Interview with Jan Philipp Albrecht
Jan Philipp Albrecht is an MEP, and the Greens/EFA spokesperson for Justice and Home Affairs in the European Parliament. Albrecht is an expert on privacy and data protection among other areas, and is probably best known for successfully shepherding the EU’s hugely-important General Data Protection Regulation (GDPR) through the legislative process. What follows is a transcription of his replies, which were made in fluent English, with only slight re-touching for clarity. The interview took place at this year’s re:publica in Berlin.
GM: When did you first become aware of copyright as being an issue for things like privacy and surveillance?
JPA: I remember being brought into the copyright issue by a campaign at the beginning of the 2000s, done by the music industry. [It] was designed to make people afraid of copying music CDs, for example, because they would go to jail for years. That showed me we’re talking here only about the balance between those who have an interest in remuneration on the one side, and those who have an interest in consuming creative goods on the other side, or also using creative goods. It was also about how to enforce these rules and how to achieve proportionality in enforcing these rules. And that was why I then started a campaign myself for some kind of a fair use provision in German copyright law,
GM: How did that German fair use campaign go?
JPA: Mostly it was about raising awareness for the issue, that we have something to talk about here. Because the old copyright laws were not proper any more for the digital reality of mostly young people back then who were using the files of their CDs on their [digital] devices or copying them for their friends. You couldn’t compare a young person who copies a CD for his friend with somebody in a criminal ring selling counterfeit products.
GM: After that, how closely did you follow copyright in your political career?
JPA: Since then, this issue has followed me all the time. We are having most of the debates in the same way. We are having questions about fair remuneration; we are having questions about fair use; we are having questions also about the concept of protection for certain works and the exceptions to it, and we are having questions about enforcement online.
In the meantime we have learned some lessons, I guess, with rules like the three strikes out mechanisms, which showed us perhaps that it’s the wrong way to chase the consumers [and that instead] we should concentrate on those who are distributing content.
Copyright is a tool, and it has to be formed in a way that we get along with each other.
GM: You’re a shadow rapporteur for the copyright directive in the European Parliament’s Civil Liberties, Justice and Home Affairs (LIBE) Committee – how did that come about?
JPA: I was very active in my political group during the last term to work out a position of the group on copyright. It was quite heavy to do that because copyright is something that creates a polarised debate in all groups. You always have creative people who produce, but you also have people who consume and who would like to use further the works. We managed it, it was very good, but afterwards I decided to concentrate more on other civil liberties issues like data protection.
Now, with the copyright reform, it’s the civil liberties aspect that I would like to work on as shadow for the legal opinion. I think that a big question is still how do we deal with the fact that all of these rules need to be enforced, and that the enforcement needs to be in line with our understanding of rule of law procedures and proportionality also.
GM: How important do you think this revision of the copyright directive is?
JPA: It’s very important. We have the big chance of trying to make peace between groups who were very much enemies throughout the years.
GM: What has changed to make it possible this time?
JPA: My impression is that we have had very heavy debates in all the European Member States, but also across the Atlantic. In Europe, we had these debates on how far should copyright go, what’s the protection of it, what’s the value of it. But also where should there be exceptions, and what’s the value of exceptions and what’s the value also of the fair use of content. I think that it’s possible to not have this split between the artists and the companies who use their art or sell their art, on the one side, and on the other side consumers, Internet users or citizens who have different interests.
I think that a big question is still how do we deal with the fact that all of these rules need to be enforced, and that the enforcement needs to be in line with our understanding of rule of law procedures and proportionality also.
We have for example the interest of artists being sometimes similar to what the consumers want. There are also distributors who don’t profit from the current rules unlike their competitors. But also a bigger understanding among citizens and consumers that in the digital reality we should also talk about how to stop saying we want the creative works, but we don’t want to pay for it.
GM: Article 13 of the proposed copyright directive, which would require major Internet platforms to filter all uploads by users, seems very problematic: what are you views here?
JPA: I think that it should be very clear that there can’t be a general upload filter. Because of privacy and security issues, it’s not possible. We should not focus on those who consume such content, and we should not focus on those who use it for private purposes, we should focus on those at a commercial scale or with criminal intent try to abuse systems or try to circumvent the rules. There should be more focus on those and that means there needs to be more targeted law enforcement capacities in this area for those cases.
GM: What about Article 11 of the directive, which would give publishers a new ancillary copyright, sometimes called a “snippet tax” or “Google tax”?
JPA: My impression is that this additional right would not really change the situation for distributors [such as the press publishers] to get better remuneration in the distribution of the works. But on the other side, it would harm many artists and many content producers [trying to] increase awareness of their works and to distribute their works, and that seems to be a bad deal in the end for everyone.
Which doesn’t mean that I think that platforms like Google or Facebook shouldn’t [shoulder] responsibility when it comes to fair remuneration of these works. Because I see very much that they pay far too little in many circumstances where they really use works, to those who produce them. So we need to talk about the imbalance of remuneration and the amount which is made or in some cases not made. But we shouldn’t talk about even more rights, at least until we have settled the full extent of the existing rights on these platforms.
GM: Are German publishers serious about wanting this ancillary copyright, given that the idea has already been tried and failed in Germany? Or is it just a negotiating tactic?
JPA: My impression is that the whole debate is a bit exaggerated. For the publishers, especially those from Germany, France and Spain, this seems to be a fight which is more or less a matter of being right. They have talked so long about this, and they feel so cut short by these Internet companies, that they want just to win a fight rather than get somewhere. On the other side, we all know that it won’t build a new foundation. It could only – if at all – be a small additional possibility to obtain remuneration and a fair share of these companies’ [earnings] when they share links.
What we should really debate is whether these works are really used and if they are to be remunerated as such. I think there that publishers could more easily convince the public, and perhaps even some Internet companies, that it’s really the right thing to do. If Google really uses works, or Facebook really uses works, to get better content on their platforms, to get better advertising in connection with certain content, then they should really heavily remunerate those in accordance with their revenue because because they make huge revenues. So there is a reason in [asking for a share] but they just choose the wrong tool for it. I don’t think it will come in this form and I don’t think they will hold on to it much longer, it’s only a psychological issue.
I think that it should be very clear that there can’t be a general upload filter.
GM: What about other areas in the proposed copyright directive, for example the exception for text and data mining?
JPA: I think that it should be clear that we have to safeguard the opportunity of doing research on content and of allowing for future development on knowledge that we have. So, to not end the chances we get with the digital revolution, we should also safeguard the possibilities that it brings, especially for research and innovation. That needs to be done by also allowing text and data mining. Which doesn’t mean that you couldn’t do it in a way that you don’t circumvent the interest of those who produce texts to be fairly remunerated, but we shouldn’t just decide on it on a black and white scale but rather find solutions for this problem.
GM: Do you think that exception should be extended to include businesses too, since it doesn’t currently?
JPA: I think that depends. Generally, I would be very much rejecting this, because if a business uses those things in order to make money out of it, there should be at least fair remuneration. It’s not that I am not allowed to use it as a business, it’s just that I have to pay for it – that’s the investment cost which is there. If I develop a new service or a new kind of technical feature, I should get perhaps some kind of waiver or support to allow for this development to happen without overly burdening those who are just in the first development phase. But I think there shouldn’t be a general waiver for businesses because if you earn money with the content then you should also remunerate. If you don’t earn money with the content, I think that’s the other side of the medal, you should also have the possibility to further use this for whatever you want. That’s the open creativity that we all want.
GM: Are there any other areas in the copyright directive that you are concerned about, or pleased about?
JPA: There are some provisions on strengthening artists in contract law which I would like to strengthen even more. With regard to the possibility of individual licensing, for example, which goes already in a better direction to allow artists to decide how they want to get remunerated because there are different models which you could think of today.
GM: What is the Green party’s general policy on copyright?
JPA: It is exactly this differentiation between the use of copyright content for commercial purposes or those who are criminals trying to break or circumvent laws, and on the other side the use of copyrighted content by individuals for non-commercial purposes. In particular, the fair and further use for new creativity, for research, for innovation, and I think that should be protected. That was one of the leading issues in our paper – that there should be exceptions made which are solid in order to protect the balance between those two interests, and that we shouldn’t over-burden copyright protection, extending it again and again, and that we should have a properly ruled enforcement which is proportionate, and focussing on the supply of content rather than on the consumers.
GM: What can CopyBuzz, and people in general, do to help copyright reform in the EU?
JPA: My impression with legislative procedures like the copyright reform now, [is that] raising awareness of the fact that it is happening is already the biggest challenge. Only then is it possible for individuals or for NGOs or for other interested stakeholders to get their views across to the political decision makers. Getting across that there are solutions that balance the interests is an important issue, because there are some interest groups around that just try to get their view across and that’s it. That would lead to a very one-sided approach which I don’t think would bring us forward in this context.
GM: Any other thoughts on copyright?
JPA: I think that we should all learn to not see copyright as something good or bad in its nature. Copyright is a tool, and it has to be formed in a way that we get along with each other. I have had the feeling through the last ten years that copyright was more or less like some kind of religion which the one side was believing very strongly, and the other one was rejecting very strongly. That doesn’t serve anybody, and in particular, not those who have to live from their works, and have to see how they can do creative work, which we all want to enjoy.