Boiling The Copyright Oil

Michael Hedges November 9, 2010 - Follow on Twitter

Nothing hastens policy makers’ blood more than causes on principle. The bigger, more complicated the better because small stuff is so irritating. Copyright, privacy and net neutrality all boil together in these digital times. Some tough old boars might get stewed.

European Commission Vice President for the Digital Agenda Neelie Kroes is taking on entrenched forces to bring the plenty offered by digital technology to one and all. “All revolutions reveal, in a new and less favorable light, the privileges of the gatekeepers of the 'Ancien Régime',” she said at the Forum d'Avignon (November 5). “It is no different in the case of the internet revolution, which is unveiling the unsustainable position of certain content gatekeepers and intermediaries. No historically entrenched position guarantees the survival of any cultural intermediary. Like it or not, content gatekeepers risk being sidelined if they do not adapt to the needs of both creators and consumers of cultural goods.”

Commissioner Kroes’ speech was aimed at the culture lobby, not as powerful as some but quite formidable. Copyright is a particular digital vexation. The order must change, she said, because “the system has ended up giving a more prominent role to intermediaries than to artists.”

“It may suit some vested interests to avoid a debate, or to frame the debate on copyright in moralistic terms that merely demonize millions of citizens. But that is not a sustainable approach. We need this debate because we need action to promote a legal digital single market in Europe.”

It’s a tall order, which Commissioner Kroes admitted. “Getting 27 States in one market to co-operate is not one day's work.” Overhauling European rules on transfrontier television and emerging digital media required nearly a decade. Even with commitments within the EU Member States on digital television transition and updated advertising rules, nearly half wait still for harmonious national legislation. 

To be sure, individual governments have taken on parts of the copyright dilemma. The chosen path, to “demonize millions of citizens”, threatens illegal downloaders – legal definition being porous - with losing internet access. The French government started that ball rolling with its “three strikes” law. The UK quickly followed. For the music and film industries as well as newspaper publishers the solution to copyright protection – piracy – puts all burden on consumers. European consumers have responded by avoiding e-commerce.

“In Europe there is a single market for downloading music and film,” said Commissioner Kroes at a business leaders conference in May. “The problem is that it's illegal.”

Start-up digital service providers, not limited to bitTorrent download sites like Pirate Bay, are finding themselves in court. The French download-to-record video service Wizzgo was forced out of business following a legal battle with television broadcasters. The French courts ruled copying video for personal use an “act of counterfeiting,” therefore illegal. The company lasted six months.

“The controversies surrounding personal video recorders,” said a European Audiovisual Observatory (EAO) report (October 27), “illustrate with respect to all new services how different national ways of addressing issues can be.” The Council of Europe (CoE), which supports the EAO, will meet to debate copyright protection for broadcasters. Essentially, the CoE is taking up the World Intellectual Property Organization (WIPO) treaty on broadcast rights that died after 12 years of negotiations. Death was caused by differences among countries over competition issues, national copyright regimes, freedom of expression and general fear of the internet.

The European Publishers Council (EPC), representing major publishers, expressed its “big idea” to the European Commission on solving the digital copyright problem. The EPC proposes a digital copyright symbol, readable on any “machine,” to “complete the transaction,” said a statement by EPC’s Angela Mills Wade. That “transaction” appears to mean connecting publishers directly to consumers’ credit cards. The EPC’s “big idea” would “identify the content being used and who controls the rights in it.” One persons big idea is another persons big brother.

Blending culture and commerce, Commissioner Kroes brought up the Europeana search platform project, designed to capture art, music and literature from Europe’s major cultural repositories as an example of another “frustrated initiatives.” 

“Europeana could be condemned to be a niche player rather than a world leader if it cannot be granted licenses and share the full catalogue of written and audio-visual material held in our cultural institutions. And it will be frustrated in that ambition if it cannot team up with commercial partners on terms that are consistent with public policy and with the interests of right-holders. And all sorts of other possible initiatives, public and private, will also be frustrated.”

Commissioner Kroes, however, wants to put the horse before the cart, so to speak. “Once we have a solution for copyright, then it will be easier to attack piracy. If you solve the real problem, then there will be less piracy.”

Conventional wisdom says rules harmonized across the European Union will solve the copyright, privacy, business and culture issues and serve as a benchmark for the rest of the universe. If all this confusion arose because of the internet, then it is the problem. “Just like cinema did not kill theatre, nor did television kill radio. The internet won't kill any other media either,” said Commissioner Kroes. Killing the internet, for some, is still an option.

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