IP Blueprint Envisions Better Access to Digital Content, More Uniform Copyright Laws

IP rights are crucial to Europe’s economy, but their potential depends on the ability of multiple rights owners to collaborate and license technologies, products and creative content, and to bring new products and services to consumers, the EC said. IPR legislation should be seen as a “governance tool” regulating the relationship between creators, service and content providers and consumers, it said. Policy should be designed as “enabling legislation” that lets IPR be managed in the most efficient way, offering the right incentives for investment and creation, innovative business models, promotion of cultural diversity and the broad dissemination of works for society’s benefit, it said.

"The answer is the Single Market,” the EC said. Pricey and complex licensing rules create legal uncertainty for artists, users and consumers, one reason why e-commerce hasn’t really taken off, it said. Existing rules are also under strain from new technologies, and IPR enforcement has yet to be reconciled with the digital environment, it said.

Pan-European rules for online copyright licensing will boost services that are lawful, the EC said. This year it will propose a regime for collective copyright management to enable multi-territorial and pan-European licensing, it said. There will be common rules on governance, openness and supervision of collecting societies, and the establishment of “rights brokers” who can license and manage repertory in multiple regions while ensuring the development of Europe’s cultural diversity, it said. The system must include cross-border licensing, it said: Alternatively, there could be a European copyright code that harmonizes the various rights set at national levels.

The strategy also envisions measures to make it easier to access copyright-protected works via new licensing technologies, electronic data management, interoperable online databases and so forth, the EC said. “Specific attention” will be given to possible approaches to dealing with user-generated content, it said. Users who integrate content into their own creations must be able to obtain permission efficiently and simply, it said.

Other proposals include: (1) Appointing a high-level mediator to resolve ongoing wrangling over levies imposed on some recording equipment and blank media. (2) Legislation, also floated Tuesday, to identify and make available for digitization orphan works whose authors aren’t known or can’t be found. (3) Consultation on online distribution of audiovisual works that addresses copyright issues, video-on-demand services and cross-border licensing of broadcasting services.

The EC will review the 2004 IPR enforcement directive next spring to try to align it with the digital environment, it said. Any changes “should have as their objective tackling the infringements at their sources and, to that end, foster cooperation of intermediaries, such as internet service providers,” while being compatible with broadband policies and without prejudicing end-users’ rights, it said.

European Digital Rights accused policymakers of “building their strategies on faith not fact and ignoring objective, robust evidence.” In a “shadow” report responding to the EC, EDRi said the lack of sound evidence has led to a focus on “IP maximalism.” That results in stunted, fragmented markets that favor incumbents over new players, enforcement policies that harm people’s privacy and repressive content blocking plans. The EC relied on a discredited Organization for Economic Cooperation and Development study on the impact of IP infringement and ignored more recent studies, including the U.S. Social Science Research Council report on media piracy in emerging economies, EDRi said. It said a 2010 GAO report criticized the OECD statistics, saying it’s difficult, if not impossible, to quantify the effects of copyright infringements on the economy as a whole.

The EC should follow the thinking of the U.K. Hargreaves IP review (WID May 19 p2), which cautioned against making policy based on lobbying instead of facts, EDRi said. It also recommended that the EC harmonize copyright exceptions to create legal certainty about permitted uses of works covered by IPR. It backed pan-European licensing and an end to repressive enforcement measures, as well as efforts to export them to third countries.

An evidence-based approach to file-sharing shows that the negative impact of so-called piracy is a myth, said French citizens rights group La Quadrature du Net. Those who exchange cultural works on the Internet are “fans, not free-riders,” it said. A study commissioned by the French agency in charge of the “three-strikes” regime found that people who share works online say they spend more on content than consumers who don’t, it said. Revamping the IP enforcement directive is intended to force Internet companies to police their services and networks, La Quadrature said. The shift toward an increased role for Internet platforms in copyright protection is “alarming,” spokesman Jérémie Zimmermann said. “It comes down to transforming the very architecture of the Internet for the sole benefit of a few corporate players."

This is the first time the EC has said publicly it will review the IP enforcement directive, said Association for Commercial Television in Europe Director General Ross Biggam in an interview. Contrary to some interpretations, the plan to tackle infringement violations “at the source” appears to mean the EC won’t go after individual end-users but will focus on commercial piracy, he said. The strategy makes a “robust statement” that IPR helps economic growth, Biggam said. In a report published Tuesday, ACT described how commercial broadcasters have updated their business models for the online world. The goal is to “knock on the head” the idea that broadcasters don’t understand the Internet sector, he said. ACT also wanted to explode the myth that there are few legitimate online offers, he said. Many, such as the U.K. Hargreaves report, say copyright is a barrier to innovation, but the ACT paper showcases the vibrancy of services across Europe, he said.

Decision-makers must “take bold steps” to address the issues that are holding Europe back from a true single market, said DigitalEurope Director-General Bridget Cosgrave. The EC must tackle the “fragmented and distorted” system of copyright levies and content licensing, she said. The push for a true single market is “one of the best things that could happen” to small and mid-sized European businesses, said Association for Competitive Technology President Jonathan Zuck. Innovators need one-stop-shop IP protection across Europe, he said.

The European telecom sector praised the EC’s holistic approach but said it’s concerned about plans to increase the role of ISPs in preventing illegal downloads, particularly if voluntary cooperation is proposed that could bypass necessary safeguards now provided by judicial control on the legality of content. Shifting additional responsibilities and liabilities to providers will harm consumers’ privacy, contrary to current EU law, said Cable Europe, the European Competitive Telecommunications Association, European Telecommunications Network Operators’ Association, European Internet Services Providers’ Association and GSM Association.

Industry said it supports the need for IPR enforcement but wants “an objective and grounded economic quantification” of the impact of digital piracy. The EC should keep its positive focus on measures that spur innovative services, the groups said. Tightening enforcement rules “runs counter to” the optimal circulation of business and consumer communications across the many platforms in use today, they said.