By Ben Challis
The 1709 Blog
Copyright reform is perhaps surprisingly high on the political agenda. But why shouldn’t it be? Most of us love books and magazines, films and plays, music, television and games. But we have shifted away from a world where distribution had a cost, and copies had a cost – at least in terms of time and effort to produce and and/or a monetary cost. We all know the Internet changed that. We now have a brave new world where multiple copies can be made with little effort and often no cost beyond a file upload – and we have pitted the giants of the content industries – film and television companies, newspaper and book publishers, photo agencies, games and software producers, record labels and music publishers, against the technology companies – internet service providers, search engines, content aggregators, website hosts and technology companies – new, disruptive technologies – with some, like Sony, Apple and even now Google, with a foot in both camps.
During her testimony to the House Subcommittee on Courts, Intellectual Property and the Internet Committee on the Judiciary, Maria A. Pallante, the US Register of Copyrights at the United States Copyright Office, explained “The law is showing the strain of its age and requires your attention. As many have noted, authors do not have effective protections, good faith businesses do not have clear roadmaps, courts do not have sufficient direction, and consumers and other private citizens are increasingly frustrated” and that the US needed “the next great copyright act” which Pallante said is needed as consumers are increasingly “accessing content on mobile devices and fewer and fewer of them will need or desire the physical copies that were so central to the 19th and 20th century copyright laws.”
It’s not just one issue – digitization is the main driver, but there are other reforms that have been suggested: clarifying the scope of exclusive rights; revising exceptions and limitations for libraries and archives; addressing orphan works; accommodating people who have disabilities when they access content; providing guidance to educational institutions; exempting incidental copies in appropriate instances; updating enforcement provisions; providing guidance on statutory damages; reviewing the DMCA; assisting with small copyright claims; reforming the music marketplace; updating the framework for cable and satellite transmissions; encouraging new licensing regimes; and improving the systems of copyright registration in the USA. The Hargreaves review of copyright in the UK provided a similar if not identical list of issues that needed to be addressed – and progress has already been made on the creation of a “copyright hub” and a Digital Copyright Exchange to promote digital licensing. The UK Government has said that it will support the reform of IP laws ,and highlighted the need to progress this, saying in particular that: copyright exceptions covering limited private copying should be introduced to realise growth opportunities; The introduction of an exception to copyright for search and analysis techniques known as ‘text and data mining’ needs to be introduced; Copyright exceptions to allow parody should also be introduced; the Government would support introduction of an exception to copyright for search and analysis techniques known as ‘text and data mining’ and would support establishing licensing and clearance procedures for orphan works.
Elsewhere in Europe, Spain is working on a new anti-piracy law which will be robust enough to keep the country off a U.S. watch list of copyright violating countries. The Copyright lobby group the International Intellectual Property Alliance (IIPA) has recommended the United States Trade Representative put the country back on a so-called “watch list” after removing it last year. Countries on this list can face trade sanctions from the United States if they do not crack down on piracy.. Spain had already passed their anti-piracy law – the so called ‘Law Sinde’ which was designed to crack down on websites popular with Spaniards for illegally downloading free movies, music and video games. But under the law, the burden is on copyright holders to lodge complaints with the government, which is slow to act against websites allegedly violating copyright. The new draft bill takes on board recommendations from the IIPA and others to speed up the process of going after the problem websites. The draft law clarifies that Spain will go after “linking sites” that direct people to content on other services and establishes fines for companies that advertise on piracy websites. It also includes measures to block piracy sites from using payment services such as credit cards The bill, currently receiving public feedback, will be redrafted to go to parliament for debate. The minister said he expected it to be adopted by the end of the year.
The Spanish copyright lobby wants the bill to give the government power to shut down sites quickly where illegal activity is detected. “We want legal protection comparable to any other property right,” Carlota Navarrete, director of the Coalition of Content Creators and Industries, said.
Not surprisingly, in the USA the Motion Picture Association of America (MPAA) is already lobbying. According to the MPAA, its member companies “welcome a continuation of the ongoing discussion of the importance of copyright” : a memo circulated by the MPAA “unapologetically” stated that any debate should easily conclude that copyright law ”encourages and rewards creativity and breakthrough innovation”. But is it fit for purpose? Are laws passed by sovereign states even relevant in a market increasingly dominated by a world wide web which knows no boundaries or territorial exclusions? Some have even said that ‘copyright wars are damaging the health of the internet’.
And the lobbying isn’t just from the ‘pro’ copyright camp. In the USA Mark Zuckerberg and other technology leaders, including LinkedIn founder Reid Hoffman, Dropbox chief Drew Houston, Reed Hastings, CEO of Netflix, Microsoft boss Bill Gates and Eric Schmidt, chair of Google, have set up a new high-profile advocacy organisation. The group, called FWD.us has enlisted the help of Washington DC-based lobbyists and communications people on both sides of the political divide – although initial reports were not about copyright – they were about immigration and education; “To lead the world in this new economy, we need the most talented and hardest-working people. We need to train and attract the best. We need those middle-school students to be tomorrow’s leaders” Zuckerberg said in an opinion piece published in the Washington Post. But watch this space …….
In Europe the technology companies have had a mixed bag of results in the courts. In the UK, Mr Justice Arnold was issued blocking orders ordering ISP BT to remove access to the infringing Newzbin sites in Newzbin 2 (Twentieth Century Fox Film Corp & Ors v British Telecommunications Plc  EWHC 1981 (Ch)). The European Court of Justice took a different approach in 2011 in Scarlet v Sabam where it ruled against the proposed widespread and indiscriminate filtering system which would require constant monitoring at the expense of the ISPs under Article 15 of the Electronic Commerce Directive 2000/31 and Article 3 of the Enforcement of IP Directive 2004/48 which provides that “IP remedies “shall be fair and equitable and shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays”. Bearing in mind possible human rights issues, and citing the Promusicae case, the court commented that the protection of IP rights “must be balanced against the protection of other fundamental rights”. One comment at the time was that the Court’s decision was “hugely important for the openness of the Internet, and therefore for the fundamental rights value and the economic value of the Internet.”
Indeed the UK’s Supreme Court have just echoed these thoughts in NLA v Meltwater saying the question being whether the copies made on users’ computer screens and hard drives when they access and read content online are temporary for the purposes of Article 5.1 of the InfoSoc Directive meant that “the issue has a transnational dimension and that the application of copyright law to internet use has important implications for many millions of people across the EU making use of what has become a basic technical facility. These considerations make it desirable that any decision on the point should be referred to the Court of Justice for a preliminary ruling, so that the critical point may be resolved in a manner which will apply uniformly across the European Union“.
And that’s where we still are: Its balancing rights – the rights of content owners to protect their rights and their business models – the rights of artists, musicians, dramatists, writers to be paid – the rights of technology companies to promote new businesses and not to be unfairly fettered – the rights to a freedom of expression – and the rights of consumers and individuals to protect their personal data and their freedom to receive or impart information in a free, open and neutral internet.
Most recently organisations representing Europe’s communications industry have urged the European Commission not to change the 2004 directive on the civil enforcement of intellectual property rights (IPRED). The Commission have recently closed a public consultation on proposed changes. The group, which is made up of Cable Europe, ECTA, ETNO and EuroISPA, represent the telecommunication and mobile telecoms operators, Internet Service Providers and cable companies in Europe and the group warned that “introducing stricter enforcement through increasingly restrictive technical measures” would have “a chilling effect” on innovation, consumers’ confidence in digital products, freedom of communications and Internet openness.
The group is particularly worried that under a revision of the IPRED directive, ISPs “may be ordered to implement unspecified, disproportionate and possibly repressive technical measures in a blanket fashion against their customers.”
The consultation on IPRED, which closed March 30, has proved controversial. Many civil liberties activists believe the questions were biased in favour of copyright holders. Blogger Glyn Moody wrote “This is the worst such consultation I have ever seen. The questions are badly worded and it’s only too easy to tick a box that causes you to miss dozens of important questions. This flows from the totally biased way the consultation has been framed: it’s clearly aimed at holders of intellectual monopolies who want to enforce them more strongly,”
Monica Horten, a visiting fellow at the London School of Economics, agreed saying “All of the questions are addressed to rights-holders and ask only for their viewpoint. There is no place for non-rights-holders, who could be ISPs, to write a response” in an online opinion piece.
This may well be the reason the electronic-communications industry group decided to write its own appeal to the Commission. In it, the group warned that filtering copyrighted material may be “incompatible with fundamental laws of privacy around data protection.”
The industry group also referred back to the ECJ’s decision in Scarlet v Sabam and questioned whether such filtering methods are even effective, given that such measures can be quickly and easily circumvented. Instead, the Commission should urge copyright owners to develop new business models that “embrace the Internet revolution,” the group said.
Disruptive technologies always promote change and usually throw a spanner into the workings of traditional business models: Think of digital cameras and their effect on market leader Kodak’s business. Catastrophic. Think of encyclopaedias and Wikipedia. Think of telephones replacing telegraphy. And once the new technology is in place, as one of our comments noted recently, it’s almost impossible to get back to the ‘good old days’. Adapt or die. But never has change been driven so quickly – and nor have the technology innovators grown so quickly: the behemoths of Google, Amazon, Apple and Facebook now financially dwarf traditional business models such as the recorded music business and music publishing – and have ever increasing clout. And whichever side of the divide you sit on, one thing is clear – copyright law, whilst not broken in my own opinion, is clearly struggling.
Recent spats such as the Google Book Search litigation, the recently reported action by collection society Access Copyright in Canada against York University, the criminal and civil actions against platforms such as The Pirate Bay, the high profile prosecutions of file swappers such as Joel Tenenbaum and Jammie Rasset Thomas, The Viacom v YouTube and GEMA v Youtube cases, The ReDigi and Usedsoft cases, Meltwater (both in the UK and now the USA) and other aggregator vs content owner disputes and the MegaUpload case are just some of the many many examples of the courts being asked to adapt the law to meet innovative – but disruptive – uses of new technology. And the backlash is that consumers are often legitimately confused – asking questions like “why cant I format shift?” and “why don’t I own the music downloads I paid for?”. Legislation crawls along behind: in the UK content owners remain critical of the Government as key parts of the Digital Economy Act remain unimplemented, but are France and New Zealand’s ‘Three strikes’ laws really appropriate in the digital age? The DCMA seems to have rapidly outdated after it’s short history – is ‘safe harbour’ in 2013 really a suitable doctrine fit for use in 2013 – surely business models are very different to when the doctrine was was envisaged in the late 90s? Was ACTA really that bad? Is term extension something that makes any sense now? Does the Pirate Party have a valid role in politics?
Questions, questions, questions – but beneath it all are some fundamental principles and some fundamental freedoms which apply to digital natives and digital immigrants alike – and to those on both sides of the divide.