The last couple of weeks have been improbably eventful and positive in Brussels on an issue notorious for moving slowly, if at all.

1. The Cloud strategy released on 27 September under the propitious title “Unleashing the Potential of Cloud Computing in Europe” combines a visionary layout of a successful migration to the cloud with a vibrant call to action. If executed properly, this godsend tool to deliver on the Digital Agenda for Europe will improve the daily experience of all Europeans and boost European business considerably. In particular, the cloud strategy explains how the exposure of content to consumers will gain from easier, wider access:

“For the cloud to work well as a platform for digital content services, including mobile services, there is a need for content distribution models that enhance access to and use of all sorts of content (music, audiovisual or books) across different devices and in different territories. Cloud service providers and right holders may agree commercial terms for licences allowing customers to access their personal account from multiple devices, irrespective of the territory from which the account is accessed…Consumers should be able, lawfully, to consume content away from home across the EU without losing access to services they paid for in any other member state.”

Definitely not short of tactical pointers, this strategy also addresses private copying levies, a particularly forbidding subset of the copyright thicket: “A cloud computing service may also permit content storage in the cloud. The consumer can use the cloud as a digital locker for content and a synchronisation tool to access content from different devices. Therefore questions arise on the possible collection of private copy levies for any private copying of content to, from or within the cloud. These questions, among others, are being examined in an on-going mediation process led by Mr. Antonio Vitorino. On the basis of the outcome of this process the Commission will inter alia assess whether there is a need to clarify the scope of the private copying exception and the applicability of levies, in particular the extent to which cloud computing services allowing for the direct remuneration of right holders are excluded from the private copy levy regime.”

2. Earlier this week, the independent Mediator appointed by Commissioner Barnier to: “explore possible approaches with a view to harmonise the methodology used to impose levies, improve the administration of levies, specifically the type of equipment that is subject to levies, the setting of tariff rates, and the inter-operability of the various national systems in light of the cross-border effects that a disparate levy system has on the internal market,” held the second round of his thorough consultations. On 2 April Mr Antonio Vitorino acknowledged the new business models that keep transforming access to content: “Such [business] models deliver new forms of authorised access to copyright protected content. They should at the same time enable right holders to better control the use of their content and the manner in which they are remunerated for it”.

True to his signature openness, Mr Vitorino this week gave a free rein to stakeholders to start what felt very much like the forerunner of a debate on alternatives to systems which have failed in their purpose to compensate for harm, which maintain barriers in front of consumers keen to access content anytime anywhere on their preferred platform and which thereby oppose one of the most formidable obstacles to the completion of a Digital Single Market. Having heard at length the main parties concerned, having donned more than once the gear of a plain moderator when the debate got a little too heated or threatened to err into country-specific bickering, Mr Vitorino will now deploy his wings as a fully-fledged Mediator expected to ponder the variety of inputs received and to forge his own views. While no one but him can predict the thrust of the recommendations he intends to make later in Autumn, it would come as a surprise if no reference at all was made to a new approach. This is because the point has been granted by all those who have tried to fix it over the last decade that the current system is ill-suited to the digital era, also because the mediator has decided to spend a great deal of time this week not on the essence but on the merits of moving on towards innovative substitutes.

This bodes well for the next step proposed by the ICT industry to set up a public debate to launch a proper discussion on alternatives. To be fruitful, this debate should be as open as plain brainstorming, although with a clear timeframe attached: indeed discussions held behind closed doors all too often foster deals made at the expense of the parties not invited or linger on with no tangible result. As to the substitutes hopefully resulting from this debate, they would – in full compliance with article 5.2(b) of the EU Copyright Directive – allow for artists and creators to be compensated fairly for acts of private copying which cause more than minimal harm to rights holders without impeding the digital content ecosystem. In keeping with Europe’s cultural diversity, they may, to a certain extent, be left to the discretion of Member States to devise and implement nationally, as long as they align with single market principles. Actually, the ICT industry is very careful not to convey the idea that they have just found the panacea: this issue is thorny enough to have resisted the sharpest and most well-meaning minds for decades, so the remedy belongs to consensus, not to a single stakeholder as powerful as it might look.

This week brought only a slight dissonance in this unlikely chorus celebrating progress: copyright was hardly mentioned in the Single Market Act 2. It may sound optimistic or simply realistic to consider that there are good excuses for this: the CRM Directive has started its legislative journey and the jury is still out as to the outcome of the mediation. Therefore only the unrepentant pessimists perhaps will regret that this down playing may pull the rug under the feet of the sense of urgency to unlocking Single Market-based solutions forcefully conveyed by President Barroso in his 27 February letter to 12 Prime Ministers.


This blog was penned by Patrice Chazerand, Director of Public Affairs, DIGITALEUROPE

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