How copyright drives Internet fragmentation, and why it is hard to fix

The EU Copyright Directive is arguably the most important recent legislation in the area of intellectual monopolies. It is also a failure, judged purely on its own terms as an initiative to modernise and unify copyright across the European Union. Instead, it includes many backward-looking features that go against the grain of the digital world, which are explored in Walled Culture the book (free digital versions available). It has also fragmented digital copyright law, as EU Member States struggle to implement a badly-drafted and self-contradictory text. For example, France’s national law went even further than the Directive in tilting the playing-field in favour of copyright companies. Germany, by contrast, attempted to produce a more balanced approach, recognising the rights of ordinary Internet users. The result is a patchwork of different laws across the EU – exactly what the Directive was supposed to eliminate.

A post on the International Federation of Library Associations and Institutions (IFLA) Web site points out that this is a global problem, particularly with regard to copyright exceptions:

while international copyright law is prescriptive about what minimum rights should be guaranteed, it leaves far more flexibility when it comes to exceptions, and is silent around cross-border working. As a result, there are as many sets of copyright exceptions as there are countries in the world.

The impact of this is just the same sort of uncertainty and caution about cross-border working as characterises other drivers of internet fragmentation.

That is, while minimum rights for the copyright industry have been set in stone globally, rights for everyone else are far from guaranteed, and vary greatly in different jurisdictions. This has practical consequences for key institutions, as the IFLA post explains:

Variance in copyright exceptions not only holds back librarians, as well as archivists and museum workers from cooperating across borders, for example in the context of research collaborations or online and distance learning, but can also be a driver of inequality. If researchers are expected to travel to access a unique source or collection, only the wealthiest are likely to be able to do this.

The result is just another example of internet fragmentation, and a particularly serious one in that it most directly affects key wider drivers of sustainability – education, research and cultural participation.

The IFLA post goes on to offer an example of how that fragmentation has been overcome in the past. The Marrakesh VIP Treaty allows countries to bring in exceptions to facilitate the creation of versions of works that could be accessed by the visual impaired, something that copyright law had often prevented. The Marrakesh VIP Treaty, discussed on this blog two years ago, was undoubtedly an important achievement, and did indeed help to reduce fragmentation in this area. However, it is worth noting that it was adopted in June 2013. A detailed history of the Treaty on the Knowledge Ecology International (KEI) site reveals:

In 1981, the governing bodies of WIPO and UNESCO agreed to create a Working Group on Access by the Visually and Auditory Handicapped to Material Reproducing Works Produced by Copyright. This group meeting took place on October 25-27, 1982 in Paris, and produced a report that included model exceptions for national copyright laws. (UNESCO/WIPO/WGH/I/3). An accessible copy of this report is available here.

That is, it took nearly 30 years of on and off negotiations for a treaty to be agreed, a delay largely the result of fierce resistance by the copyright world, which places the preservation of its intellectual monopoly above all else – even social justice and compassion. In a Walled Culture interview, the director of KEI, and one of the leading campaigners for a treaty, James Love, recalled: “publishers did everything you can imagine to derail this [treaty]”. Attempts to resolve fragmentation of digital copyright in the EU Copyright Directive and elsewhere are likely to meet a similarly fierce resistance, and will probably take as long to resolve.

Featured image by pxhere.

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