California über alles? Is MEP Reda flushing Euro copyright tradition down the pan?

Barriers, rights and a bit of a squint

Interview + update The European Parliament this week made one of its strangest ever decisions, endorsing the replacement of the European cultural tradition with American ideas.

Author and academic Robert Levine thinks Pirate MEP Julia Reda’s copyright reform* proposals are the policy equivalent of photo-bombing, and MEPs haven’t really twigged what they were voting for.

Parliament asked Reda, now Europe’s sole remaining Pirate MEP, to produce a report on behalf of the legal “wise owls” committee, JURI, and approved it this week.

On one level, the gesture is fairly meaningless — the EU Parliament can’t initiate laws, and this vote is a non-binding resolution that the European Commission, which actually does write the laws, can ignore. Reda’s draft was also smothered with 550 amendments.

In addition, only a predictable smattering of digital activists and groups who want to use, rather than create, copyright work, eventually endorsed her position. But it’s highly significant at the same time, says Levine, and people haven’t really noticed why.

That’s because in her recommendations, Levine explains, Reda discards the French and German basis of European copyright and replaces it with the Anglo-American concept. For a continent that spends much of its time bemoaning the influence of the USA, this is both ironic and strange.

Levine’s book Free Ride: How Digital Parasites Are Destroying the Culture Business, and How the Culture Business Can Fight Back is an unsparing look at the mistakes of the music industry and the growing power of internet companies such as Google. (“There’s plenty of blame to go round,” he told us in a 2011 interview).

“In the Anglo American world, copyright is a limited economic right. But in France and Germany ... copyright is a fundamental right. The right says that a work is indivisible and inalienable from the author,” he told us.

“Julia Reda’s logic is based on American logic — which is good legal logic, but it’s not from her own culture," he said. While Levine thinks Reda did a reasonable job of making her proposals sound palatable, the “the underlying logic is scarier than the proposals. And that’s troubling".

So we’re all Californians, now? Thanks, EU

To make sensible copyright policy, says Levine, you need to build on both approaches, the Anglo American and European traditions. You can’t ignore one or the other. So what exactly are the difference between the two intellectual standpoints?

The Anglo-American tradition is utilitarian and practical. It focuses on a time-limited property (or property-ish) right. The time-limited monopoly creates an economic incentive, so trade can take place.

The European tradition is much more unequivocal and rights-based, and emerged from the idea that a creative work is an extension of the human individual. For Germans, explains Levine, a work contains the “essence” of an individual. Harm the work, and by extension, you’re harm the person.

So, in the 19th Century the French enshrined these ideas as “moral rights”, or droit d’auteur. And when the EU came along, the French and Germans ensured it was based on their ideas, by making it a fundamental right. Moral rights are non-negotiable and absolute.

It has some interesting consequences. In the Anglo-American copyright system, rights pile up with intermediaries. Whereas in Germany, for example, you can’t assign your copyright to anyone — it always stays with you.

However, Reda’s bias, only looking at it from an American perspective, led her to a very partial view. “She’s not looking at copyright as a right granted to someone, but a barrier, a barrier put in front of other people to stop them doing something. But you need to look at it from both views,” he told us.

“You need to engage with the French and German traditions, and pretending those tradition doesn’t exist is basically anti-intellectual. Saying that all people need to do is make money, and exercise their economic right, doesn’t acknowledge those traditions," Levine said.

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