The European Commission regularly makes use of surveys to gather a wide array of opinions from various stakeholders. But when the result does not meet the preconceived view, its relevance will simply be denied, as it seems.
Successful public consultation
From 23 March until 15 June 2016, the European Commission held its public consultation on the role of publishers in the copyright value chain and on the 'panorama exception'. It included 16 questions on the role of (press) publishers and the possible impact of a new neighbouring right for them. Hereby, the Commission wanted to scrutinize the necessity of such an intervention in the different publishing sectors.
Everybody, from individual persons to organisations, was welcomed to take the survey. In the end, a total of 6203 replies were received with 2791 of them gathered by the #FixCopyright campaign that was initiated by Copyright for Creativity. Coming from almost every Member State of the EU, 3957 participants answered the questions on publishers. The replies can be looked up on the website of the European Commission.
For a quick overview on the results of the consultation, the Commission has issued a synopsis report on the publishers section that summarizes the replies and assorts them depending on the specific category of respondent. According to the report, "[t]he majority of consumer, users and their organisations expressed reservations as regards the possible introduction of a neighbouring right." The ability to link, share and access freely available content was seen threatened. The already existing publisher's rights in Germany and Spain were "often quoted as negative examples" and some consumer expected the prices for cultural products to rise.
Mixed reception by consumer organisations?
However, the report also states that "some consumer organisations recognised that a neighbouring right could have a positive impact on the quality of press content and in terms of media pluralism." This is surprising, given that such a bold statement has only been publicly made by those publishers who for several years now aggressively lobby for their new right.
MEP Nessa Childers (S&D, Ireland) seems to have thought the same and thus prepared two questions for the Commission. The first one is:
Could the Commission indicate what share of consumer organisations’ submissions recognised this potential positive impact?
Now we finally have the answer by the current European Commissioner for Digital Single Market and Vice President of the European Commission Andrus Ansip. He explains that the abovementioned statement belongs to The European Consumer Organisation (BEUC) which currently represents 43 consumer organisations from 31 European countries. Ansip says that BEUC "expressed overall concern as to the possible introduction of a publisher right but also mentioned the stimulation of content production as a possible argument in favour of such introduction."
Although BEUC is an umbrella group for consumer organisations all over Europe, it does not represent all of its members in this case. At least the Federation of German Consumer Organisations (vzbv) described the Commission's plans for a copyright reform as a "big disappointment" that worked through the publishers' wish list. Therefore, the synopsis phrase "some consumer organisations" has to be treated with high caution.
Opposing opinion = no relevance
MEP Childers second question is:
Could the Commission further indicate how many submissions from such organisations expressed reservations or concerns about the introduction of the neighbouring right, as well as the share of submissions from ‘users/consumers/citizens’ that expressed reservations or concerns about this right?
What Ansip replies is a strong statement against the introduction of a new publisher's right: "around 94% of individual consumers and 81% of the organisations who responded indicated a potential negative impact." Although a more detailed breakdown of the numbers would have been helpful and interesting (What exactly is meant by "the organisations"?), the result of the public consultation clearly is that the vast majority of participants rejects the Commission's plan.
But Ansip is obviously not happy with this outcome:
Public consultations are for the Commission an essential tool to inform its policy-making. However, the Commission adopts a cautious approach to quantitative data, as responses to consultations are generally not statistically representatives of a target population.
He simply denies the consultation its relevance although - or rather because - the almost three months long process aggregated several thousand voices against a publisher's right. So this has all been basically for nothing because the Commission's pre-established view has not been confirmed. What makes this even more absurd is the fact that the Commission always asks its critics for numbers and empirical findings. But when confronted with its own findings, they shall not be worth anything?
What remains is the question where the Commission has hidden the statistically representative survey that endorses the introduction of a new neighbouring right for publishers. Or do they really just fulfil the publishers' wishes without looking left and right?