Copyright in the 21st Century

Copyright is big business in the European Union, accounting for 5% of its gross domestic product.

Small wonder then that early June saw the great and the good in the European copyright world flocking to the beautiful ‘Instituto degli Innocenti’ in Florence, the venue for the European Commission’s conference on ‘Copyright & Related Rights on the Threshold of the 21st Century’. One of those in the know was our own Laurie Kaye, Head of New Media at The Simkins Partnership; we caught up with him on his return.

Laurie, the conference was a follow up to the Green Paper published by the Commission just over a year ago. What was the main theme of the event?

Working towards a legal system which affords adequate and enforceable protection to all those involved in the creation and distribution of copyright materials across the Internet and private networks. Acts of digital transmission of copyright material are not limited by each member state’s boundaries, nor those of the EU as a whole. We have to eliminate the differences between our national copyright systems to avoid disrupting the free flow of copyright goods and services within the Internal Market. Moreover, we have to ensure that any harmonisation of our rules is in line with those taking place in the rest of the world.

This process is taking place at an international level within the World Intellectual Property Organisation, which is meeting in December to consider changes necessary to the Berne Convention given the impact of digital technology and networks.

So what came out as people’s main concerns?

Almost everyone was worried about the impact of cyberspace on copyright – to what extent will authors and producers be able to control online exploitation and transmission? Do traditional rights in copyright still apply? Are existing exceptions to copyright – for instance allowing copying for certain purposes – still applicable? How can (and should) the copyright community deal with the enforcement of rights in the face of home copying and commercial piracy? Issues like ‘browsing’ (which may technically infringe the reproduction right) raise the question of where we should draw the boundaries between copyright and freedom of information. Also, everyone recognises that the electronic environment knows no frontiers, so early international agreement is needed to ensure a level playing field.

And do people think that copyright – as we know it – is up to the challenge?

Yes, we felt that no new copyright concepts are needed. Materials crossing global networks are still copyright works and ‘related matter’ – such as films, musical compositions, recordings, databases and software programs. It is the environment which has changed, not copyright itself. In place of distribution in a material form, these works are now increasingly reproduced, distributed and communicated to the public in an immaterial form. So the need is for adaptation of the existing copyright framework rather than its wholesale replacement. The real weakness in the copyright system is in the area of enforcement and management of rights. Here, the general view is that a combination of legal and market-driven measures is needed.

Piracy is the obvious fear.

Yes, and if we are serious about tackling piracy, we need effective criminal and civil sanctions. Otherwise, we won’t deter people from using hardware and software devices to avoid copy protection and encryption systems.

Anyone working in multimedia knows about the problems of rights clearances. How should we deal with them?

We don’t need new law but we do need voluntary and flexible systems for the management and administration of rights. This may be on an individual basis, where the rightholder grants the rights direct to the user. Or clearance centres may develop which work on behalf of a group of rightholders, such as photographers; the centre grants the rights to users but in accordance with a tariff for use which is set by the individual rightholder. Presumably, traditional collecting societies will continue to be mandated by their members to license users on terms published by the collecting societies.

Obviously, one of the problems with rights clearances is the transnational capability of networks.

Yes, anyone wanting to clear rights to distribute a work on a global basis via the networks should only have to clear those rights once and to do that we need uniform and clear rules regarding ‘applicable law’. Of course, the problem here is that the uploading and storage of a work on a server in one territory, and the subsequent transmission and retrieval of that work via the network to and from other servers involves copyright acts in many countries. Whose copyright law is to apply? The issue is a complex one but we need to work towards a solution so that the rights can be cleared in one country for global transmission.

Many are concerned with the issue of who is liable and when. Was any progress made on this?

Nothing substantive, although it was recognised that we need sensible and balanced rules relating to the liability of service providers and access providers in relation to the material published within their services.

What about private copying – the issue which is probably of most interest to the average person?

Some member states operate levy schemes – for instance on blank audio tapes. These have been based on the view that it is impossible to control private copying so these schemes are a crude way of achieving compensation for rightholders, who receive the proceeds. Many people now argue that technical systems for labelling and encrypting works, combined with other electronic anticopying devices, will make it possible to control home copying. On that basis, there should be no private copying allowed. No clear consensus emerged on this issue.

Following on from that, here in the UK certain copying is permitted. Would this change?

Many countries have ‘fair use/fair dealing’ provisions, allowing copying for certain purposes e.g. research and reporting current events. Given the global nature of networks, there was a general view that an internationally harmonized approach to the issue is needed. However, there was no decision as to what this should be.

The US want online transmission to be classified as ‘distribution by transmission’ whereas the EC – which thinks that the current distinctions between interactive, online and broadcast transmissions will become redundant – views it as a ‘communication to the public’. Does this debate extend beyond semantics?

Yes; if online transmission becomes a primary means of delivery, rightholders won’t want there to be any doubt that they control the transmission. The debate may sound rather academic but the following example puts things into perspective: under French law, a record producer cannot oppose – and therefore control – the broadcast of its phonogram. It merely has the right to receive a fixed royalty. The concern of the recording industry is that if online transmission becomes a primary means of delivery, and is treated as a ‘communication to the public’ – that is, a type of broadcast, – it will not have full control over its primary means of delivery. The record industry will want to ensure that they have a full exclusive right to control any ‘communication to the public’ so that they can determine the price of supply.

Lastly, can you think of one comment made at the Conference which could encapsulate it for those who weren’t there?

Maureen Duffy, speaking on behalf of authors, suggested: ‘the first law for the digital age should be – cherish copyright and its creators’. It became apparent pretty quickly that everyone involved on the distribution side wants to be cherished too! But, given the natural reaction to be afraid of the new and innovative, perhaps the final word should go to Prof. Bernt Hugenholtz who urged us not to see the Internet as a huge illicit copying machine but instead to rejoice that we now have a new way to exploit works and generate income. Avanti!

This interview is based on the conference report by Laurence Kaye published in Multimedia – The Magazine, August 1996.

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