A Future Proof Copyright System
Speech held at ALAI Congress “Copyright – to be or not to be”, Copenhagen 19 May 2017
The very fundamental right that limits the scope of copyright is also a major justification for copyright protection: freedom of expression.
The recent developments around the world make us realize how important freedom of expression is. Expression is curtailed in many places and on many levels. Not only in countries with a traditionally totalitarian system, but also in countries we used to think of as democratic societies. Journalists are fired and put in prison. Websites and social media are blocked by governments. Networks are banned from presidential press meetings. Etcetera.
Independent news services, artists, journalists, photographers and film makers in the meantime have to compete with an overload of social media and fake news.
In this environment it is particularly important to safeguard and promote independent creation. Without independent creation there is no certainty that we will have access to verified information, to cultural expressions and to new ideas. And without such access, we are likely to understand each other even less than we already are.
Copyright has an important role to play here. It enables creators and businesses to undertake independent creation. It allows them to invest in the development of new works, without being dependent on government programs.
Now, of course, this only works if the creator actually gets paid and if the public is actually given access to the work. In theory, copyright should do both: by making the work available to the public, the author can license the work and be remunerated. Payment in return for access. In practice, however, there are all sorts of obstacles that may leave the author without payment, or the end user without access. Or both.
Many obstacles have been discussed during this conference. I will briefly discuss the following obstacles that I think need to be addressed:
• Consumer perception; lack of respect for copyright
• Consumer liability vs. liability exemptions for network operators
• Users could not find right holders if they wanted to
• Authors do not share in licensing income
To make copyright future proof, we should concentrate on removing these obstacles. If we succeed in doing that, copyright law will be better equipped to do what it is supposed to do: enable authors
to create works and end users to access these works. This will enhance acceptance by the public at large. And it will probably reduce the tendency to put forward new exceptions and limitations.
Consumer perception; lack of respect for copyright
Ever since the internet became available to the public at large, there has been a tremendous resource of illegal content. As a result, a whole generation has grown up thinking that it is stupid to pay for creative content. For a long time young people have spent all their money on cell phones, computers and internet connections. Content was downloaded for free from bit torrent or other illegal networks.
Luckily things are changing for the better. Legal content is now available online in abundance. Slowly but surely young people are warming up to the idea of paying for creative content.
Ease of use is the key: unlimited access on all devices from every location. Automatic monthly payment or micro payments.
Rightholders and distributors are adapting to this model. Licensing however is still largely territorial as a result of which consumers may not be able to get online access to content where-ever they are. If you are traveling, it is annoying to get a screen saying the content you want to see is not available from the country you are in for copyright reasons. This does not help consumer acceptance.
The EU legislator has acted on this. As from 2018, a EU regulation will make content portable so that consumers can access the music, movies, e-books and games they paid for from where-ever they are.
In addition to this, education will remain necessary. Young people should be educated to understand that the abundance and diversity of content that is available, is actually there because creators are able to retrieve payments for it. And that copyright is necessary to bring these payments about.
Consumer liability vs. liability exemption for network operators
Another obstacle why copyright is not doing what it is supposed to do is the allocation of liability for content.
Rightholders over the past twenty years have had a hard time fighting piracy on the internet. Courts have long held that the operators of the bit torrent and other networks are not liable because the content is not actually stored on their servers but on the computers of the consumers that use their networks. In other words courts said: you cannot catch the spider in the web, but you may be able to get the consumer. In some countries rightholders and law enforcement did revert to holding consumers liable for uploading content to these illegal networks. We all remember the three-strikes-and-you-are-out actions. This may work on a micro level but does not particularly benefit the reputation of copyright. More recently, we see ECJ decisions that transpire the notion that the liability should actually be on the spider in the web, the one that provides access by operating a network and profits from it.
Young people in the meantime increasingly revert to social media platforms such as Facebook and YouTube to find content. Here too, the allocation of liability is off. Courts in many countries have held that the uploading consumer is directly liable while the networks are exempted under the safe
harbour provisions for hosting providers. The fact that consumers are liable has given copyright a bad name and has spurred many to lobby for an exception for user generated content.
Rightholders however do not want to enforce their rights against consumers. They want social networks to thrive. Rightholders want to license the operator of the network. And this makes sense: licensing the party who controls the distribution channel and who makes money by doing so. This is how copyright is supposed to work. Courts and legislators should remember this when allocating liability. The European Commission, in its Digital Single Market Initiative, has made an important first step. The draft Digital Single Market Directive requires active network operators to take out licenses. And all operators, also those who benefit from safe harbour, have to work with rightholders to install technological measures to control the use of copyright content. This will leave rightholders better equipped to procure payment. And consumers will have full access without even noticing that copyright is being exercised. And that is how it should be.
Users could not find right holders if they wanted to
This issue has already been discussed this morning. Libraries, museums and archives need to be able to work with copyright content, but have a hard time dealing with the rights. Money obviously is an issue, especially where governments cut down on funding. Another issue is that museums and archives may be willing to take out a license, but are not able to find the parties who can license the thousands or millions of works used. Several legislative initiatives have been undertaken to introduce mandatory collective management for orphan works and out of commerce works. The problem is that these are piecemeal solutions that do not meet the needs of the libraries, museums and archives. The collection may be part orphan, part out of commerce and part in commerce. The museum or archive furthermore may want to use the works in ways that are not covered by mandatory collective management. To facilitate this, CMOs should either be able to license all works (ECL) or individual licenses should be easily available (in lieu of or in combination with collective licenses). We are nowhere near that situation. Could the solution lie in the publication of accurate licensing data? Or perhaps in blockchain? It is clear that one of the challenges for the near future lies in finding a workable balance between individual and collective licensing. We should bear in mind that if the market does not find the balance, the call for outright exceptions will re-emerge.
Authors do not share in licensing income
Finally, an important obstacle for a future proof copyright is the fact that licences are often being paid without the author benefiting from it at the end of the day. Publishers, record companies and film producers are adapting to new, online business models. In this hard and fast world, authors tend to get left behind. Deals are struck with Internet platforms without authors participating. This is in particular true for writers and film makers. In a level playing field they would be able to negotiate a remuneration for digital uses in their contract with the publisher or producer, requiring the publisher or producer to allocate a share of the licensing income to them. In reality most authors are not in the position to do so. This undermines the primary justification for copyright: enabling creators to retrieve income from their works so that they can continue creating.
To compensate for the lack of negotiation position on the individual level, authors should be positioned to negotiate for remunerations collectively, either through collective bargaining or collective management. The law does not always accommodate this. Competition laws in many
countries preclude independent creators from negotiating collectively. Authors CMO’s furthermore have difficulties under the law to establish mandate for digital uses and as a result have a hard time to secure fees for TV catch-up services, video on demand, online press services, etcetera.
In several countries, legislators have acted to improve the position of authors, however the scope and modalities differ from country to country. In the Netherlands, the legislator in 2015 introduced a statutory right for authors CMO’s to collect fees from TV distributors. The director and screenwriter transfers their rights to the producer and in return the TV distributor has to pay a fee to the CMO directly. A similar solution could work for video on demand and for on demand uses of literary works. This would ensure that authors continue to receive income as the traditional markets for films, books and news are gradually being replaced by on demand services.
In summary, I believe that if we can tackle these issues, copyright will function better and do what it is supposed to do: make sure that authors can create and that the public is guaranteed access to independent information and diverse culture expressions. As such, copyright does have an important role to play in the future