted on by the full European Parliament on July 9, where more amendments could be made. The final text will then be sent to the European Commission, which will use it as input for a legislative proposal on copyright reform, expected to appear by the end of the year.

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In May, the European Commission put forward the long-awaited guidelines for a digital strategy. The Pandora’s Box is now open and the Commission will take on board reactions from various segments of the society and politicians.

While there is a large consensus that going digital is the way forward, some of the areas have raised a high level of controversy. Perhaps chief among these is the approach to copyright, on which the Commission has announced plans to follow up with legislation before the end of 2015. Intellectual property seems to be one of the most hotly debated areas and which lines up impressive lobby efforts on both sides of the reform.

On the one hand, those who want a greater access of the public at large to goods and services produced by artists, writers, designers, film and music producers etc. On the other hand, those who hold these rights fight for keeping their intellectual property as much and as long as possible and oppose a reform that would diminish their negotiating power in relation to their consumers.

The stage for the clash is now set in the European Parliament and the Council, where this battle between various segments of the public is transposed into the classical left-right cleavage among the politicians, with the left-of-the-center MEPs taking the side of the consumers (which are pushing for a more pay-free access), and their center-right colleagues generally putting more value on the respect of the private property of the producers and rights holders.

Many businesses and stakeholders are taken by surprise when they see what kind of EU law has actually come out of the EP. However, the analysis the position of each key player and the overall balance of power can provide highly valuable insights, forecasting the way in which the EP will shape key pieces of legislation (expected to be) put forward by the Commission. This analysis will discuss what is likely to happen to some of the key proposals aimed at reshaping EU copyright rules.

The battleground: two separate EP reports preparing legislation

Copyright and intellectual property rights (IPRs) have been continuously debated in the European Parliament in the previous years, which provides sufficient material to analyse in-depth the positions of the political forces. Currently, there are two reports in circulation in the EP, which aim at measuring the balance of power among the MEPs and sending this message to the EU executive, before the Commission comes with the concrete legislative proposals. One of them is steered through the EP by the green MEP Reda. This draft report aims at evaluating the implementation of the 2001’s EU copyright Directive[1] ahead of the upcoming EU copyright reform that should be put forward by the Commission in the fall of 2015. The vote on the draft report in the responsible EP committee should take place in mid-June and the plenary vote at the beginning of July. This report has become highly controversial, as many MEPs and stakeholders believe that the draft by Ms Reda is not balanced enough and seems to take into account only the views of end-users. As a result, more than 550 amendments were tabled.

The second one is a report drafted by the Chair of the Legal Affair Committee Pavel Svoboda (EPP – PL) on Intellectual Property Rights Enforcement. The aim of the report is to discuss the Action Plan presented last summer by the Commission, which proposes new enforcement tools, including a ‘follow-the-money’ approach seeking to deprive commercial-scale infringers of the revenue flows.

The draft report is broadly supportive of the Commission’s approach. It insists on targeted information campaigns and considers it necessary to support SMEs in enforcing their IP rights. It also considers that all forms of IPR infringements should be tackled, including those occurring in the online environment.

This report was adopted by the Committee at the beginning of May by 19 votes in favour and 2 against[2]. All the centre-right parties, EPP, ECR, ALDE and EFDD plus the Socialists supported the text. On the contrary, the MEPs from the Greens opposed the proposal. The vote in the EP plenary will take place in June.

The balance of forces: the pro-openness camp gains the upper hand in the EP

After the EU elections in 2014, the pro-openness camp in the European Parliament has been reinforced, at the expense of the rights’ holders one. In particular, the EPP group has lost around 50 seats. In the past EP, the battle lines have put on one side the socialists, greens and radical-left, and on the other side the People’s Party and conservatives. The liberal-democrats (ALDE group) have balanced back and forth between these two camps, depending on the exact phrasing of the issue, while the remaining group, the eurosceptics (EFDD), have usually been split (and so did the non-attached MEPs).

The balance of power was first measured in the current EP term on the occasion of the vote in November 2014 on EP’s position on Digital Single Market. At that point, the EPP and ALDE tried to replace a pro-open content paragraph with a more pro-copyright version, also calling for a harmonised and integrated system of copyright (initial statement on the left, the amendment supported by EPP and ALDE on the right):

Supporting consumer rights in the digital single market

Motion for a resolution

Paragraph 13

Motion for a resolution Amendment (drafted by ALDE, also backed by EPP)
13. Calls on the Commission to come up with the long overdue copyright reform, in particular with regard to measures which would enhance the potential of the digital single market, particularly concerning access to content, dissemination of knowledge and viable models for cross-border services; considers, in this connection, that the review of Directive 2001/29/EC is fundamental for the future reform, which should take into account new technologies and consumer and user behaviour;
  1. Urges the Commission to thoroughly take stock of the existing legislation in the field of intellectual property rights (IPRs) and to come up with a proposal on IPRs which balances the interests of both consumers and right holders; furthermore, calls on the Commission to establish a cross-border EU harmonised and integrated system of copyright which balances the inherent value and appreciation of creative and artistic content with consumer rights; stresses that the creative industries are the most flourishing sector in the EU, providing stimulus for growth and jobs but also supporting innovation in line with the Europe 2020 strategy; recalls that Parliament has established a Working Group on IPR and copyright reform in order to facilitate solutions in this area and to help such a reform be undertaken;

However, EPP and ALDE were left in minority, losing by a margin of around 70 votes.

EU wide IPR, overall

Notably, the Hungarian delegation in the EPP broke away from the group line and voted alongside the pro-open content camp.

EU IPR, EPP

Conversely, the French socialist delegation (and some of the Italians) broke away from the S&D group and voted alongside the pro-copyright camp.

EU IPR, S&D

There were no other key votes so far in the current term to allow for a more in-depth analysis, but a look at the historic developments from the previous term adds valuable insights of who is in favour of what.

In September 2010, the EP plenary voted on the Gallo report titled “Enforcement of intellectual property rights in the internal market”. This non-legislative resolution was the answer to the Commission’s communication on the same subject. The final shape of the text was largely in favour of strengthening the position of rights holders. It expressed regret that the Commission did not put forward measures to complete the legislative framework by introducing a set of measures to combat IPRs infringements in an effective manner. The text also supported the harmonization at EU level of the fight against counterfeiting and welcomed the establishment of an EU observatory on counterfeiting and privacy as a basis for the implementation of measures to combat the phenomena and online IPR infringements.

The debate was harsh, and the final votes’ breakdown show that there was no room for compromise. The left-of-centre groups drafted their own version of the resolution, which aimed shifting the position of the EP to protect more the rights of the consumers. However, their resolution was rejected. Then, the centre-right (EPP,ECR and a part of ALDE) was able to reach a majority (328 to 245), thus shaping the EP’s position according their own views.

chart (71)

Notably, both the UKIP and French Front National have voted against strengthening the position of the copyright holders.

A more in-depth look reveals some variations within the largest political families according to the country of origin. Concretely, the British Labour delegation voted alongside the centre-right, thus being the most supportive of strengthening the (intellectual) private property from among the socialists and democrats group. Notably, the Spanish socialist delegation abstained.

SD split

The ALDE group experienced a dramatic rift, being split almost in half. The ‘pro rights holders’ camp was made up of the German, Romanian, Danish, Irish and most of the British MEPs, while the rest voted against or abstained. It is worth noting that this pro-free market faction of the ALDE group has suffered substantial losses in 2014 elections (the German delegation has halved, the British one was almost wiped out, while most of the Romanian delegation moved to EPP). Thus, one could say that in the 2014-2019 term the centre of gravity of ALDE has moved more towards the ‘pro-consumers’ position.

ALDE split

It is also worth noting the hesitations of the Spanish and Swedish delegations in the EPP, which did not follow the group line and abstained.

EPP split

A look at the votes on another document voted in 2010, a resolution stating EP’s position to the then on-going negotiation on ACTA, confirms the general orientations of the political families, as well as the internal splits. This time the vote was to strengthen the position of the consumers, thus the centre-left voted in favour and the other way around:

Acta 2010 resolution by the left

This time too, the British labour delegation had a different (more pro rights holders) opinion than that of their continental group colleagues. Signs of hesitations were noticeable in the Portuguese delegation, who abstained. ALDE was again split, while no splits were recorded in the EPP or ECR, which allowed them to win the vote.

On the other hand, provisions that were aimed at creating stronger premises for the retention of personal data were usually rejected by the EP, as most of the ALDE group sided with the centre-left and defeated a more security-oriented camp made up of EPP+ECR. For example, paragraph 30/3 of this resolution was asking the Commission to assess whether ACTA may change the current balance in EU law between the legal obligations of internet service providers to protect the personal data of end users and to disclose such data to intellectual property rights holders or administrative and judicial authorities.

ACTA, data retention paragraph

In the new Parliament, the ‘pro personal data protection camp’ commands an even bigger majority (close to a qualified majority), thus we should expect fierce resistance from the EP to any attempt by the Commission and/or the Council to create a legislative framework favourable to an easier collection of such data. In fact, this was confirmed in practice by the contestation of the EU-Canada PNR agreement, who was sent for a check at the ECJ by a large centre-left majority in autumn of 2014.

If we follow the same type of analysis and compile votes across amendments and dossiers dealing with IPRs, the nuanced picture is visible. The graphs below map the support for strengthening the regime and enforcement of intellectual property rights among the MEPs by Member State (data from the 2009-2014 EP term).

IPR overall

When we also factor in the political family, there are no differences across Member States in most of the groups, except for S&D and ALDE where nationality seems to play a role in the voting behaviour on this matter: among the S&D MEPs, the British Labour have a very different (more property-oriented) position than their continental socialist colleagues. The stance of the Spanish and Portuguese socialists is also more flexible.

IPR S&D

In the ALDE group, we see a clear split between the North (plus Greece and Slovakia) who are more property-oriented and the South, where ALDE MEPs are favourable to free access.

IPR ALDE

MEPs will aim to substantially weaken geo-blocking and territoriality’s legal basis[3]

Although the Commission has ultimately avoided putting detailed proposals to tackle geo-blocking in the proposals released in May and Commissioner Oettinger has been careful to leave room for exceptions[4], this matter will be addressed frontally by MEPs. A substantial (close to absolute) majority seems to be taking shape among the MEPs in favour of illegalizing the geographical restrictions that some distributors put when airing or web-streaming digital content. From the far-left to large portions of the EPP and ECR, Members have expressed their frustration with geo-blocking, arguing that this goes against the efforts of creating a genuine digital Union (although French MEPs in particular are likely to resist the move, as they believe ending geo-blocking would favour big players and threaten cultural diversity). Therefore, we should expect the EP to re-shape the Commission’s proposals by substantially weakening (and even try to scrap altogether) territoriality, which is the principle according to which the right holders can sell their rights separately, on a country-by-country basis, to the media. The majority in the EP will probably weaken this rights holders’ legal basis of power in their negotiations with broadcasters.

However, top officials from key member states have expressed reservations (including Germany, France, Spain, Poland[5]), therefore we should expect a push back from the Council. This is likely to make the negotiations between EU institutions lengthy and complex, hence the draft law may need two readings (conciliation would not come as a surprise either). In the end, the MEPs will have to settle for a moderate softening of the territoriality principle.

For comments or more analysis of MEPs’ and Member States positions, contact us at [email protected].

About the author

Doru Frantescu is the Director of VoteWatch Europe, a Brussels-based organisation he co-founded in 2009. A political scientist and communication expert, he is the main author of numerous publications on voting behaviour in the European Parliament and the EU Council of Ministers. His analyses have been quoted by the media around the world (including the New York Times, Financial Times, the Economist, Wall Street Journal, Euronews) and specialised research institutes in over 20 countries. 

[1] Directive 2001/29/EC: http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=OJ:L:2001:167:TOC

[2] https://polcms.secure.europarl.europa.eu/cmsdata/upload/e3bca57b-9876-4e61-94c5-a72d3b013081/2015.05.6-7_Result%20of%20roll-call%20vote_v02.pdf

[3] Territoriality of copyright = selling licenses to multiple broadcasters in order to maximise profits. Geo-blocking is the technological mean used to protect the territoriality principle of copyright. http://epthinktank.eu/2015/05/13/digital-single-market-and-geo-blocking/

[4] http://www.euronews.com/2015/05/17/ec-to-make-exceptions-for-tv-and-film-in-digital-single-market/

[5] http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%206787%202014%20ADD%201%20REV%201

 

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