One of the more extraordinary transformations in the last couple of decades has been copyright's evolution from a rather dry and dusty subject of interest only to a specialised class of lawyers to something that affects everyone every second of their lives online. Indeed, copyright is now arguably among the most important laws around today, and is having a major impact on a wide range of issues – the defeat of ACTA, nominally a treaty about trade, is perhaps the most dramatic example of this.
All this sound and fury has percolated up to the highest echelons of the European Commission, which is holding a special meeting tomorrow to discuss copyright. The background document for that is available (but only as a Microsoft Word file - so much for supporting true open standards.)
It's well worth reading to gain an insight into the current thinking of the European Commission and its advisers. Here's its basic premise:
Copyright is the universal means to reward creation. There is, however, an active debate about whether the copyright framework remains fit for purpose in the digital context.
While the second part is certainly true, the first part isn't. One of the most important lessons that open source and its offshoots have provided is that creation does not require monetary reward, which means that the kind of control provided by copyright is not necessary: people are willing to create and share for its own sake and for non-monetary rewards such as peer esteem. Unfortunately, this blind belief in the necessity of copyright to power creativity rather vitiates the rest of the document, but there are a few glimmers of deeper understanding, as here:
Citizens increasingly voice concerns that copyright laws hinder what they view as their freedom to access and use content. Experience shows that many of them would rather pay for legal offers than use illegal content, but they often do not know whether what they download, stream or share is illegal. Businesses increasingly argue that the current copyright model is a barrier to developing the business models they consider necessary for the digital economy. These consumers and businesses agree, for different reasons, that copyright rules have to be made more flexible and their views were a major factor in the rejection of ACTA. The growth of Pirate Parties in some Member States is another indicator of this trend.
It's nice to see the European Commission's advisers taking note of the fact that the public is generally happy to pay for legal services – the problem is that for too long the copyright industries have simply refused to offer them at anywhere near reasonably prices, if at all. Also good to see the reference to copyright being a barrier to new business models in the digital world. Finally, it's rather nice to see both ACTA and Pirate Parties receive some recognition here as new and important factors.
On the other hand, it's a pity that the public still gets such short shrift. There's a mention a couple of times in the context of the "value chain" (a revealing phrase in itself):
1. Content includes, for example, music, films, television programmes, games, news, books and magazines. Internet content is increasingly ‘user generated' - blogs, tweet messages, videos, and photographs – and is not necessarily commercial in nature.
4. The end-user: there were more than 350 million internet users in 2011 in the EU. The main uses are reading or downloading online newspapers and news, playing or downloading games, images, films or music, software, uploading self-created content, and using peer-to-peer files sharing for exchanging movies and music. Peer to peer usually implies allowing other users to access content held on one or several home computers.
More positive is the recognition that new business models are possible in the digital age:
The internet has made it easier for content providers to market their products without going through the traditional intermediaries. For instance, some music artists have chosen to put their music online for free (e.g. hosted by You Tube) and to sell their albums and other products directly from their own website. At the same time new digital content intermediaries have emerged which play an increasing role in helping content providers to monetise their work.
Unfortunately, there's a still an obsession with enforcement:
The development of the digital economy is also creating new challenges in the area of enforcement. Practitioners are confronting the question of how to deal with file-sharing platforms and other forms of unauthorized copying, given that the demand for such services and copies is high.
That's despite the fact that there is mounting evidence that people who share files buy spend more money on cultural goods overall. Here, for example, is a comment from the European Commission's own Joint Research Centre, which recently produced a report entitled "Statistical, Ecosystems and Competitiveness Analysis of the Media and Content Industries." It quotes some research from the Netherlands:
Although it is difficult to understand the true impact of illegal file sharing on the industry, it is clear that every file downloaded does not result automatically in one less CD or DVD sold. TNO conducted a statistical analysis and calculated the effect of illegal file sharing on the music industry for the Dutch market through a welfare-theoretical approach. They calculated the substitution ratio for the Dutch music industry, and estimated a substitution ratio of at most 5-7%. In other words: for every 15-20 downloads one track less is sold. However, the economic implications of file sharing for the level of welfare in the Netherlands were found to be strongly positive in the short and long terms, because downloaders buy the same amount of music as non-downloaders, and more games and DVDs than non-downloaders. Moreover, downloaders go to more concerts and buy more merchandise (TNO, 2009). It should however be noted that because of the fact that this study is focused on a single country, its conclusions can not be generalized to the EU as a whole without further investigation.
That's just the latest in a string of similar results that suggest enforcement is not just a waste of effort, but counterproductive.
As the European Commission's briefing document notes, one of the central questions for the updating of copyright to take account of the new needs of the digital world is what exceptions and limitations should be introduced:
Copyright is regulated in the EU by the 2001 Information Society Directive (also known as the Copyright Directive). The principal goal of the directive was to adapt and supplement the acquis to respond to the challenges of the digital environment. To do so, it harmonizes certain aspects of copyright and related rights, and transposes international obligations based on the treaties of the World Intellectual Property Rights Organisation. To preserve a fair balance of rights and interests between right-holders and consumers, the directive also includes a number of possible exceptions and limitations. While it specifies that the list is exhaustive, the directive leaves significant flexibility to Member States for the transposition of these specific elements.
This is indeed a key area, and one that the European Union needs to get right if it wants copyright even halfway fit for the digital age. When the European Commission begin their discussions tomorrow, let's hope they don't pay any attention to a letter [.pdf] sent to them by a group of European publishers, writers and collective management organisations, which clearly doesn't want to enter the 21st century:
A policy to broaden exceptions and limitations, including for education and libraries, would jeopardise the income of authors and publishers and, consequently, have a negative impact on their competitiveness and ability to invest in innovative new products.
Note here how the huge benefit of exceptions and limitations for the public is completely ignored: all that counts is "the income of authors and publishers". This really sums up the problem with the publishing industry, and its failure to adapt to the digital world. As far as it is concerned, copyright is there simply to guarantee everyone in the industry a nice income: the idea that it is supposed to provide a fair balance between creators and the public never seems to enter their minds.
For the last 300 years, copyright has moved in only one direction: longer, wider and stronger. Because copyright is a quid pro quo, this means that the public domain has been constantly diminished over that period – the publishers and creators have always gained at the expense of the public. Now, for the first time, there is talk of actually giving something back to the public after those three centuries of losses, and the publishers and creators suddenly don't like the bargain they have benefitted from for so long. This sense of entitlement has become so reflexive they are probably not even aware of its presence.
This leads to a bizarre view of what's been happening recently in the world of the Internet and copyright:
In a fast changing world where technologies move with an unprecedented speed regulations and copyright exceptions do not have the ability to offer the required flexibility to users of copyright works
That is presumably why leading Internet companies like Google, Facebook, Twitter, Tumblr and Pinterest were all launched in the EU rather than in the US because of the latter's cumbersome and slow-moving exceptions regime based on fair use provisions. Oh, wait...
We have always been willing to find the best possible solutions to provide the broadest possible access to books and learned journals, with the objective to satisfy the widest audience of European (and other) readers.
What, like refusing to sell ebooks to libraries, for example? That's the "best possible solution" in the digital age?
That refusal of a publisher to supply the things it makes in a form that people want is emblematic of an industry that refuses to change, and that puts its own interests ahead of customers. Its just one of many reasons why the European Commission should ignore this letter and its totally one-sided view of the world.
The reason copyright is failing so dismally, and falling into such disrepute with the younger generation, is precisely because of this lack of fairness and proportionality. That's why the European Commission must push forward with broad limitations and exceptions for copyright immediately, and embark on an even deeper reform thereafter.
Update: The European Commission has issued a short statement about the outcome of that meeting. Main point:
The Commission will therefore work for a modern copyright framework that guarantees effective recognition and remuneration of rights holders in order to provide sustainable incentives for creativity, cultural diversity and innovation; opens up greater access and a wider choice of legal offers to end users; allows new business models to emerge; and contributes to combating illegal offers and piracy.
The devil will be in the details.