US Copyright Interests Seen Likely To Be Entangled in EU Harmonization Effort, but Effect Remains Unclear

The EU’s release of its DSM strategy “makes it more likely” that House Judiciary’s Copyright Act review will turn into more concrete legislative work, said Progressive Policy Institute Chief Economic Strategist Michael Mandel. “In the absence of Europe doing anything, the fact is nothing was going to happen in the U.S. because all sides were worried about reopening copyright law,” he said. “Europe has to make changes in order to reconcile their different countries, and depending on what Europe does it could ignite copyright reform in the U.S.”

It’s unclear how exactly Congress’s copyright legislative priorities will be affected at the policy level because “it’s hard to say where Europe is going to end up” in its harmonization plans, Mandel said. “Europe has an opportunity to modernize its copyright law and the U.S. has an opportunity to learn from Europe’s successes or Europe’s failures.” House Judiciary is unlikely to tie its future Copyright Act review plans to the EU’s progress on the DSM strategy, because the timing of the two processes appears to be “more of a coincidence than anything,” said Electronic Frontier Foundation Senior Global Policy Analyst Jeremy Malcolm.

The lack of clarity in the EU’s DSM strategy appears to be deliberate since European Commission President Jean-Claude Juncker and other EC officials want to “leave lobbyists on both sides in abeyance a bit longer,” Malcolm said. The EU proposal is essentially a “wish list,” with more concrete proposals likely to be shaped by a “tremendous amount of politicking,” Mandel said. “There will be implications” for U.S. copyright legislative priorities, but only for some aspects since European copyright priorities diverge slightly from those in the U.S., EFF's Malcolm said. The U.S. already has harmonized copyright laws nationwide, while the EU’s current situation is akin to every U.S. state having individual copyright laws that don’t always align, Malcolm said. EU and U.S. interests align more closely on issues like orphan works and data mining, he said.

Aside from legislative concerns, the EU strategy is likeliest to affect smaller U.S. copyright holders “who depend so heavily on being able to finance film projects and other projects by selling off exclusive distribution deals to get investments in their projects,” said Copyright Alliance CEO Sandra Aistars. The EU strategy also proposes to end geo-blocking, which limits "the ability to enforce those exclusive distribution arrangements,” Aistars said. An end to geo-blocking also would affect a common practice among U.S. companies to tailor EU versions of their work to satisfy varying language and cultural sensitivities, she said. “It’s unclear to me how much they’ll be able to harmonize all the differing legal requirements that might apply, but certainly it’s unlikely that anyone’s going to be able to deal with those differing cultural tastes in a way that will make it unnecessary to think about those things when creating and distributing a work in the EU.” It also will be interesting to see how the EU deals with clarifying rules around ISPs’ liability for unauthorized transmissions of copyrighted works since enforcement has long been a major issue in the EU, Aistars said.