Fear And Loathing On The Copyright Trail

Michael Hedges November 24, 2011 Follow on Twitter

Internet technologies have upset business models to the extent that punishing is preferable to creating. While the public loves this orgy of innovation, rights holders can’t see the forest for the ICTs. Flexibility, says the boss, should be part of the plan.

In the course of a few hundred words delivered to a forum on culture in France (November 19), European Commission (EC) Vice President for the Digital Agenda Neelie Kroes turned all arguments about copyright on their little heads. Current laws, she said, are seen as “a tool to punish and withhold” rather than “to recognize and reward.” And, most importantly, they aren’t working.

It’s worth noting that Commissioner Kroes has a mandate to promote digital technologies for economic, social and cultural gain. She trained as an economist before embarking on a political career through Dutch government and on to the EC. She’s a market-liberal pragmatist. And she’s not shy: ask Bill Gates.

Copyright law has become the major stumbling block to information and communication technology (ICT) development. Major international treaties on copyright are now more than ten years old, the most recent simply attempted to plug obvious holes in definitions first set deep in the last century or earlier. Attempts at major international revisions have failed leaving to politicians in individual countries the task of appeasing the various stakeholders. The result has been stupefying.

“We need to keep on fighting against piracy,” she offered, “but legal enforceability is becoming increasingly difficult; the millions of dollars invested trying to enforce copyright have not stemmed piracy.” It was a not-so-subtle dig at American movie and music rights holders – spending “dollars” – pursuing, anecdotically speaking, grandmothers through the courts for downloading a couple of tunes. This is the stuff people hate about the word copyright.

Opening the Forum d'Avignon (November 18) was French President Nicolas Sarkozy, the acknowledged pioneer of punitive copyright enforcement. The Hadopi Law he championed – with the infamous three-strikes provision later adopted in the UK – has cut internet piracy of music and video in France by 35%, he said. After much dithering the Hadopi Law came into force two and a half years ago. The idea behind the three-strikes sanction, fully endorsed by the music and movie industries, came from a Culture Ministry task force led by then retailer FNAC CEO Denis Olivennes, who broadcaster Lagardère Active named CEO earlier this month. It’s a small world.

Of course downloading is now very old school, streaming being much more popular. Keeping with the times President Sarkozy gave broad hints that the Hadopi Law could be upgraded to include penalties for watching streamed video, currently not illegal in France. “I am well aware that technology is evolving,” he said. “If technology allows us a new development, we will adapt the law.”

Monsieur le President also took the opportunity of a cultural soirée to announce the formation of a National Music Council (CNM) to aid French music artists similar to the National Cinema Council. Funding for the CNM would come from tax on internet subscriptions. French telecoms – all major ISPs - saw this coming and published an open letter (Le Monde November 11) warning of the risk as “French players…continue to run with shoes of lead, heavier more and more with each new tax, while the government questions their weakness in international competition.”  Culture of the big industrial kind continues to trump technology in France.

Taxing telecoms to raise money for other purposes has come around before. In March Commissioner Kroes referred both France and Spain to the European Court of Justice (ECJ) over schemes to support public broadcasting with taxes on telecoms. The proposed taxes would violate EC rules by allocating the revenues to purposes other than administrative and regulatory costs.

But rules and taxes were peripheral to Commissioner Kroes’ main point: it’s ideas that count. “There are many new ideas out there,” said observed, “like extended collective licensing as practiced in Scandinavia, or other ideas that seek to both legitimize and monetize certain uses of works. Are these ideas the right ones to achieve our goals? I don't know. But too often we can't even try them out because of some old set of rules made for a different age…So new ideas, which could benefit artists, are killed before they can show their merit, dead on arrival. This needs to change.”

Commissioner Kroes sympathized with the cultural creators, more so than the industrial intermediaries. “The life of an artist is tough: the crisis has made it tougher,” she concluded. “Let's get back to basics, and deliver a system of recognition and reward that puts artists and creators at its heart.”

Who, indeed, “feeds the artists?”

“I see how some European stakeholders see with horror the arrival of Netflix, or the expansion of iTunes. We need to react, not to be paralyzed by fear. Let's take chances.”

Risk – taking chances – may be second nature in the “anglo” world but European law – if not culture – is quite risk averse. The genius of Silicon Valley is reward for failure, a concept lost elsewhere. Commissioner Kroes seems to see that this must change.

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