by Karsten Xuereb for the ECA
Panel 1: National initiatives shaping the new roles of the creative online industry
Willemien Bax, Deputy Director General, BEUC: She noted that internet service providers (ISPs) should not take on the role of policing the internet since this is not their function and doing so would go against their duty to provide a free and fair service to services and users. She also noted that the online legal offer is not fair towards consumers and gave the example of consumers who subscribe to services which allow them to download music items which are however all lost if one subscription payment is missed. Ms Bax also expressed her opposition to digital rights management (DRMs) because they limit interoperability, as well as ‘hidden’ or ‘changeable’ contract clauses which change the conditions of the contract with time (most of the time for the worse).
Ruth Hieronymi, MEP: She was very pleased with the fact that this discussion was about creative content with emphasis on the cultural aspect. Ms Hieronymi noted she was in favour of having a legal framework which encouraged the respect for regulation while promoting diversity and recalled the three main tools which already exist:
1. The Telecom Package which deals with the infrastructure. She noted that amendment 138 (aka the Bono amendment) of the Framework Directive was not the first phase in developing regulation since much work has already been done. She noted that the focus of efforts in this field should however shift to amendment 132 which asks Member States to improve dialogue between stakeholders;
2. The Commission Communication on Content Online; and
3. The Commission Communication on Collecting Societies (DG Markt): Ms Hieronymi noted that efforts to balance market issues with safeguarding diversity through the use of this instrument were not really working.
Ms Hieronymi advocated separating the main issues in order to deal with them in depth separately and systematically with an aim to produce a comprehensive strategy to tackle both the technical issues as well as the very important cultural context. She concluded by referring to one more issue, that of the rule of property and the relevance of realistic revenue, and noted that IP rights which do not have realistic value are useless. She noted that in today’s climate of failing financial services this question was crucial.
Chris Ancliff, General Counsel of EMI: He protested vigorously against the ‘black and white’ picture given by some camps about the way companies seemed to exploit users. He noted that EMI spent a lot of its time speaking to ISPs, search engines and electronic devices manufacturers to find the best solutions for consumers.
Questions to the panel
A representative of FERA noted that the e-Commerce Directive went against amendment 138 which proposed that ISPs have to react when faced by an irregularity performed by a user. Michael Bartholomew, Director ETNO, noted that amendment 138 had been rightly voted down by the European Parliament (EP) in an overwhelming manner since he believed the EP realised that ISPs should allow freedom of expression and use and refrain from policing the system. He noted that ETNO shared the same view and was against any form of filtering or censorship with the only exception being the case of child pornography. He also said that in any case actions taken by ISPs needed a court order – this final point was later challenged by a representative of the Recording Artists’ Association. Mr Bartholomew supported the view that what was needed was more legal offers and noted that it was a shame that governments and policy makers passed laws which encouraged policing and criminalising consumers. He concluded by saying that content online was a marketable service and as such legal offers needed to fight in the online market and not in EU regulations camps.
In response to a query by a representative of Audible Magic Ms Bax noted she opposed a graduated approach and was in favour of having consumers’ rights being equal in the offline as well as the online environment. Mr Ancliff noted he supported filtering as the more illegal content was eliminated the more bandwidth would be freed up. He noted this would benefit up to 80% of ETNO’s members. Finally, Simon Hampton of Google admitted he would be very scared to see filtering applied to all channels since this would be very controlling and counterproductive to freedom of use and creativity.
Panel 2: Competition Shaping the Future of the Creative Online Industry
The second panel dealt primarily with the CISAC case where 24 authors’ societies were warned by the Commission (DG Comp / Commissioner Kroes) last July to change their monopolistic operations. 22 out of these 24 societies appealed against this decision last week.
Eric Baptiste, DG of CISAC: He noted that CISAC represented 222 authors’ and composers’ societies in 118 countries, adding up to 2.5m publishers and creators from all the arts. Mr Baptiste pointed out that the Commission’s decision did not find territorial or bilateral agreements and limitations as such going against the law and stressed the fact that no ‘smoking gun’ was found. What the decision did see was groups talking to each other within CISAC. This meant that CISAC was not in a position to help its members. He recalled the Santiago Agreements Framework (1989) which he supported in its attempt to have a global license. He noted that the EU took a position against the Santiago Agreement in 2002.
Margot Daly, Chief Executive, Music Choice: Ms Daly was very angry about the fact that in 2005 Music Choice spent up to 50% of its profits on clearing copyright with individual countries’ authorities rather than with a more coordinated body and noted that this large expense was taken out of returns to artists. Ms Daly noted she had been campaigning for change for the past 8 years and was relieved but also frustrated at seeing the Commission speak of dialogue now.
Rob Kirkham, BBC: He noted that the BBC cleared 800,000 music items for copyright every month and said this was a large expense which the BBC wanted to keep as low as possible. Therefore the BBC was in favour of a one-stop shop approach and Mr Kirkham felt that without CISAC the clarity of the legal offer framework was damaged.
Pia Raug, DJBFA: She invoked the Bern Convention and the UNESCO Convention on the protection and promotion of the diversity of cultural expressions in order to speak of the need to defend artists’ rights and supported the work of CISAC to do so. Following a later comment by Mr Hauptmann of RTL on collecting societies being monopolistic, Ms Raug noted she feared these being replaced by BMG, EMI and other major multinationals which would take up all authors’ rights and in so doing seriously compromise diversity and authors’ expression.
Christian Hauptmann, Deputy General Counsel of RTL Group: He noted that CISAC was an organisation of collecting societies and not of authors directly and supported the Commission decision to break its control of multi-territorial licensing (MTL). Mr Hauptmann was in favour of MTL and noted the decision challenged collecting societies to find solutions to adopt a better use of MTL (i.e. where authors can gain too). He defended DG Comp’s decision not to form part of this panel – referred to earlier by the moderator Lisbeth Kirk – since it had given 120 days to collecting societies to consult each other on a position and this period was not up yet.