EU Copyright directive
The Spanish government has issued a press release announcing a new draft Intellectual Property law. The law aims to adopt the existing copyright and intellectual property rights to the context of IT and implement the European Copyright Directive (2001/29/EC).
The main changes are:
1. The right to "interactive disposition" which regulates the way authors offer their works on the Internet. 2. Libraries can present their contents in telematic media as long as they remain within a closed intranet. 3. Quotes of both text and audiovisual material are allowed as long as its main use is teaching/ research. It is legal to quote press and journals as long as there are no economic benefits from such quotes. If the quote serves a commercial purpose, previous authorisation from the owner is necessary.
According to an article in the Sunday Times, the UK government is considering an extension of the copyright term for recordings. James Purnell, the minister for broadcasting, creative industries and tourism, suggested to extend the term from the current 50 years to the more generous US figure of 90 years. According to him record companies need this to make more money, so they can nurture more new talent. His press release says: "The music industry is a risky business and finding talent and artists is expensive. There is a view that long-term earners are needed so that the record companies can plough money back into unearthing new talent." Presumably he wants Europe to agree a term extension, whether directly or after a unilateral UK move creates a case for 'harmonisation'.
But many IP experts have seriously criticised the reasoning. Songs are protected by a lot of rights. For example, it's just not true that the Beatles songs start to come off copyright in 2013. The main rights appear to be publishing (owned by Michael Jackson for most of the Beatles songs), songwriter royalties (still owned by Lennon's estate and McCartney) and performance (owned by EMI). It's only this last right that starts to run out after 50 years: the others will last until 70 years after Sir Paul McCartney dies.
The German national library (Deutsche Bibliothek) has negiotated a license with rightholders to legally circumvent copy protection mechanisms on CD-roms, videos, software and E-books. It seems this is the first library in Europe to have managed a voluntary agreement on the strict new anti-circumvention rules prescribed by the EU copyright directive of 2001 (2001/29/EC). Article 6 of the EUCD prohibits acts of circumvention, as well as the distribution of tools and technologies used for circumvention of access control or copy protection measures. Member States could choose between penal or civil sanctions for infringement. Germany has chosen penal sanctions, with large fines or a 3 year prison sentence for circumvention for a commercial purpose.
Article 6.4 of the EUCD calls on governments to take appropriate measures
The European Commission has published the contributions to the public consultation on the copyright and related right directives. 126 contributions are available, ranging from all kinds of right-holders to civil society. Most contributions are available in English, some in French and German. The contributions from the right-holders provide interesting insight in the arguments used to convince the Commission to extend the term of related rights from 50 to 95 years, claiming Europe should harmonise with the United States. The MPA contribution (United States Motion Picture Association) is especially worth close-reading, insisting Europe should introduce mandatory data retention for law enforcement purposes (where the United States themselves have no such obligation). "There is, thus, a need for harmonized, proportionate data retention rules that apply to all relevant service providers, together with additional measures to streamline the process for ensuring access to data on a cross-border basis. It is also essential that the adoption of new data retention rules does not undermine the rights of access to data provided in the Enforcement Directive."
A Brussels court of first instance has ruled on 30 November 2004 that internet provider Tiscali should disconnect customers if they violate copyrights, and block the access for all customers to websites offering file-sharing programs. The case was instituted by the Belgian Society of Authors, Composers and Publishers (SABAM) on 24 June 2004 with an appeal to consideration 59 of the European Copyright directive (2001/29/EC).
This consideration states: "In the digital environment, in particular, the services of intermediaries may increasingly be used by third parties for infringing activities. In many cases such intermediaries are best placed to bring such infringing activities to an end. Therefore, without prejudice to any other sanctions and remedies available, right-holders should have the possibility of applying for an injunction against an intermediary who carries a third party's infringement of a protected work or other subject-matter in a network."
In answer to a consultation from the European Commission on the review of copyright law EDRI, EDRI-member FIPR and the Vereniging Open-source Nederland have argued for higher standards of user rights. The response was endorsed by twenty organisations. In stead of deleting such provisions from older directives such as 91/250 on Software, 92/100 on Rental and Lending Rights, 93/83 on Satellites and Cable, 93/98 on Terms of Protection, and 96/09 on Databases, the Commission should broaden the protection of user rights in the most recent directive, 2001/29/EC, known as EUCD.
This Directive is regarded by the EU Commission as the gold standard in the field of copyright and related rights. But this Directive is not as unproblematic as the EU Commission says, according to the response. There is a serious risk this Directive will be used to level down user rights that were granted in previous directives.
In October 2004 the European Commission organised a consultation on the review of EU legislation on copyright and related rights. EDRI sent in an evaluation, together with FIPR (UK) and VOSN (NL). The paper is available at: http://www.edri.org/docs/edri_copyright_consultation.pdf
Just before the Commission hearing on DRM, EDRI member FIPR (Foundation for Information Policy Research) organised a 2 day workshop on the future of EU legislation on copyright in Cambridge.
In his opening remarks, FIPR chairman Ross Anderson pointed to the 'big, greedy' industry interests dominating the discussion about so-called Intellectual Property Rights at present and called for a similarly 'big, greedy counterforce' which, he said, was already emerging from an ad-hoc alliance of industries concerned about copyright extremism, of user and consumer advocates.
Teresa Hackett summed up the issues in the Commission review. She pointed to the obvious contradiction between the Commission's claims that the review was just about 'finetuning for consistency' and the origins of the review at the 2002 Santiago de Compostela revision conference, where Commission representatives had openly talked about a 'Super Directive' on copyright and related rights they wished to have. The inherent danger was, she said, that the 2001/29/EC Directive (known as the EUCD), which the Commission is proud of, but which is indeed a badly and inconsistently drafted law, would be used as a blueprint for revising also neighbouring Directives such as the ones on Software or on Rental Rights. As for the Database Directive, she said it should be repealed, because it never had any justification and allowed rightsholders to get, using some simple tricks, eternal copyright on databases.