Last Pirate in Brussels: Put ME in charge of yer IP treasure chest. Yarr!

Analysis With more individuals than ever posting their words and pictures to social media and sites like Flickr, you may think it's an odd time to weaken the copyright controls and protections we have over our work. Yet Europe has got itself into a unique pickle over copyright – and it was advised this week to slash such protections as European citizens enjoy today.

These protections stop us being ripped off by unscrupulous media companies and tech giants - who want to exploit people's work while paying nothing - and they tend to be respected by courts.

Europe's only remaining Pirate Party MEP, Julia Reda, was given the job of reporting on the state of European copyright law to the legal committee of the European Parliament. Several sources tell us that the offer was made so that Reda could do less damage to the process later on – and she would have been tactically wise to turn it down.

One observer summed up why they believed Reda's proposals were headed for the Brussels wastebasket, quipping:

"You don't reform the Single Market by getting rid of the market."

Meanwhile, Serena Tierney, copyright expert and Head of Intellectual Property at BDB Law, said:

"A lot of the report reflects the view that once if you've created something, I ought to be able to take it and make money from it, whether you want me to or not. I think that's unacceptable and most people find that unacceptable too."

Why are we here?

The new European Commission has vowed to re-examine copyright law in the name of improving the Single Market, with draft recommendations to be made within six months. The last commission spent 18 months looking at copyright for the same reasons and concluded Europe didn't need to throw the IP baby out with the red-tape bathwater – but did say that it could do with some useful measures to stimulate supply-side reform, like the UK's copyright hub.

This didn't please the sprawling "Commission for a Digital Agenda" (DG-CONNECT) apparat, which has adopted a carbon copy of Silicon Valley's Google-centric agenda. The DG-CONNECT eurocrats favoured a slash-and-burn approach.

When the EU's Michel Barnier, Commissioner for internal market and services, concluded that balance was needed and rejected (PDF, 190 pages) some of DG-CONNECT's more naive proposals (like a "User Generated Content Exception", which would have ensured nobody got paid for their work), "Steelie" Neelie Kroes' DG-CONNECT allies leaked the draft.

The new commission has promised to do something to keep them quiet. But it may be much less than they wish for.

Reda's report (PDF) (press release here) recommends centralising member states' laws from the top down, with "a single copyright law to rule them all" – aka "a single European Copyright Title based on Article 118".

"Member states would lose much of their autonomy," one lawyer and authority on implementing the Copyright Directive told us. "It would take 30 or 40 years to negotiate and would look something like a Franco-German compromise."

Even optimists think that such a process would take at least 10 years, and wouldn't look any more coherent than what we have today. Whether there will be an EU in its current form in 10 years is debatable.

So Reda's report was probably always destined for the wastebasket – and critics say it's just what was expected from an everything-for-free believer with no job experience outside political activism. Reda doesn't make proposals that could "stimulate commerce" – which was the commission's original brief. She recommends that protection of copyrighted works should be weakened wherever possible. Where the law can't be changed – because of international treaty obligations – it should be interpreted in a new way, in favour of anyone except the creator.

For example, the IP equivalent of the medical Hippocratic oath ("do no harm") – the Berne Three Step Test – should not mean what it says, Reda urges. She wants the EU to introduce "guiding rules for the interpretation of the Three-Step-Test", so if there are broader (undefined) social concerns of "fairness", then harm should be discounted. Other activists, such as blogger Mike Masnick, are cited as experts.

What do Pirates do? They STEAL things, in case you're forgetting

"It involves what Pirates have always done, and that's steal," is how Richard Mollett of the UK Publishers Association described Reda's contribution. "They want to take from member states their ability to determine those rules for themselves. And steal from creators the ability to exploit those works as they see fit."

Mollett highlighted one example of a Reda "tweak" where the consequences would be far-reaching.

"Despite a nod in the favour of creators being rewarded, Reda proposes almost a blanket exception for education,” he told us. “Because almost anything is used in education, trying to establish a broad exception for education purposes is saying to authors that you will lose your ability to be rewarded."

The IP Kat blog has a summary here, and reckons that revisiting contract law, which Barnier had recommended, is one of the Pirate's proposals that may have some merit. In German copyright law, the author cannot assign ownership – it's all contract. While, unsurprisingly, copyright trade groups don't like this, it seems to function very well.

Even so, meddling with copyright law is a blunt instrument to achieve change and puts the cart before the horse. That's because the exclusivity right is a commercial incentive; if you remove the incentive, and increase the risk of going to market with intangible rights, you will probably get less commerce. Large IP-based businesses who don't like the IP regime in a territory can afford to go offshore, or not do business in Europe at all. The losers are invariably European individuals, who suffer twice: they lose protection over their own words and images, becoming second class global citizens, and other pats of the world get innovative new services.

For their part, member states still guard their ability to set their own law fiercely when it comes to cultural policy. For example, French copyright law evolved from a different philosophical basis to the utilitarian English law. For the French, authorship is sacred: the moral rights of the author to decide how their creations are used (not in a derogatory way, for example) are a French invention, and so became part of European law. This was clumsily grafted into UK law and doesn't exist in the USA at all.

But, as Tierney points out, Reda's changes torpedo moral rights.

"Reda wants the caricature exception to apply regardless of the use. So you can use a parody of a Marmite advertisement to help advertise the BNP. It's unhelpful to people to undermine the intellectual integrity of their own work.

Reda's Berne-reinterpretation suggestion "reflects a real naivety", according to Tierney. If Europe legislated a weakening of the "Hippocratic oath", that do-no-harm Three Step Test, World Intellectual Property Organisation members would retaliate.

"What would happen is the WIPO says you stick to it, or leave WIPO. The USA or China would probably raise it, as Europe would be failing to protect the rights of its creators."

When Barnier looked at European copyright law his litmus test was whether it would stimulate licensing. Very little in Reda's report needs to be achieved by hacking away at the law, and everything can be achieved by licensing.

Meet "Civil Society" - the people you didn't vote for

The uniquely European problem, however, is that the EU has funded a large Greek chorus of activists - "civil society". Which it has great difficulty defining". But it's committed to consulting these groups before it does anything; incoming EC commissioners had to abase themselves before The Great Unelected. Many of these outfits are reliant on the EU itself for much of their funding. For example, EDRi, a digital outfit that lobbies against copyright: they're reliant on the EC for a substantial chunk of their income. According to its most recent “transparency report" only two per cent of this "grassroots" organisation's funding comes from actual individual members.

The European institutions already have a "democratic deficit", with voters flocking to Eurosceptic parties. When the EU threatens to remove copyright protections from ordinary people posting to Instagram or Flickr because it's in thrall to fringe lobbyists, it's only likely to weaken its mandate even further. ®