EP Hearing "Copyright and Intellectual Property in the Digital Age"

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The Socialists and Democrats Group in the European Parliament held a hearing
on Copyright and Intellectual Property in the Digital Age” in the European
Parliament (EP) on 29 and 30 June 2011. The event was organised in order to
permit a balanced and calm discussion ahead of the launch of a range of
intellectual property proposals from the European Commission over the coming
months. The event was chaired by Maria Badia i Cutchet MEP (Spain) and Luigi
Berlinguer (Italy) and was well attended by parliamentarians.

The first speaker was Malcolm Hutty from the European ISP Association
(EuroISPA). He expressed concern not just at the amount of copyright
infringements, but also at the fact that the legal framework has led to a
whole generation growing up with a lack of respect for the law. He argued
against repressive measures such as “three strikes” and blocking/filtering –
both of which are contrary to existing policy priorities such as promoting
access and consumer protection. He called for a move away from
repression-by-default and towards measures to create respect for the law –
and a more respectable law which allows reasonable exceptions, reasonable
pricing and reasonable innovation. He used an example a DVD rental
service which allowed online streaming of the product, using exactly the
same payment model for rightholders as an offline DVD rental service but
which was nonetheless objected to by rightholder groups simply because it
was new.

He was followed by Jean Bergevin, head of the “fight against counterfeiting
and piracy” unit of DG Markt of the European Commission. He stressed the
global, fast-moving nature of the Internet, which is an integral part of all
content distribution and which offers key opportunities to exploit niche
markets, particularly thorough the simplification of the supply chain. He
questioned whether there has been enough innovation and whether the
cross-border delivery of content is matching the increased mobility and
linguistic skills of citizens. He stressed the obligation under the Lisbon
Treaty to ensure that any proposals fully respect the Charter of Fundamental
Rights. He said that any new proposals must ensure that supply of content is
maximised and gave the examples of the proposals of the Commission on orphan
works, collective rights management and cross-border licensing as
initiatives aiming to achieve this goal. Regarding the IPR Enforcement
Directive, the aim should be to ensure that all rightsholders, however
small, can enforce their rights. He said that existing business models are
threatened and this is causing resistance. On the other hand, consumers need
to move away from the concept of “free,” although affordable access is
necessary. He concluded by stating that a political will for modernisation
was necessary.

The final presentation on the first day was from the Spanish academic
Enrique Dans, who had a stunning presentation on the need to update
thinking on intellectual property and access to audiovisual material. He
described the resistance to every form of new content distribution
throughout history, from the printing press to sheet music to audio
cassettes to video cassette recorders – except CDs, which were cheaper to
produce and could be sold for higher prices. He said there is no way to stop
technology and technology is undermining industries in the middle of the
distribution chain. Physical copies are no longer needed , marketing
happens via social media, talent is found increasingly via viral means. As a
result, the middlemen are no longer adding value and are demanding
subsidies, such as via equipment levies – in Spain the levy on a CD is
higher than the cost of the CD itself. Consumers are tired of being treated
as criminals for sharing culture. Copyright is a dead horse – it is time to
stop trying to legislate the horse back to life. “Piracy” is not lowest
where there is the most enforcement – it is lowest where legal content is
the most easily available.

On the second day, the discussion was divided into two sections. The first
was “jobs and intellectual property – the way forward” while the second was
“the role of the legislator – in defence of what? Protection of intellectual
property, privacy and data”

A. Jobs and intellectual property

Johannes Studinger from the UNI MEI trade union, representing a wide range
of workers, mentioned the history of the Socialists and Democrats in
supporting workers and trades unions. He described how trades unions
negotiate collective agreements with producers, which are important due to
the instability of work in the media sector. Such agreements provide
stability for workers and guarantee remuneration where works are re-used.
This money is also used for health payments. Enforcement is important
because if there are infringements, these collective agreements are less
easy to sustain.

Smari McCarthy from the International Modern Media Initiative (IMMI)
said that copyright was becoming a primary tool for censorship but it was a
very contentious issue and the need was to get to a better model that
benefited everybody. He said that the phrase “intellectual property” was a
misnomer for a temporary property right. It is also incorrect to argue that
copyright is needed to ensure creation – creators only receive a tiny
percentage of income, the record companies get the vast majority of the
revenue.

This approach is leading creators to turn to creative commons models and
earning money from associated merchandising. Vested interests, particularly
with regard to collective licensing, are holding back development. In the
last decade, we have come up with more and more enforcement that creates a
chilling effect and extra-judicial powers for intermediaries. These measures
are circumvented and ineffective. We need to focus on promoting education
and creation in policy development.

B. The role of the legislator

Christophe Geiger from the University of Strasbourg said that law was about
social order and this was achieved by a balance between competing interests.
This balance is what legislators must achieve. Citizens use and reuse
cultural material and access to culture must be taken into account. We need
to ensure just payment for creators and to ensure access and reuse. What is
a “balance”? We need to focus on measures to increase access and we need to
make sure that these are efficient – an observatory body for access along
the lines of the observatory for counterfeiting would be good. Allowing
access does not mean that access should be free. Legal use of works should
also be looked at, with single window systems – it makes no sense to have 27
different licensing systems. Exceptions and limitations are key tools for
access, particular for non-commercial uses, such as research and education.
We also need an exception for creative purposes. We need to consider an EU
copyright regime – copyright is not just a legal issue, it is a societal
issue. When rules are not accepted, it is difficult to apply them. We need
to get back to basics.

Joe McNamee from European Digital Rights said that it was important for
legislators to learn from successes of the past. Legislators did not listen
to the objections of old telecoms monopolies and forced them to liberalise.
Despite their objections, this turned out to be hugely beneficial for them.
Legislators did not listen to the music industry that complained that audio
cassettes were “killing the music industry” or that video cassette recorders
were as dangerous for the film industry as the Boston strangler was for
women home alone. If legislators had listened, they would have robbed the
film industry of subsequent revenues from video sales and rentals. It is
normal for comfortable old and rich industries to resist change, even
beneficial change, and it is the duty of legislators not to be swayed by
their lobbying. On the other hand, it is also important to use legislation,
where this is proven necessary, rather than outsourcing the powers of the
state to private entities. It is precisely for this reason that the European
Convention on Human Rights, the European Charter of Fundamental Rights and
the International Covenant on Civil and Political Rights require
restrictions on fundamental rights to be based on law. The trend towards
entrusting regulation of freedom of communication to internet intermediaries
is undemocratic and dangerous and must be opposed by legislators.

Enrique Dans
http://www.enriquedans.com/

University of Strasbourg Centre for IP Studies
http://www.ceipi.edu/index.php?id=5408&L=2

Smari McCarthy talk – International Modern Media Initiative (30.06.2011)
http://www.edri.org/files/McCarthy_copyright_ep_talk.pdf

Europe-wide copyright key for authors and consumers
http://www.socialistsanddemocrats.eu/gpes/public/detail.htm?id=135904&request_locale=EN&section=NER&category=NEWS

EDRi documents on IPR
Self-regulation study
http://www.edri.org/files/EDRI_selfreg_final_20110124.pdf

IPR Enforcement consultation response
http://www.edri.org/files/edri_ipred_110331.pdf

E-Commerce Directive consultation response
http://www.edri.org/files/EDRi_ecommerceresponse_101105.pdf

Content online consultation response
http://www.edri.org/files/edri_content_online_consultation100104.pdf

(Contribution by Joe McNamee – EDRi)