Saturday, 23 September 2017

EU Database Directive: Please answer the consultation now

Copyright is often touted as some kind of compromise between the rights of creators and the rights of the public. The idea is that there is a fair balance between what the two sides obtain from the copyright system. Even assuming that was once true, there’s a mechanism that guarantees copyright is no longer fair or balanced. It’s what might be called the copyright ratchet – the fact that whenever copyright protection has been changed anywhere around the world, it always tends to get stronger, or longer, or broader. In other words, over the years, copyright has been made more favourable towards the creators, and less favourable to the users. So even if copyright were once some kind of fair and balanced deal between the two sides, it certainly isn’t now.

This is not an original observation – it has been evident for many years. And yet as still more copyright laws are proposed and passed, they remain fundamentally biased against the public. That’s despite the fact that academics have repeatedly warned that such legislation will only make the playing-field even more tilted towards the copyright industry.

As well as consistently ignoring independent experts who warn beforehand against extending copyright yet further, governments around the world exacerbate the problem by failing to revisit legislation once passed to see if it provides the claimed benefits. To be fair, there is one notable exception to that statement. In 2005, the European Commission published a detailed evaluation of an earlier copyright law, passed in 1996: the Database Directive. CopyBuzz has already explained the background to this slightly unusual protection, which comes in two forms. These are traditional copyright protection for “original” databases, and something called “sui generis” protection for databases which aren’t original, but require a certain amount of effort in their compilation from other sources.

The European Commission’s evaluation noted: “The ‘sui generis’ right is a Community creation with no precedent in any international convention. No other jurisdiction makes a distinction between ‘original’ and ‘non-original’ databases.” The core question the report sought to answer was whether this new form of copyright had achieved its aim, and had encouraged the EU database industry to create more databases than it would have done without the sui generis protection.

The results were clear. The EU evaluation wrote: “the new instrument has had no proven impact on the production of databases,” and it admitted that there was no evidence that this copyright extension was “necessary for a thriving database industry”. The obvious conclusion would be that the sui generis right should be repealed, since it represented a curtailment of the public’s rights to access and use data freely, but without any demonstrable gain in terms of increased database production.

However, the copyright ratchet means that once in place, copyright laws are never reversed. And so it was with the Database Directive. Despite clear evidence that it provided no benefits, the sui generis right was not repealed, and exists to this day as yet another copyright monopoly that has been imposed on society without any corresponding benefit. That disregard for the concerns of the public was compounded by a further act of astonishing EU high-handedness. Article 16.3 of the Database Directive lays down that the European Commission is obliged by law to submit a report every three years on the the working of the Database Directive. And yet none has been presented since that lone example of 2005. A cynic might think that Commission was trying to hide the fact that the sui generis protection it had invented was a harmful flop.

As CopyBuzz reported last month, the European Commission has recently launched a consultation on the Database Directive, with a particular focus on the sui generis protection. It provides the public with a chance not only to express their views on this unnecessary right, but also to strike a blow against the copyright ratchet by calling for the Directive to be rolled back.

The consultation document is only available in English, French and German, but you can answer in any EU language – the closing date is August 30th. Even short replies will show the European Commission that the public cares about copyright’s adverse effects, and wants something done about them. One welcome feature of the consultation is that a draft version can be saved: when you do so, a link will be provided that will take you back to your stored answers (this can also be sent in an email.)

Not all parts need be answered, so you can pick and choose those that are of most interest or most relevant to you. A key question is in the “Impact on rightholders and users” section, which asks to what extent the sui generis right has been effective, and whether it achieves a good balance between the rights of database companies and of the public. Another question probes the relationship between the costs and the benefits of this right.

The other main section is entitled “Application of the Database Directive and possible needs of adjustment”. The key questions here are numbers 18 and 19, which ask how the Database Directive should be modified. My response for both is as follows: “The sui generis right should be repealed completely. Even though only one EU report was produced – despite a legal requirement for one every three years – it is clear that the sui generis right is unnecessary, and is simply another intellectual monopoly that has been imposed on the public for no benefit.” Once you have saved and submitted your responses, you can print or download them. You can read mine in this PDF file, for what they are worth.

The consultation about the sui generis right for databases presents a unique opportunity to loosen, if only slightly, the copyright ratchet that has constrained lawmaking in this area for the last three centuries. Please make the most of it before the 30th August deadline.

Featured image by Richard Avery.

Writer (Rebel Code), journalist, blogger. on openness, the commons, copyright, patents and digital rights.