Copyright owners, intermediaries, consumers and European Parliamentarians came together in the library of the European Parliament on the afternoon of 30 May to debate the shortcomings of European copyright law, and to discuss how some of these shortcomings could be bridged by agreement between the stakeholders, pending longer term law reform.
The meeting was hosted by Mariette Schaake, Member of the European Parliament for the Dutch Democratic Party (D66) with the Alliance of Liberals and Democrats for Europe (ALDE), and co-organised by Consumers International, BEUC (the European Consumers' Organisation) and Copyright for Creativity.
Kostas Rossoglou, Senior Legal Officer from BEUC framed the discussion by pointing out that common consumer practices such as time, space and format shifting, copying studio photos for family, home taping, and using clips from the Web in projects or presentations, may be legal in one country, but illegal in another, and that this brings the very institution of copyright into disrepute in the digital age.
Moving on, three specific examples were debated. These took place under the "Chatham House" rules, meaning that particular statements expressed were not to be attributed to individuals. On that basis, here are some of the most interesting perspectives that were expressed during the debates:
Debate 1: There are uses of music in education that should never require payment
- The Berne Convention only regulates the economic application of authors' rights; therefore it has nothing to say about the use of copyright works in the home. The same argument could be made about the use of such works in education. Education is a public good, and artists also benefit from the exposure.
- On the other hand, the principle that creators should be recompensed for their work should be respected, and some creators might specialise in creating educational works. For example, French schools recently paid €150,000 between 60,000 educational institutions - only a nominal amount per institution.
- Yet it could equally be said that it is not worth collecting such a nominal fee, and that other public goods such as access to museums is provided to the public for free. Many collecting societies have chosen not to collect for the use of works at funerals, and recently the Spanish society has exempted schools too.
- Whilst the boundaries of copyright may be unclear (for example, what qualifies as educational?), this does not mean we should reduce the scope of copyright. The act of creation is not itself free, and if we do not put a price on its fruits, this may lead to a diminution of the perceived value of culture.
Debate 2: Users and creators must be able to use copyrighted material to produce a new compound work for non-commercial purposes without needing a licence
- An entire artform, the production of music using samples, is being lost to society because copyright law makes it financially impossible for such works to be commercially released. Typically, 100% of the profit of a track created using samples, even if they are unrecognisable, will be lost in licensing fees.
- On the other hand, copyright law already does allow you to sample works for free as long as you don't redistribute them. The problem with a general exception for non-commercial redistribution is that what starts out as non-commercial may become commercial. Also, money will be made by intermediaries.
- All art and science is created by standing on the shoulders of giants. Music was being made using sampling principles 2000 years ago. Bach, though a genius, was a huge thief, as were many other classical composers. Collecting societies should make it easier for artists not to enforce their rights.
- Licensing can solve some of these problems, and collecting societies are adapting. Most authors are happy with the use of their works for non-commercial purposes, but the choice should be left up to them as to what uses of their works to allow, rather than enshrining this in an inflexible copyright limitation.
Debate 3: Consumers should be able to use lawfully-acquired/licensed copyrighted material for any purpose within their home and personal network
- Consumers are not told what they can do with the chickens, cars, or shoes that they purchase, yet they are told what they can and cannot do with digital works they acquire - the message is that the industry does not trust them. Measures to enforce these limitations, such as Sony's rootkit, harm consumers.
- Agreed that DRM is nowadays not a preferred option either for consumers or industry. However, it is a fallback position in cases where a country does not have a remunerated private copying exception, or when private copying cannot fairly be factored into the retail price of the product.
- The focus on inhibiting copying and sharing does not have broad acceptance. The entertainment industry is doing well enough at the moment that this should no longer be driving policy. Limiting downloads does not help in creating legal markets. Industry is even opposing global licensing.
- The availability of free private copying raises prices overall, which is not to the benefit of those seeking low cost access. If you want your family or friends to have access to the same content as you, buy them a gift card. Anyway, private copying rights do not extend to performance rights.
Following each debate, there was a time for open discussion between panelists and the audience. From these it was clear that although everyone acknowledges the real problems that consumers face, there is disagreement about the extent to which these are attributable to the limitations of copyright law (such as the lack of a "fair use" exception), or whether they largely result from the immaturity of technical models that would simplify digital content licensing.
In any case, both law reform and the evolution of efficient licensing mechanisms will take time, and in the interim, consumers are losing faith in copyright law. As Jeremy Malcolm pointed out in his wrap-up presentation the imbalance that they perceive from a raft of pro-copyright measures (term extension, anti-circumvention laws, the freezing of European limitations and exceptions, HADOPI in France, ACTA and now the TPP) has now spilled out onto the streets.
A number of measures that could help to restore balance now should be considered. These may include gratuitous collective licensing of "fair use" rights to consumers, an agreed moratorium on enforcement of rights to collect for fair uses, or a set of best practice guidelines that consumers and creators could agree upon, containing an expansive interpretation of permitted legal fair uses (such as those the Centre for Social Media has developed in the USA).
The main outcome of the meeting was a broad consensus to move forward on the last of these suggestions, by way of work towards the development of a best practice standard on the use of the "quotation" copyright limitation. Although this is the only copyright limitation mandated by the Berne Convention, its application within Europe has been inconsistent. We could examine the scope for the quotation right to serve some of the purposes of fair use within Europe.
Consumers International and its partners in this event would like to thank the panelists for their framing contributions during the debates, and those who participated from the floor, for their willingness to reach this important outcome. We look forward to collaborating with them all over the coming months as we look forward to concrete gains for consumers and creators alike through the development of a best practice document on the use of the quotation limitation.