In just under a year’s time, the Copyright in the Digital Single Market directive (CDSM) should be fully implemented in EU member states. The Directive was contested at its inception, throughout its development, and once it was passed into law. While the text is now set, its interpretation at the national level remains the purview of individual states, and it is by no means guaranteed that the controversy marking its journey thus far, will abate.
Member states have made variable progress. As the CREATe implementation resource shows, some countries have tabled draft implementation bills, some have opened the bills up to stakeholder consultation, and some have not yet addressed the issue. Where consultation is part of the process, approaches vary widely. Ireland, for example, has consulted prior to formulating a draft bill by issuing a set of questions to the public, but responses are not visible and no report on the consultation has been issued as yet. In Slovenia, consultation was also carried out before drafting a bill, but without any questions to guide submissions, potentially limiting the relevance of responses. In contrast, Croatia invited public comment on a drafted bill via an already-established website where consultations are regularly promoted, and all comments are visible. Other countries have completely bypassed any kind of public consultation. In a classic example of copyright policymaking engaging primarily with its ‘usual suspects’, Sweden, Belgium, Lithuania and Slovakia have all convened discussion with a limited group of invited stakeholders and the outcomes of discussions are not transparent. In Sweden, adequate representation of user organisations was achieved only after NGOs challenged the government’s approach; it is not clear how much influence they will have when other stakeholders enjoy more established relationships with policymakers. In Belgium, leaked documents, rather than government initiatives, have been the source of public awareness while in Lithuania and Slovakia the outcomes of discussions on implementation have not been communicated to the public. Clearly, no matter what the apparently democratic structures of society suggest, across the EU the public right to influence an enormously significant policy is both limited and fragile.
The EU is due to produce guidelines for national implementation, but these are only scheduled to appear at the end of July, having been delayed by the COVID-19 crisis. Time, however, is short. The deadline is 7 June 2021, less than a year away, and the contested, highly complex nature of the Directive means that constructing a widely agreed formulation to guide national policy will not be easy. Debates are likely to revolve around the definition of exceptions at national level, the remuneration paid to rightsholders by online service providers, the parameters for use of upload filters, evidentiary requirements for blocking content, the nature of the correspondence between excepted content and the original, modes of dispute resolution, and many other issues.
In the already polarised context of the copyright debate, where even explicit commitments to wide consultation can founder, the danger is that the CDSM is added to the list of copyright policies that are permanently contested and (often) ineffective. Consultations are often introduced to try and find a balance between intransigent positions on such issues, but too often, these exercises fail to bring stakeholders together to engage in discussion and can simply recreate, rather than overcome, divisions. In the case of the CDSM, without genuine dialogue between online service providers, rightsholders, creative producers and users, it is unlikely that a widely acceptable form of implementation will be found.
Our recent project, Improving Deliberation, Improving Copyright, engaged precisely with this dilemma: how can copyright consultation processes become more effective, so that the prospects for more legitimate policymaking are increased? 34 stakeholders from a wide range of sectors engaged with copyright, and 10 members of the public, worked with us to generate a new framework for copyright consultations that they felt would improve both process and outcomes. While their experience was largely focused on the UK, the framework produced is generic, grounded in a stakeholder-centric, systemic understanding of the consultation process. We believe it has lessons for member states trying to ensure their policymaking process adequately engages with all interests and stakeholders.
The project identified two purposes and four principles for consultation design and evaluation. The epistemic purpose is to develop knowledge that will improve policy, while the democratic purpose is to enable stakeholders to contribute to policy and improve the accountability of policy decisions. All consultations should reflect one or both of these purposes; in the context of copyright, where stakeholders are already suspicious of excessive influence by powerful lobbies, a purely symbolic consultation is unacceptable.
The principles are: being inclusive (ensuring equal access and participatory parity among all relevant stakeholders); well-informed (based on robust, wide-ranging evidence and mutual understanding among stakeholders); equitable (demonstrating equal influence and equal treatment of stakeholder inputs, as well as a readiness to compromise); and accountable (delivering transparency in key areas, and providing adequate justification of processes, decisions and outcomes). Using these principles as benchmarks for practice can overcome current issues with consultations, including the tendency to place greater weight on some (usually industry-oriented) stakeholders and their evidence over other contributions; to view social and cultural outcomes of copyright policy as secondary to economic ones; and the opacity as well as lack of accountability for decision-making and outcomes.
The practical measures to realise these principles were many and varied, from mapping and monitoring stakeholder input to identify gaps in responses and using creative methods to reach stakeholders that are difficult to engage, to structuring opportunities for dialogue between different stakeholder groups and introducing tools and techniques that emphasise the need for balance and compromise (e.g. voting mechanisms, or sliding scales to illustrate trade-offs). Not all methods used in a consultation will achieve each principle equally, but if the overall mix of activities addresses each to the fullest possible extent, we suggest the possibility of both more legitimate consultation processes on difficult issues like the CDSM, and of better policy outcomes, will increase.