Blog post by Stephen Wyber
There are some ideas about copyright and information regulation that just won’t die.
Their ongoing existence shapes policy discussions across Europe, at the EU as well as at the national levels, leading to outcomes that do not meet wider policy ambitions around research, education and culture.
So, to mark Halloween, here are just a few of these!
Inaccurate Cliché #1: The Philosophers’ Stone: copyright solves everything
The debate around AI is just the iteration of a long-standing practice whereby organisations whose business models are based on the exploitation of copyright (aka the Entertainment industry in the main) argue that more copyright helps solve a whole variety of issues.
In the case of AI, the argument is somehow that allowing copyright control over what materials are used to train models will improve the quality of the results they produce. This is of course absurd, given that restricting inputs will tend to lead to less complete models, and so potentially more dangerous outputs.
Elsewhere we see arguments that more copyright will support independent media (a competition issue), promote cultural diversity (unlikely when it tends to favour those best able to exploit it), and favour the interests of individual authors (unlikely given the weak bargaining power of all but the most famous authors).
Ultimately, copyright needs to be seen neither as a magical solution to everything, or indeed as a goal in itself. It is a tool that can work in some situations, but in others there is a far better regulatory tool likely to be available.
Inaccurate Cliché #2: The Wizard’s Wand: licensing works
The dominant (spectral) manifestation of copyright today, at least as concerns digital materials, is through licensing. These set out (supposedly) mutually agreed terms around how copyrighted material can be used.
The rhetoric from rightsholders of course tends to be positive. Licenses give them a huge amount of power in setting conditions, knowing that libraries often have very little choice indeed other than to accept in order to meet the expectation of their users and fulfill their statutory function. Rightsholders can also often use technological protection measures (“digital locks”) to uphold their preferences, with users (including libraries) frequently having little practical means of responding.
In the light of this, it’s hardly a surprise that frequently libraries’ perception of whether licensing is working differs. Concerns about high pricing, unfair terms, and simply the non-availability of content (e.g. eBooks) are common. The result is that libraries’ primary goal – to ensure that there is equitable access to research, education and culture – is not being met. Given that these are also commonly the goals that governments have, it implies that licensing isn’t working as it should.
Inaccurate Cliché #3: Incubus: flexibility doesn’t work in Europe
Another zombie myth is the idea that more flexible approaches to copyright are fundamentally unsuited to Europe. We typically hear this from opponents of reform, who draw on latent anti-Americanism to claim that flexibility is the same as American fair use (and so can only work under common law systems), and so neither desirable or possible in Europe (which is primarily about civil law).
The evidence does not point this way. First of all, Europe’s own copyright provisions, in particular the InfoSoc directive, are actually quite open, focusing more on principles (such as enabling uses for research) than on prescriptions (that X% of a work can be used).
More generally, flexibility itself is flexible. Alongside American fair use, there are other models which more specifically call out research for example, or which complement broader principles with guidance. And secondly, there is plenty of evidence from other civil law jurisdictions that flexibility can work, and certainly does not lead to the end of the world. Check out our report on open norms for more.
Inaccurate Cliché #4: The Midas Touch: research policy is just about subsidies
Another long-standing convention within Europe is that innovation policy is about regulation and the private sector, while research policy is about spending and the public sector. This has arguably been baked into the way that Europe works, in terms of where resources and powers are allocated.
However, the productivity of researchers is only partly a question of the money that is available, and the conditions attached to this. They must also comply with other laws, not least copyright, in order to pursue their missions. For as long as policy does not take account of these wider settings, there is a serious risk that money invested is not achieving the returns that it should, in terms of new insights and ideas.
Fortunately, we have the report on the impact of copyright and data law on open access and research, published earlier this year by the European Commission’s Directorate General on Research, Technology and Development. This is also the topic of a recent webinar by Professor Caterina Sganga, available here. This, combined with the clear calls in the Letta and Draghi Reports, and the reference to a European Research Area Act in the Mission Letter to the Commissioner-designate for research, hopefully point to a more comprehensive way forwards.
Inaccurate Cliché #5: Two-Face: it’s easy to treat non-commercial and commercial research separately
A final myth that does not seem to let go is the idea that there is a clear line between non-commercial and commercial research, meaning that laws can set different rules for each without consequence.
This is an idea that arguably has its roots far more in the copyright space than in the research space, where the idea of knowledge valorisation has been around, with one name or another, for many years. In effect, the reality of how research works runs violently against the image of clearly delineated non-commercial and commercial work.
Such research-industry partnerships are well recognised (at least by research policy makers) as providing a great way of bringing in more resources, as well as helping to translate new ideas more effectively into competitiveness and wider results. Europe indeed invests heavily in support for such work, only to see it undermined by copyright laws that introduce uncertainties and insecurities. It’s time to put an end to this self-defeating approach.
These are just a few of the undead clichés that stubbornly persist in discussions about knowledge and information regulation in Europe. To move forwards in ensuring the rights to research, education and culture, and the wider policy goals these in turn support, it’s time to bury them once and for all.
31 October 2024
