EP Hearing "Copyright and Intellectual Property in the Digital Age"
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Deutsch: Hearing im EU-Parlament: "Urheberrecht und Geistiges Eigentum im ...
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.
University of Strasbourg Centre for IP Studies
Smari McCarthy talk - International Modern Media Initiative (30.06.2011)
Europe-wide copyright key for authors and consumers
EDRi documents on IPR
IPR Enforcement consultation response
E-Commerce Directive consultation response
Content online consultation response
(Contribution by Joe McNamee - EDRi)