7C. View from the
European Commission
Moderator: Ted Shapiro, Senior Vice President, General
Counsel and Deputy Managing Director, EMEA, Motion Picture Association,
Brussels
Maria Martin-Prat, Head of Unit – Copyright, DG Internal
Market & Services, European Commission, Brussels
We harmonize to improve the rewards to creators, which is
important to keep in mind. Goal: make
clear that territorial rights are not equal to territorial licensing. There should be more territorial licenses,
but that doesn’t mean they should be from pan-European services. Locally targeted services can make sense,
especially for ad-funded services.
Difficult to explain to consumers, though, that when
provider IDs consumer as from being in a different member state, the consumer
is denied access or redirected. Even if
it’s a minority who wants cross border access, it’s a significant minority;
also it’s inconsistent with cross-border treatment in the physical world.
Mass digitization also plays into these issues. Voluntary sector-specific agreements are
preferable. Cross-border extended
collective licensing represents uncharted waters.
ECJ is becoming more active in copyright. 12 rulings since the last Fordham conference,
and 9 more pending. Originality,
territoriality, private copying levies, communication to the public, etc. Communication to the public and similar
concepts will never fully be defined by statute, always require judicial
review. Sometimes there are problems
when the ECJ combines concepts from different directives. The court is not taking over, though.
Possible copyright code—but there are pressing problems that
need to be taken care of now. (1)
Private copying. Not talking about
levies, but about copying itself; private copying levies are a never-ending
struggle for the Commission. The system
isn’t working well. Has to go beyond
levies to recognize reproduction right’s change in the digital
environment. Collection of private
copying levy is also a difficult matter, but we need to clarify whether a copy
made from an illegal source is a private copy, or a copy made from a service
licensed by the rightsholder (who has been compensated for the expectation that
this will happen). (2) Beyond
facilitating licensing, do we need anything else like a making available right;
(3) limitations and exceptions—how can we make these work in the internal
market?
Shapiro: Multiple questions: Extended collective licensing
seems to work well in some Nordic countries, but would it work well in
Italy? (Not clear to me what exactly he
thinks is wrong/different with Italy.)
New right of intermediaries to make money off of other people’s stuff is
an issue. Hobbling of the making
available right if subject to dreaded country of origin rule. (I am not sure
how much he’s joking here.) Introducing
the next speaker, he questions an Irish interpretation of Irish law on the
Pirate Bay, which is now being changed by legislation: Site blocking decisions
have been handed down in a number of countries, and he was on the internet this
morning and it wasn’t broken. (Okay,
that wins best non sequitur.)
Hon. Mr. Justice Peter Charleton, Justice, High Court of
Ireland, Dublin
Nobody objects to better collection, or harmonization in
general. The row that started with the
Pirate Bay case will probably come back to him.
But the whole nature of copyright may have changed. Copyright had been the exclusive right to
reproduce. But now we are in a world of licensing: you license the broadcast.
What happens when someone shows the broadcast in a hotel room? You no longer need advanced reproduction
technologies. Add in the vast number of
works actually available online:
there are proponents of the idea that copyright is dead. There always were entitlements to read a book
and give it to someone else in the past, but you can’t do that now (at least
the copyright owner claims you can’t).
9 different directives: what kind of harmonization is that? It may be ok to have different laws if the
laws are clear, but if we want to standardize it we need to focus on the
content, not the harmonization.
As copyright is changing, so is the nature of the
people. Europeans don’t recognize the
change on the ground in beliefs about copyright and copying. If millions of people want a different form
of copyright, that makes a difference.
Other stakeholders: rightsholders and ISPs. Are ISPs now more powerful? The influence of the people and ISPs together
is becoming dominant; is copyright an actual right at this point?
The resolution of these issues is not for a judge in Ireland
or the ECJ. It is for politicians. The sooner they resolve them, the easier my
job will be.
Shapiro: introducing the next speaker, asked about extended
collective licensing (ECL) and opt-outs, and the like.
Jerker Ryden, Senior Legal Adviser, National Library of
Sweden, Stockholm
ECL has been in place for 50 years for students, etc. We are now discussing slightly different matters. It depends on business models not in place. Usually business ventures have an idea how
they’ll be financed. Gov’t libraries
have to ask how they will finance digitization, especially with a goal of
cross-border visibility. Maybe the Greeks want Swedish translations, but it
seems less likely. We have a public-private partnership with a big publisher to
digitize millions of works. Right now we
want to digitize for preservation; challenges include developing metadata that
can be delivered to rightsholders which will help negotiating the license
fee. Taxpayer/consumer paying the
license fee. A conversation he had: Why
isn’t the BBC making Dr. Who available worldwide? Because the taxpayer wouldn’t pay for it—the BBC
licenses to broadcasters instead.
Filesharing: can ECL be used? Might not be able to find who has the
rights. Libraries need legal certainty,
and orphan works etc. don’t provide sufficient certainty. Consumers won’t turn away from illegal
filesharing unless they are provided with legal certainty as well.
Shapiro: does buying a song from iTunes not provide legal
certainty?
Ryden: it does, but that system doesn’t work if you’re
making intermediate uses (an institution trying to provide something to an end
user). ECL in those cases is relevant. Also potentially for crossborder issues.
Martin-Prat: Outside the UK, Dr. Who is 60 Euros a year. For the music, got a PRS license for
multiterritory rights, and reciprocal representation agreements. So some licensing is happening. ECL: you need a society that is
representative in terms of rights it’s authorized to license as well as
representative of rights owners. So far,
ECL has always been at the national level—cable retransmission, educational
licensing. License the whole repertoire, not just national works. Now imagine this in each of 27 member states
with whole repertoire and cross-border licenses. Country of first publication is one way of
addressing the issue—start with your national heritage for mass digitization
projects. Can’t ask rightsholders to pay
for digitization (where I think she means by “pay for” that they shouldn’t not
get paid).
Q: the Commission announced a copyright review—is there a
specific timeline?
Martin-Prat: the assessment of the 2001 directive, with
specific attention to exceptions and mechanical rights is something we’ve
started—economic studies, etc. Not before next year. Next thing on the table will be draft
directive on collective rights management.
After that maybe private copying.
Q: big debate over copyright directive was DRM—it was
supposed to kill creativity, but 10 years later they’re at the heart of
business models. (Ok! I hope no one tells him about mp3s.) DRM was also supposed to destroy collecting
societies, but it hasn’t. Does the
existence of established revenue streams create an obstacle to Commission
reform? E.g., private copying revenue,
collective licensing revenue, jealously protected by their guardians.
Martin-Prat: Those revenues are not the revenues of the guardians
but of the rightsholders. The less time they spend in a collecting society’s
hands, the better. So that shouldn’t be
a menace if we focus on allocation.
Q from rep of Swedish publishing house: is financing a
problem? We get paid, it seems smooth.
Ryder: it’s the financing of the digitization itself. Clearing rights is fine, but we have to pay
the fee. We want to make it available
throughout Europe but who will pay the fee?
Q: is that even desirable?
Martin-Prat: BBC granted a pan-European license because it
holds all the rights and, when it needed a license for the music, got a
multiterritorial license.
Ryder: right, but the Swedish consumer pays that; who will
pay to access British culture preserved by the British libraries? We usually use licenses to finance copyright
endeavors and it’s not clear who will pay.
Knopf: ECL is sneaking its way into Canada by stealth.
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