SCRIPTed 2009: (c)

This session is all about copyright, and chaired by Edinburgh’s own Smita Kheria.

Sotiria Kechagia (Queen Mary) on how to manage copyright in the digital environment. I was a bit slow to start here, so apologies for missing part of the presentation. Looking with three approaches:
(a) DRM/TPM: governed by article 11 WCT, article 18 WPPT, DMCA and UECD implement; but we don’t understand the interface between DRM and limitations/exceptions, interoperability etc / management and contracts: no specific copyright contract rules, EULAs prevalent, and is there harmonisation? / collective rights management (how can they adapt to digital?)
(b) e-business models: pay-per-download or per-use, service convergence, Noank – but no common understand what new business models means for copyright
(c) Open Content Initiative: users access, create, modify etc the works: questions on creativity, role of authors

Users are creators too; copyright itself is changing in terms of subject matter, first ownership etc – and of course enforcement. What about various ideas such as sui generis approach, independent authorities like HADOPI (more on that in a moment), fundamental rights, the flexibility (or not) of the Berne three-step test…not forgetting that there is a creativity dimension (it is, apparently, the European Year of Creativity and Innovation).

Nicolas Jondet is presenting about a very controversial, current topic – the he French copyright authority (HADOPI), graduated responses and disconnection (outside France, often refered to as three strikes, though that means little within France/in French!). This reminds me that I really have dropped the ball on covering the Eircom issue in Ireland; Nick Scharf at UEA is working hard on comparative approaches to this question. Anyway, back to Nicolas, who starts with an explanation of the Olivennes report, including Olivennes’ own background with Fnac, and the wide consultation that took place. The report argued that there was a need for a better ‘legal offer’, but quickly Sarkozy stepped in and demanded action and the debate moved from report to draft law very quickly.
1. The media industry should act (VOD, no DRM, shorter release windows, seek VAT change at EU level).
2. Modifying the response to piracy, from strung but ineffective criminal provisions (hampered by constitutional difficulties with previous reforms): but technological and contractual solutions were found to be inappropriate or inadequate.
3. Graduated response – rebrand the DRM watchdog into a broader authority (HADOPI) with new missions to monitory piracy and implement the graduated response.
The response is a regulated warning phase (brought before HADOPI) which includes email/formal letter. There can be a disconnection, then, which should also apply to other operators (national directory of barred persons). Subscribers can follow recommended security, or even appeal the sanction to a court (Paris Court of Appeal, then Cour de Cassation). The response has been civil society campaigns (like la Quadrature), raising concerns like privacy, proportionality, the right to Internet access, technical questions (like triple play – ask Jacqui Smith!), and indeed the legislative/lobbying process behind the new law. However, there has been strong support in the Senate (a little less so in the Lower House), and the law is likely to pass. There may well be a constitutional reference too. Finally, there is the EU (Parliament) dimension (Guy Bono) – attempt to prevent disconnection (inc. in the Telecom Package), condemnation of the French proposals, and possible conflicts? [Lively question and answer - covering everything from standards of proof to the prospects for the legislation to the obligation to secure networks (open wifi etc) to the crucial question of proportionality - too much to follow!]

Finally, Tobias Bednarz addresses the question of collective management of music copyright.
1. He starts with a quick explanation of collective copyright management: exclusive rights exercised/enforced through collecting societies, collecting from commercial users. Typically, rights-holders transfer all their worldwide rights to the collecting society. This means that a user in one country would need multiple licences – so in practice CISAC coordinates this through a series of bilaterial agreements. Thus, each collecting society can issue ‘multi-repertoire licences’, being a monopoly within a territory.
2. This is under significant pressure due to online exploitation. Territorial boundaries are barely there, and there’s not even a EU-wide copyright. So the provider needs a number of licences. The ‘one-stop-shop’ advantage is gone, and then there’s….
3. EC competition law: can you go through a foreign collectng society? Lucazeau and Tournier cases, where nightclubs wanted to get licences from foreign collecting societies. ECJ found territorial limitations were not included in the reciprocal arrangements, and no concerted practice present (esp due to objective reason for societies not to engage in foreign markets). Revisited in CISAC (Commission decision) re Music Choice (more about it here), where it’s found that there is parallel behaviour and no objective reason due to online activities. This has been criticised that it is vague, and also the fear of a ‘race to the bottom’ (though administration costs might prevent this?)
4. The way forward:
- unconcerted responses (independent review of territorial restrictions), but does that really help the download store
- concerted response, meaning that the download store would have a choice (within the EEA).

That’s it for today’s SCRIPTed blogging. More tomorrow, battery etc permitting :-)