EU Copyright Law, Lobbying and Transparency of Policy-Making: The cases of sound recordings term extension and orphan works provisions

AuthorAgnieszka Vetulani-Cegiel
PositionPhD, Post-Doctoral Researcher, Assistant Professor, Adam Mickiewicz University in Poznan, Poland; Faculty of Political Science and Journalism, Department of Press Systems and Press Law
Pages146-162
2015
Agnieszka Vetulani-Cęgiel
146
1
EU Copyright Law, Lobbying and
Transparency of Policy-making
The cases of sound recordings term extension and orphan
works provisions
by Agnieszka Vetulani-Cęgiel, PhD, Post-Doctoral Researcher, Assistant Professor, Adam Mickiewicz University
in Poznań, Poland; Faculty of Political Science and Journalism, Department of Press Systems and Press Law
© 2015 Agnieszka Vetulani-Cęgiel
Everybody may disseminate this ar ticle by electroni c means and make it available for downlo ad under the terms and
conditions of the Digita l Peer Publishing Licence (DPPL). A copy of the license text may be obtaine d at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8 .
Recommended citation: Agni eszka Vetulani-Cęgiel, EU Copy right Law, Lobbying and Transparency of Polic y-Making: The
cases of sound recordings ter m extension and orphan works provisions, 6 (2 015) JIPITEC 146, para 1.
Keywords: Copyright; Law-Making; Policy-Making; Interest Group; Lobbying; Stakeholder; Consultation;
Transparency; Orphan Work; Sound Recording; Phonogram; EU; Library; Music
permitted uses of orphan works (some references
are also made to the ACTA case). Firstly, a short
presentation is given of the legal bases for the EU
consultation process and lobbying. Next, an analysis
is provided of the two cases, taking into consideration
the policy-making procedures (with special focus on
how the consultation process was handled), the legal
solutions proposed and adopted and the various
stakeholders’ claims. Lastly, it asks why some
interest groups were successful and some others
failed (the analysis identifies two types of factor for
the effectiveness of lobbying: those resulting from
stakeholders’ actions and those connected with the
consultation process).
Abstract: The objective of this paper is
to discuss EU lobbying in the area of copyright.
Legislation needs to regulate the legal position of
various different stakeholders in a balanced manner.
However, a number of EU copyright provisions brought
into effect over recent years were highly controversial
and have led to suggestions that powerful lobbying
forces may have had some influence. This article
investigates the effects of lobbying on copyright law-
making in Europe. A specific comparative and multi-
faceted analysis is provided of the legislative process
for two recently adopted directives: 2011/77/EU
which extends the term of protection of sound
recordings and 2012/28/EU which introduces certain
A. Introduction1 2
1 In recent years, the European Commission has been
very active in the area of copyright legislation. Its
activities, undertaken within the wide framework
of the digital single market, concern issues that
are important as regards the protection and
use of copyrights and related rights. They also
relate to areas connected with media policy and
digital culture. Within the past decade alone, the
Commission’s initiatives have resulted in the
following EU directives: 2010/13/EU on audiovisual
media services3, 2011/77/EU extending the term
of protection for sound recordings4, 2012/28/EU
on orphan works5 and 2014/26/EU on collective
management of copyright and related rights6. It has
also carried out work in relation to other issues, such
as private copying levies or out-of-commerce works.
Moreover, in 2013–2014 the Commission ran public
consultations on the review of the EU copyright
rules7 and conducted the ‘Licences for Europe’
EU Copyright Law, Lobbying and Transparency of Policy-making
2015
147
1
stakeholder dialogue8. The latter sought to ‘deliver
rapid progress in bringing content online through
practical industry-led solutions’
9
and covered the
following issues: 1) cross-border access and the
portability of services, 2) user-generated content
and licensing for small-scale users of protected
material, 3) audiovisual sector and cultural heritage
institutions, 4) text and data mining. Currently, in
connection with the above-mentioned preparatory
works, the Commission is carrying out work in order
to deliver ‘a copyright modernisation initiative’.10
2
As copyright provisions regulate different areas
connected with the creation, dissemination and
exploitation of protected content, stakeholders
of various types are affected by them. The main
stakeholders include rights owners (such as authors,
artists, publishers, various entertainment industries,
broadcasters, etc.), users (using protected content
for private or public purposes) and other parties (e.g.
collecting societies, internet service providers). These
parties (or the organisations ofcially representing
them) undertake lobbying activities of various types
in order to inuence the law, sometimes with great
success. The rapid development of new technologies
and the challenges of exploiting immaterial goods,
mean it is the voice of the various creative industries
(especially entertainment industries in the music and
lm sectors) that is particularly audible. Also, these
rights holders are exerting strong global pressures
to make copyright rules stricter; as but one example
among many, let us consider the Anti-Counterfeiting
Trade Agreement (ACTA)11. Nowadays parallels are
being made with the ongoing negotiation process for
the Transatlantic Trade and Investment Partnership
(TTIP)12. The scope of the EU directives and that of
ACTA draw attention to the copyright law-making
process, especially with respect to the transparency
of policy-making, the consultation process, the
representation of the various different interests and
the user protection (in terms of the copyright regime
and fundamental rights and freedoms).13
3 Lobbying, in general, forms part of the democratic
political process and permits society to participate
actively in law-making procedures. It plays an
important role in European Union law-making and
is shaped by the specicity of the EU institutional
system. Its large scale and well-developed
mechanisms result especially from the openness and
positive perception by the European Commission.
The Commission sets the EU’s policies and is therefore
the most signicant target of lobbying14. The
Commission is willing to cooperate with interested
parties and often seeks external expertise15 (this
approach is tied in with the ‘democratic decit’
and ‘resource decits’ of this institution
16
). It has
repeatedly underlined the benets coming from
stakeholders’ input to the creation and performance
of EU sectoral policies.
17
The open attitude of the
Commission towards interest groups has entailed
their inclusion in its policy-making process and in
work on legal mechanisms. In practice, lobbying by
stakeholders is provided for, inter alia, within the
process of consultation with interested parties (also
referred to as the ‘dialogue with the civil society’18)19
which constitutes a kind of institutional framework
for lobbying actions. Apart from contacting the
Commission ofcials in Directorates General,
stakeholders strive to address their interests at
the level of the Commissioners’ cabinets. Also the
European Parliament – due to its increasing role in
the EU law-making process20 and its ‘democratic
credentials’ – has become the ‘natural venue’ for
lobbyists, especially those striving for protection of
citizens’ interests.21 Another lobbying target is the
Council of the EU, although this is where it becomes
difcult to exert inuence. This is because, rst, at
this stage most provisions are already shaped and
secondly, it requires taking the ‘national route’
(contrary to the ‘Brussels route’) which means the
necessity of conducting lobbying at the national
level22. Although the European Parliament and the
Council amend the text, “it is not easy to radically
change the text of the Commission. (…) This means
that it is important for any particular interest to be
taken into account as early on as possible, ideally
in the Commission’s initial proposal”23. Having this
in mind, the article will, to a large extent, focus on
lobbying at the stage of the Commission work.
4
Lobbying by interest groups and the consultations on
EU policies held by the European Commission are two
cross-cutting processes. The European Commission
creates many opportunities for stakeholders to
participate in the debate on the possible development
of EU policies. In particular, it runs different types of
consultation, such as white and green papers, public
hearings, conferences, seminars, advisory groups or
bilateral consultations. These initiatives facilitate
access to the Commission’s ofcials and stakeholders
use these means to articulate their interests and
strive for better protection of their interests. It is
also a way for them (likewise for other entities,
independent experts, citizens etc.) to affect EU
policy direction and shape future legal mechanisms.
5
In general, at the EU level lobbying has a lawful
and professional character. It is provided for in a
structured way by a variety of entities representing
interests of third parties or a given interest group24.
Among such entities are international or European
branch federations (which constitute ‘umbrella’
organisations for national bodies, businesses,
NGOs etc.), national business or industry or
citizen associations, national or European NGOs,
corporations, consultancy and law rms, think-
tanks, representations of regions etc. Lobbying
consists mainly of presenting to the legislator
demands for establishing a certain level of legal
protection by either changing the law or keeping
the legal status quo. It may be performed in the form

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