Smith Addresses Edinburgh University On EU Copyright Law

14 January 2011
Alyn Smith today addressed Edinburgh University students on the issue of European Union Copyright and Intellectual Property (IP) Rights legislation and reform.

Speaking to Masters students of EU Copyright Law, Smith said:

Good afternoon, thanks very much for the introduction and the invitation, I’ll do my best to make some sense of Copyright and IP for you today, to the extent that anyone can! And that’s possibly a rather large caveat, and I’d stress I’m not a technical expert, but I can at least give you a flavour of where we are and where we’re going, and what public policy drivers are at play.

I’d also ask your help with some of the bigger questions we’re trying to get our heads around at the moment. There’s no formal legislative proposal in front of us, yet, so the parties are, to be honest, all scratching our heads and I think it would be dishonest to pretend there are any great political differences on this, yet. There probably will be but certainly at the moment I think we’re all feeling pretty reflective as you’ll probably gather when I’m asking more questions than giving answers.

Now we’ve only got an hour so I’ll talk in four areas today, and given you’re an audience with expertise I’ll leave plenty time for questions and comments:

  • Introduction
  • Where are we on Copyright and IP?  Do we need reform at all?
  • Where the Commission is with proposals, explanation of thinking
  • Timescales, personal predictions
  • Q+A

So, where are we on Copyright and IP? Do we need reform at all?

Domestically, as you know, sadly the Holyrood Parliament has no competence in IP, and the main instrument is the Copyright, Designs and Patents Act 1988. There is also the Copyright and Related Rights Regulations 2003 which implements the EU Copyright Directive.

Essentially, the CDPA88 establishes that copyright in most works lasts until 70 years after the death of the creator if known, otherwise 70 years after the work was created or published. In EU terms that’s very restricted, but the system has, more or less, worked, though looks increasingly leaky, especially on IT stuff.

An attempt was made to plug that gap with the Digital Economy Act 2010, an attempt to regulate digital media. It was pushed through at the fag end of a parliamentary term, and that rather shows in the quality of the legislation. Already, it is falling apart and I suspect it is not long for this earth.

On 10 November 2010 the English High Court granted permission for a judicial review of Sections 3 to 18 of the Act related to online infringement of copyright, a pretty fundamental plank of the Act. You’ll be aware of the independent review, but there’s also the enforcement provisions, and the three strikes provisions and questions of privacy and net neutrality, none of which are, to my mind, adequately provided for in the Act.

But we’re not alone, nobody has done much better. Other countries in the EU to introduce similar measures are Ireland and France (the “Hadopi Law”), but without much support in principle or success in practice.

Technology has, I would suggest, made national law quite quite redundant, and we need to deal with this on a wider scale, which throws up its own challenges.

Where the Commission is with proposals, explanation of thinking

There’s two main instruments at EU level on this:

The Copyright Directive (2001/29/EC) implements the WIPO Copyright Treaty, to which the European Union is a party. It was heavily lobbied and is criticised as being too pro-copyright holders than content users.

The Directive on the Enforcement of Intellectual Property Rights (2004/48/EC) - The Directive on the enforcement of intellectual property rights such as copyright and related rights, trademarks, designs or patents was adopted in April 2004.  Apparently:

“the Directives require all Member States to apply effective, dissuasive and proportionate remedies and penalties against those engaged in counterfeiting and piracy and so create a level playing field for right holders in the EU. It means that all Member States will have a similar set of measures, procedures and remedies available for rightholders to defend their intellectual property rights (be they copyright or related rights, trademarks, patents, designs, etc) if they are infringed.”

So goes the theory, and you’ll note that is all about rightholders, not users or necessarily creators. At least we catch on eventually when things aren’t working. The Commission published a report in December 2010 on the application so far and concluded that:

"it has become apparent that the Directive was not designed with the challenge posed by the Internet to the enforcement of intellectual property rights in mind. In addition, several issues could deserve further attention."

Something of an understatement! The Commission is actively consulting, and has asked for feedback from the European Parliament, the Council of Ministers, Member States and all other interested parties on this Report by 31 March 2011 and will later conduct an impact assessment. The Directive will likely be reviewed at a later date.

Where the Commission is looking to take it is unclear, but it is a safe assumption that they will be looking to undermine member state competence and increase EU responsibility, because that’s what they always do!

In this case, as I’ve mentioned I think technology is already there. The question, as it always is, is what will the EU system look like and will it be better, and on that point I’m undecided.

Neelie Kroes, Commissioner for the Digital Agenda, has stated that she wants a new approach to copyright, full stop. Listen to this from her:

“Today our fragmented copyright system is ill-adapted to the real essence of art, which has no frontiers. Instead, that system has ended up giving a more prominent role to intermediaries than to artists. It irritates the public who often cannot access what artists want to offer and leaves a vacuum which is served by illegal content, depriving the artists of their well-deserved remuneration. And copyright enforcement is often entangled in sensitive questions about privacy, data protection or even net neutrality… It may suit some vested interests to avoid a debate, or to frame the debate on copyright in moralistic terms that merely demonise millions of citizens. But that is not a sustainable approach.

“We need this debate because we need action to promote a legal digital Single Market in Europe.

“My position is that we must look beyond national and corporatist self-interest to establish a new approach to copyright. We want "une Europe des cultures" and for this we need a debate at European level.

“… Instead of a dysfunctional system based on a series of cultural Berlin walls, I want a return to sense.  A system where there is scope to create new opportunities for artists and creators, and new business models that better fit the digital age."

So that’s where things sit presently, we’re expecting something, and we know by the by that there is a battle going on within the Commission, because likely you will get a different answer from the Legal Affairs Committee of my Parliament to the Culture Committee, and different bits of even the Commission view this in different ways. The member states themselves view these issues differently too, so there is a lot of scope for things to spiral in unexpected directions. But "we’re expecting something to change" is about as good as you’ll get right now.

However, the Parliament is not idly waiting for it to happen to us, we’re the co-legislator and there are a number of groups within the Parliament actively promoting their agendas.

Chief among these is the Parliament’s Working Group on Copyright, which released a report at the end of 2010 called ‘Copyright, Territoriality, Collective Management and Remuneration’. It concluded:

“Copyright in the European Union is essentially regulated by national law despite some harmonisation initiatives taken at EU level. Territoriality remains one of the cornerstones of copyright law, as laid down in the Berne Convention. It is important to know whether this principle remains valid in the digital world.

“Territoriality poses more and more impediments to the development of online services: content providers aiming at offering creative works to the entire EU market need to clear rights in each of the 27 Member States. That also means that consumers interested in a cross-border access to creative content face considerable obstacles or look for alternative, although not always legitimate, ways of access. This is detrimental to the exploitation of creative works and prevents the true development of an internal digital market.

“The principle of territoriality needs to be read and understood from a new perspective brought about, on one hand, by the creation of an internal market and, on the other hand, by technological progress. Territoriality needs to be either reinterpreted or abandoned in its current form, in particular where new technologies have created new methods of access and distribution of creative content which, by their very nature, are borderless and form the basis for new business models and consumption patterns.

“Against this background, it should be recalled that Article 118 TFUE allows for the creation of a European copyright. The establishment of a unified European copyright law, which is advocated in scholarly debate, would have the advantage of removing all copyright-related territorial obstacles to the creation of a single market for copyrights and related rights, both online and offline, ensuring legal certainty and reducing licensing costs.”

As I mentioned, the SNP sits in the same group as the Swedish Pirate Party, and while I don’t agree with all their analysis they have thought about the issue more than most.

Think about this from Christian Engstrom, and I do appreciate most of you are lawyers so you might want to take a deep breath!

“If you search for Elvis Presley in Wikipedia, you will find a lot of text and a few pictures that have been cleared for distribution but you will find no music and no film clips, due to copyright restrictions. What we think of as our common cultural heritage is not "ours" at all. On MySpace and YouTube, creative people post audio and video remixes for others to enjoy, until they are replaced by take-down notices handed out by big film and record companies.

“Technology opens up possibilities; copyright law shuts them down. This was never the intent.

“Copyright was meant to encourage culture, not restrict it.

“This is reason enough for reform. But the current regime has even more damaging effects. In order to uphold copyright laws, governments are beginning to restrict our right to communicate with each other in private, without being monitored.

“The Pirate Party wants to fundamentally reform copyright law, get rid of the patent system, and ensure that citizens' rights to privacy are respected. The official aim of the copyright system has always been to find a balance in order to promote culture being created and spread. Today that balance has been completely lost, to a point where the copyright laws severely restrict the very thing they are supposed to promote. The Pirate Party wants to restore the balance in the copyright legislation.

“All non-commercial copying and use should be completely free. File sharing and p2p networking should be encouraged rather than criminalized. Culture and knowledge are good things, that increase in value the more they are shared. The Internet could become the greatest public library ever created. The monopoly for the copyright holder to exploit an aesthetic work commercially should be limited to five years after publication. Today's copyright terms are simply absurd. Nobody needs to make money seventy years after he is dead. No film studio or record company bases its investment decisions on the off-chance that the product would be of interest to anyone a hundred years in the future. The commercial life of cultural works is staggeringly short in today's world. If you haven't made your money back in the first one or two years, you never will.

A five years copyright term for commercial use is more than enough. Non-commercial use should be free from day one.”

So chew on that! To make that happen we would need a revolution in how we view rights to content. The Pirate Party’s position is, of course, extreme, but it is intellectually robust, and stands scrutiny better than a lot of the self interested and self serving position papers I’ve been given by various lobbyists.

Timescales, personal predictions

So I hope that has given you at least a flavour of what we’re trying to grapple with. Where it will end up is an ongoing democratic process, so I can’t predict with too much certainty. However, there are a few milestones.

The Commission consultation ends on 31st March, we’ll thereafter see an impact assessment on the 2004 Directive and the terms of that will give us a better indication of what sort of model the Commission is drawn to.

But my concern is wider, and almost philosophical – I’m not convinced that anything we do will actually keep pace with the technology.

Our laws, all laws, are designed to regulate things, be they people or goods or services, and date back to a period when things did not cross borders that much. Even today the EU is still making that work, otherwise we wouldn’t need an ECJ.

But I think we’re almost at the stage where we can say technology has created a new entity, “content”, and to try and quantify or codify that, or control it, is I think all but impossible. Personally I’d pose the question whether it is even desirable to make those who would seek to control it work a lot harder than they have to date in justifying their rights to restrict, specially given the (state run!) snooping apparatus necessitated by their private commercial interest.

So I hope that’s raised some issues for you and challenged you to not just interpret the law but to work out why we have it in the first place, and how it came to be.

I think when you look back to the founding texts and cases of the EU, to Van Gend en Loos, Cassis de Dijon and the rest, that we’re seeing a similarly fundamental legal shift underway now. Where that’s going we’re not sure, but those living in revolutions rarely know it at the time.