The table below summarises the results of our ex post evaluation on the InfoSoc Directive and its related instruments and is based on four key criteria, namely effectiveness, efficiency, coherence and relevance. Table 5 provides a score from • (lowest) to ••••• (highest) to each evaluation criterion, while the cell on the right end of the table includes a brief illustration of the motivation behind the decision to attribute a specific score.
Table 5. Summary ex-post evaluation
Criterion Score
(1 to 5) Motivation
Effectiveness ••
Of the four main operational goals pursued by the InfoSoc, only one can be said to have been fully achieved (alignment with international legislation), and even in that case there are exceptions and divergences (e.g. on the three-step test, on the ‘new public’ criterion for hyperlinking).
The goal to strengthen copyright and broaden its scope fell short of identifying a suitable enforcement framework, and ended up colliding with equally important policy principles.
The specific goal to achieve a fully integrated Internal Market was not fully pursued by the InfoSoc, and this is reflected in the many
Criterion Score
(1 to 5) Motivation
areas of legislation in which no harmonisation was achieved, from the basic definition of the right (e.g. standard of originality) to the adoption and interpretation of exceptions and limitations.
Competitiveness-related goals were hampered by the rigidity and uncertainty generated by the system, especially for what concerns exceptions on text and data mining and the overall framework for UGC.
The goal of achieving a fair remuneration and compensation for authors and performers was stated but not actively pursued by any specific provision in the InfoSoc Directive and also in most related legislation.
Efficiency •
Not only the copyright framework is inefficient because it does not achieve its goals in the first place (i.e. lack of intended benefits means very low cost-effectiveness). The framework generates costs that can exert an inhibiting factor for content production, distribution and creation. Specific sources of inefficiency include transaction costs (e.g. having to negotiate licences under 28 different legal regimes) and fragmentation costs (e.g. divergences in the scope of legislation and the failure to implement a consistent set of copyright exceptions and limitations, at least for those that have a significant impact on cross- border activities and create inefficiencies in particular in the case of teaching and research, but also for the viability of new products and services such as social networks, streaming services, ‘online’ libraries, etc.).
More generally, inefficiency takes the form of:
- Productive inefficiency. Current legislation increases costs for content producers and distributors, and limits availability of content for end-users. Inefficient enforcement limits incentives to produce and distribute new valuable content. Current rules do not incentivise users who would make use of such content to create UGC or to engage in text and data mining based activities.
- Allocative inefficiency. The foregone consumer and producer surplus generated by lack of availability of content and by widespread copyright infringement, respectively, constitute reductions of allocative efficiency that reverberate on the value of digital content available online, and hence also on the value of Internet access for end-users.
- Dynamic inefficiency. Besides hampering production and consumption in the first place, the reduction in quantity and quality of content available to end-users reverberates on the competitiveness of Europe’s Internet markets as a whole. For example, it can lead to lower demand for Internet connectivity, and could therefore end up stifling incentives to deploy broadband networks.
Some instruments, such as the Directives on Orphan Works and Collective Rights Management, are too recent to evaluate in full. Coherence ••• While the InfoSoc has achieved an unprecedented level of coherence
Criterion Score
(1 to 5) Motivation
in the European Union’s legislation on copyright and has been complemented by additional instruments (e.g. Orphan Works and Collective Rights Management Directives), several problems remain. In terms of internal coherence, gaps and sources of fragmentation are numerous and range from the absence of common basic definitions to the wide variety of practices in the areas of exceptions and limitations, to the even wider variety of enforcement approaches. Problems have emerged over time also in terms of external coherence: the enforcement provisions contained in the InfoSoc Directive and IPRED have gradually collided with other, equally important EU legal provisions, e.g. the protection of fundamental rights (privacy, freedom to run a business) and the ‘mere conduit’ principles contained in the e- Commerce Directive.
Relevance ••
Despite its overall importance and relevance as a domain of legislation in the field of content and media, the EU copyright framework is increasingly outdated in light of technological developments. Exceptions and limitations are increasingly misaligned with technological developments, and potentially limit the development of welfare-enhancing uses of information. Enforcement modes foreseen in the InfoSoc Directive and IPRED have been largely surpassed by technology, and countries hardly rely on civil litigation today to enforce copyright laws. Most notably, the absence of certainty as regards a number of exceptions, including the one on text and data mining, is an important gap in the EU acquis on copyright. In summary, the relevance of the overall approach adopted by the InfoSoc Directive and its subsequent legislation would deserve a careful, but urgent, update.
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