[Advocacy Advisors] Implications of Oettinger (new EU Commissioner) getting Digital Agenda *and* Copyright ?

[James Heald]

Hi Dimi,

Really useful analysis.  Thank you.

Regarding contribution of the public domain, I see that
    http://www.fixcopyright.eu/  -- scroll down to the last section

is claiming EUR 1.1 trillion as the value of industries relying on 
Copyright exceptions in Europe (9.3% of GDP), compared to 16% of GDP 
estimated as the added value of the Fair Use industry in the United States.

These figures are presumably counterpoints to the infamous "%GDP of 
Industries relying on Copyright" figures that regularly get trotted out, 
so I presume probably equally bogus -- though useful to have, because 
calculated on the same bogus basis, to show it can prove anything.


As for the Commission, I've seen a few pieces now saying that Juncker 
seems seems quite tilted towards the interests of established larger 
companies, with regulatory and environmental voices in the structure 
being downgraded, and/or merging conflicting voices/powerbases inside 
the Commission into the same directorate, reducing silo vs silo battles 
within the Commission by apparently burying the institutional critical 
voice within rather than outside the directorate.   (I'm interested by 
your comment about medicines, and would be fascinated to know more about 
that, but probably off list).

On Telecoms, Oettinger is presented as being likely to be closer to the 
big ex-national-monopoly incumbents;  particularly Deutsche Telekom.
eg
http://money.msn.com/business-news/article.aspx?feed=OBR&date=20140910&id=17921401
but I've seen the same comment elsewhere.

On Google, this WSJ piece highlights the "extraordinary pressure being 
deployed by German interests, above all publishing houses... German 
media associations did speak with other commissioners and their 
cabinets, it was an ongoing process all summer."

http://online.wsj.com/articles/german-french-pressure-led-to-eus-about-face-on-google-1410382048?mod=WSJ_World_LatestHeadlines

So I guess if it is Springer vs Google for the future of Europe's 
copyright policy, we know that Springer etc already know their way to 
Oettinger's door.

I guess that's just part of the landscape that we have to work with.

Do the Brussels lobbyists for the likes of Springer and the press 
publishers' associations BDZV and VDZ have a sense of where their orgs 
stand on some of the smaller copyright issues, the ones that are so 
important to us, like unified and liberal rules on FoP and other 
anomalies?  Presumably they might not be unfavourable to more 
European-wide consistency, and greater ease for publication of images of 
these things, being publishers themselves ?


Anyway, thank you very much again for your very timely dispatch from 
right on the spot.

All best,

    James.


On 12/09/2014 11:21, Dimitar Parvanov Dimitrov wrote:
> HI James,
>
> thank you for the very thourough research and and sorry for answering just
> now. A lot of things are coming together after the summer break bumping my
> response time to well over the 24h benchmark.
>
> I don't think it is inappropriate to discuss these things on a public
> mailing list, as it is pretty much what people discuss on any public forum
> on EU politics these days. Also, what I got from the lobbying discussion at
> Wikimania is that we should try to be painfully open about our advocacy
> efforts and this in my mind includes public discussion.
>
> Here's some of the things that are being talked about (well, gossiped about
> at this point) in Brussels:
>
> *Structure*
> Structurally the changes aren't bad at a first sight. DG Connect has always
> been much closer to the entire civil society/reformists position than DG
> MARKT. The latter basically just want to have everything licensed and are
> afraid to make a move which could upset some big industry. DG Connect has
> been basically on our side on topics ranging from text and data mining over
> open access to the re-use of public sector information.
> Having an additional VP on the digital single market clearly supports the
> seriousness of Juncker's claim to make copyright reform (i.e.
> harmonisation) a priority. Also, when it comes to digital issues it is
> clear which VP is responsible for DG Connect. Other VPs might have
> overlapping portfolios, which isn't always good.
> What people here are really puzzled about is the statement that VPs will
> have the right to veto proposals within their sector. The reason why this
> is so strange is that in the past Commission decisions have always been
> taken unanimously, meaning that every Commissioner had the power to veto
> any decision. We don't know what this statement means but feel like
> something has been sneaked by us and/or the media. But maybe there are just
> too many Commissioners now and not enough portfolios and this many-VPs
> arrangement is just an attempt to create enough seats.
>
> *Appointments*
> Oettinger has said himself that he knows close to nothing about the sector
> but believe he can catch up. Nevertheless this feels like it has been a
> slap in the face for Germany on the meta-political level. Maybe because
> Merkel didn't support Juncker at first, bust that's just political
> astrology.
> Robert Madelin (whose Twitter account is @EuroHumph btw, a wink to the
> series "Yes, Minister")  has been running a large part of the show in DG
> Connect under Kores and I don't see why this should stop. The thing about
> Robert is that he's neither for nor against copyright reform, he's game is
> what you can call "practical politics". The idea to put net neutrality and
> roaming charges in one package was his, because he had previously brokered
> a deal with the Telcos - removal or roaming charges for the acceptance of
> special services on the internet.
> The exctiting question for us now is whether the entire copyright unit is
> just moving from one DG to another of if the new Commissioners will also
> restructure it. Currently we have a good working relationship with DG
> MARKT's copyright unit and I believe the people working there do see the
> sense in what we have to say are very open and welcoming whenever we
> contact them.
> The Estonian Commissioner is a bit of an enigma. Good news is that we have
> an active community and chapter in Estonia and they promised to do some
> recon on him. He's been a staunch supporter of ACTA and is no digital
> native. He also picks up a lot of the big industry examples (the success of
> Skype), but if the goal is to harmonise the EU copyright framework and
> remove national borders on the digital single market that's not the worst
> thing.
>
> *Side-note on medicines*
> The people I know working on access to medicines are actually quite happy
> about the re-shuffling in this field, but I can't give you any background
> on why. I believe it has something to do with the people working in the
> DGs. If you are interested drop me a line and I will ask for you.
>
> *Future Action*
> The hearings are upon us and I am sure the Commissioners working on our
> issues will get asked tough questions. And although Kroes proved that you
> can be great at speeches but terrible at acting on it, it is still at good
> litmus test. This being said, if you can think of any particularly good
> questions for the hearings, please share and we'll propose them to the
> MEPs.
>
> Once the hearings are done with and the new Commissioners and moved units
> have unpacked their boxes we'll welcome them with our position paper on
> copyright [1] and seeking out personal meetings with the key figures. The
> idea here is to strengthen the people who want a meaningful reform ahead of
> the release of the White Paper on Copyright (which is of course also moving
> DGs).
>
> While copyright was at DG MARKT we knew we have to put a price tag on the
> public domain. Now the need for this is less acute, but nevertheless it
> would be good to have such research. I am having an IPR Observatory working
> group meeting this month and hope to hear news on a study we requested on
> "The contribution of public domain and open licensing to the European
> economy". Such research would be an important cornerstone in our supporting
> documentation.
>
> I am carefully optimistic.
>
> Cheers,
> Dimi
>
> [1]https://meta.wikimedia.org/wiki/EU_policy/Position_Paper_on_EU_Copyright
>
> 2014-09-11 22:32 GMT+02:00 James Heald <j.heald at ucl.ac.uk>:
>
>> A little more:
>>
>> * By background Oettinger is a tax lawyer, not in full-spectrum law firm,
>> but in a specialist tax and accountancy firm that he ran.
>>
>> At university he read law and economics.
>>
>> * According to a profile,
>> http://www.thelocal.de/20140911/gunther-oettinger-
>> foot-in-mouth-to-brussels-native
>> his English is said to be now much improved.
>>
>> Recently he has been particularly active in the Ukraine, on behalf of
>> Germany and the EU, trying to broker talks between the Russians and the
>> Ukrainians. (He got the job since energy is so important to the conflict)
>> Together with the EU's new foreign policy commissioner, he was leading a
>> briefing and discussion session on the topic this afternoon for the new
>> commissioners.
>>
>> A memo to him from think-tank Bruegel (written before the post had also
>> acquired the copyright responsibility) emphasises identifying a clear
>> vision for telecoms reform as a priority.  The expectation is that there
>> will be approval for significantly more consolidation, in return for more
>> investment; with the question of net neutrality also to consider.
>> http://eu2do.bruegel.org/digital-agenda/
>>
>> Given Oettinger's recent background dealing with multinationals at Energy,
>> this may be one of the parts of the job he feels most at home with.
>>
>> Regarding copyright, but across the board Juncker seems to have downgraded
>> regulation (eg moving medicines approval from health to industry !?) in
>> favour of enterprise; also trying to emphasis the interests of regular
>> users/consumers; and using this to build the case for more Europe-wide
>> consolidation of providers/contracts/laws/integration.
>>
>> All of this is likely to play towards (i) active harmonisation; and thus
>> consequentially (ii) some liberalisation in copyright -- despite
>> Oettinger's first very public attempt to score points at Google.
>>
>>
>> Structurally the DG, Robert Madelin, has a lot more independence than I
>> first realised -- particularly if Oettinger has as steep a learning curve
>> ahead of him as expected.  So it could well be that what Madelin said in
>> his interview last week on copyright might survive him now having actually
>> gaining primary responsibility for the role, rather than just being in the
>> position of throwing rocks at another directorate.
>>
>> (And surely he knew this was coming, when he made his remarks).
>>
>> So that is encouraging.
>>
>>
>> But it would still be good to know what are likely to be the strongest
>> influences on Oettinger as he comes to assess where he (and of course his
>> Estonian overlord Andrus Ansip want copyright to be going).
>>
>> For example, are there any particular CDU MEPs with positions on
>> copyright, that may be influential?  Are there particular CDU positions in
>> Germany?  Does Oettinger still have much in the way of strong links to
>> Wuttemberg?
>>
>> A big thing will be who he ends up appointing into his personal cabinet to
>> do his thinking for him on this.  I guess we just have to wait and see, but
>> it would be good to know if there are any connections we can make to try to
>> find out which way things are going.
>>
>>    -- James.
>>
>>
>>
>>
>> On 10/09/2014 22:54, James Heald wrote:
>>
>>> Hi Dimi,
>>>
>>> Tell me if this isn't appropriate for a public list, or whether it's too
>>> EU microscopic a question, but are you hearing anything on the grapevine
>>> about the likely implications at DG Connect of it getting
>>>
>>> (i) Oettinger as its new Commissioner, and
>>> (ii) the Copyright policy team being transferred over from DG Market ?
>>>
>>> Both are presumably likely to have major implications.
>>>
>>>
>>> DG Connect (which also covers telecom regulation as a big part of its
>>> brief) and its various predecessors has in the past very much been 'our'
>>> directorate in Brussels, pushing hard for freedom and openness, never
>>> more so than when Neelie Kroes (together with DG Research) got the
>>> Copyright white paper kicked back to be re-done a few months ago.
>>>
>>> The present DG, Robert Madelin, spoke a few days ago to EurActiv
>>> http://www.euractiv.com/sections/innovation-enterprise/robert-madelin-eu-
>>> not-putting-its-money-where-its-mouth-broadband
>>>
>>> with words about copyright very much in that vein (scroll down about 4
>>> screens), focussing on the need to enable better text and data mining
>>> (potentially a significant issue for Wikidata), and other issues.
>>>
>>>
>>> Moving copyright away from DG Markt could represent a big slap in the
>>> face from Juncker for the (stand-still) approach behind the previous
>>> whitepaper.
>>>
>>> In his "mandate letter" to Oettinger, it certainly sounds as if he wants
>>> some changes -- changes that Madelin's interview also appears very much
>>> to sing along with:
>>> http://ec.europa.eu/about/juncker-commission/docs/oettinger_en.pdf
>>>
>>> Juncker's aims for the portfolio (p.4)
>>> "we will need to break down national silos in telecoms regulation, in
>>> copyright and data protection legislation, in the management of radio
>>> waves and in the application of competition law."
>>>
>>> (ie much more Europeanisation and harmonisation of law)
>>>
>>> "You should also ensure that users are at the centre of your action.
>>> They should be able to use their mobile phones across Europe without
>>> having to pay roaming charges. They should be offered access to
>>> services, music, movies and sports events on their electronic devices
>>> wherever they are in Europe and regardless of borders. You will also
>>> need to ensure that the right conditions are set, including through
>>> copyright law, to support cultural and creative industries and exploit
>>> their potential for the economy."
>>>
>>> (Again, European-wide access to viewing subscriptions to copyright
>>> materials, overriding national-limited rights agreements is going to be
>>> quite a shift -- but very much in line with Juncker's commitment to
>>> Europeanisation)
>>>
>>> "Preparing, as part of the project team steered and coordinated by the
>>> Vice-President for the Digital Single Market, ambitious legislative
>>> steps towards a connected Digital Single Market. You should be ready to
>>> present these within the first six months, and they should be based on a
>>> clear assessment of the main obstacles still to be removed through EU
>>> action, either by implementing existing policies or proposing new
>>> measures...
>>>
>>> "Copyright rules should be modernised, during the first part of this
>>> mandate, in the light of the digital revolution, new consumer behaviour
>>> and Europe’s cultural diversity...  [alongside telecoms rules and
>>> spectrum allocation, both identified as priorities].
>>>
>>>
>>> But does this mean the existing DG Markt team lost the argument, and are
>>> now going to have to pipe to a new tune ?
>>>
>>> Or is it not so simple, and having lost Neelie Kroes *and* with a new
>>> influx of officials from DG Markt, is there a danger of the new team no
>>> longer being such cheerleaders for the case of freedom and openness ?
>>> (Open Knowledge, Open Data, Open Source, Open Access, Open Licensing,
>>> etc... )
>>>
>>>
>>> I am interested as to what is the thinking on the ground in Brussels
>>> about this?
>>>
>>>
>>> As for Oettinger himself, his first action seems to have been to fire a
>>> shot at Google, committing himself that its "market power could be
>>> limited, adding that he would work to ensure that the search engine's
>>> services preserve neutrality and objectivity."
>>> http://www.reuters.com/article/2014/09/10/us-europe-google-oettinger-
>>> idUSKBN0H519U20140910
>>>
>>>
>>> But that may be particularly a play to a domestic German audience.  As
>>> former MEP Andrew Duff notes, a systematic trait of Juncker's commission
>>> is that "Juncker has identified the trouble spots and appointed the
>>> Commissioner-designate from the most troublesome country to look after
>>> that very dossier."
>>>
>>> So, "The German Gunther Oettinger who hails from the country that is the
>>> most protectionist against US digital enterprise is given the digital
>>> agenda portfolio."
>>> http://andrewduff.blogactiv.eu/2014/09/10/jean-claude-gsoh/
>>>
>>> It may not be surprising therefore if Oettinger feels he needs to
>>> publicly establish a particular distance from Google, even though the
>>> Google competition case(s) don't at all fall within his remit -- how to
>>> prioritise them or not is a matter for DG Competition.
>>>
>>>
>>> He's also of course just spent 5 years fighting environmentalists
>>> (including his own department) at DG Environment, which means the Greens
>>> hate him, and no doubt it's probably mutual.
>>>
>>> This too makes it important to make sure that he doesn't identify
>>> 'Digital Agenda' / Open Culture with utopian Greens and Pirates and
>>> other radicals (or at least not only them); but with hard-as-nail
>>> calculating economistic neo-liberals like Neelie Kroes.
>>>
>>>
>>>
>>> The publishers, having previously said it was "absolutely crucial" that
>>> the copyright brief remained with DG Markt are now "looking forward to
>>> meeting with the new commissioner to explain how copyright underpins the
>>> dynamic and innovative businesses in publishing and the wider creative
>>> industries."
>>> http://www.thebookseller.com/news/juncker-commission-moves-
>>> copyright-enforcement.html
>>>
>>>
>>>
>>> One thing I'd be interested to hear thoughts on is whether Robert
>>> Madelin is likely to remain in post as DG Connect's director general,
>>> and therefore effectively become the new boss of the officials who've
>>> just been moved over from DG Market.
>>>
>>> In particular, Oettinger is notorious for being, in userbox terms, only
>>> an (en-2) speaker.
>>>
>>> Does Madelin speak good German?  (almost certainly, but do we know?)  Is
>>> Oettinger likely to prefer somebody with more native German?
>>>
>>> Oettinger's also presumably likely to install quite a German-speaking
>>> personal cabinet; which is therefore more likely to take its tune from
>>> positions in the Copyright debate in more German-speaking countries. Are
>>> there significant issues (strengths, weaknesses, opportunities, threats,
>>> etc) to be aware of in that?
>>>
>>>
>>> I assume, because it's quite a tech directorate, there are people we
>>> have reasonably good informal relations with at various levels in DG
>>> Connect (or if we don't, we know orgs/people that do), and probably even
>>> more so in DG Digit.
>>>
>>> Are we getting any sense from them as to which way *they* think the
>>> winds may be blowing?  Who is up and who is down, and who is likely to
>>> come out on top in the end?
>>>
>>> Is there anything we can do for *them* in the near future.
>>>
>>> Do *they* think there will be new work needed to re-establish the
>>> positive economic case for freedom and openness with the new team, and
>>> of course our own signature issues like FoP ?  (see also OT note on FoP
>>> issue below)
>>>
>>> Are things in the balance?  Are there arguments that people in there
>>> need evidence/zingers to help to make?  What can we do to help?
>>>
>>> Is there a risk the whole DG could go to the dark side?
>>>
>>> Fundamentally, we need to know where things are at.
>>>
>>>
>>> But that's quite enough email for now,
>>>
>>> All best,
>>>
>>>      James.
>>>
>>>
>>> (OT, but key issue with FoP: we need to make sure it is clarified not a
>>> permitted-use exemption, but rather an exemption from a copyright being
>>> inherited into the derived work in the first place. This is important,
>>> because a permitted-use exemption technically only applies in the
>>> country where the use is permitted, whereas no derived copyright at all
>>> in the work would apply worldwide -- we got caught a couple of years ago
>>> by a US takedown of some photographs of sculptures in the U.K. on just
>>> this point).
>>>
>>>
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