Fordham IP: Copyright: a view from the EU

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.