Lobby groups oppose plans for EU copyright extension

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Tuesday, February 26, 2008

People from all over Europe came to the Electronic Frontier Foundation's party, which coincided with FOSDEM 2008.

The European Commission currently has proposals on the table to extend performers' copyright terms. Described by Professor Martin Kretschmer as the "Beatles Extension Act", the proposed measure would extend copyright from 50 to 95 years after recording. A vast number of classical tracks are at stake; the copyright on recordings from the fifties and early sixties is nearing its expiration date, after which it would normally enter the public domain or become 'public property'. E.U. Commissioner for the Internal Market and Services Charlie McCreevy is proposing this extension, and if the other relevant Directorate Generales (Information Society, Consumers, Culture, Trade, Competition, etc.) agree with the proposal, it will be sent to the European Parliament.

Wikinews contacted Erik Josefsson, European Affairs Coordinator for the Electronic Frontier Foundation (E.F.F.), who invited us to Brussels, the heart of E.U. policy making, to discuss this new proposal and its implications. Expecting an office interview, we arrived to discover that the event was a party and meetup conveniently coinciding with FOSDEM 2008 (the Free and Open source Software Developers' European Meeting). The meetup was in a sprawling city centre apartment festooned with E.F.F. flags and looked to be a party that would go on into the early hours of the morning with copious food and drink on tap. As more people showed up for the event it turned out that it was a truly international crowd, with guests from all over Europe.

Eddan Katz, the new International Affairs Director of the E.F.F., had come over from the U.S. to connect to the European E.F.F. network, and he gladly took part in our interview. Eddan Katz explained that the Electronic Frontier Foundation is "A non-profit organisation working to protect civil liberties and freedoms online. The E.F.F. has fought for information privacy rights online, in relation to both the government and companies who, with insufficient transparency, collect, aggregate and make abuse of information about individuals." Another major focus of their advocacy is intellectual property, said Eddan: "The E.F.F. represents what would be the public interest, those parts of society that don't have a concentration of power, that the private interests do have in terms of lobbying."

Becky Hogge, Executive Director of the U.K.'s Open Rights Group (O.R.G.), joined our discussion as well. "The goals of the Open Rights Group are very simple: we speak up whenever we see civil, consumer or human rights being affected by the poor implementation or the poor regulation of new technologies," Becky summarised. "In that sense, people call us -I mean the E.F.F. has been around, in internet years, since the beginning of time- but the Open Rights Group is often called the British E.F.F."

The interview

Cliff Richard's pension

Becky explained to us that she was in Brussels to gather support for a European movement against this proposal. She pointed out to us that compelling economic evidence shows that this measure will not help the E.U. single market, and she hopes that other Directorates will oppose it once they get wind of this fact. We asked Becky Hogge to tell us about the new proposal and why she thinks it is not a good idea.

From left to right: Becky Hogge (Open Rights Group), Erik Joseffson (Electronic Frontier Foundation), Brian McNeil (Wikinews) and Eddan Katz (EFF, right).

Becky Hogge: The legislation we are talking about is about the copyright term, as in the length of time a piece of, in this case music, remains in copyright, and in particular the term for sound recorders. Apparently the term for that in the European Union is 50 years. That means that after 50 years, sound recordings enter the public domain. That's the body of work that includes Shakespeare, Goethe, Bach, Beethoven, ... the cultural heritage of human culture."

In America the term is 95 years but in the U.K. the term is 50 years, and those in the recording industry and the performer's union were getting together and going to the European Commission and saying 'we would like the terms extended'. Now, in the U.K. we knew about copyright term extension. There's a process by which governments say: 'When this cartoon was drawn, we said that that could be in copyright for 45 years, but now it's about to fall out of copyright, so we'll give you another 45 years, or we'll give you another 10 or another 20... and continually stopping those pieces of our cultural heritage from entering the public domain, along with their brothers Shakespeare, Mozart and Beethoven, like an afterlife in the public domain where we knew they could be mixed, they could be shared, and that they become a public part of our culture.

The reason why I think this is unfortunate, is because is actually, it's very hard to see who gains from extension. Well, it's very easy to see who gains from copyright extension on the one hand; those that are still mastering cultural iconography, you know, The Beatles back catalogue or if you are in possession of the Elvis back catalogue, or whatever it is, they're all going to gain substantially from that. But if you think about what other sound recordings that were made at that time, all the other bits that were written, all the other plays that were written, not all of them are going to be successful 50 years after they were laid down, and it's only a tiny minority of tracks that are going to be commercially successful.

Behind all of this info about copyright law, you need to know about the basics. Copyright law is about a balance, about a trade-off. Artists put a lot in to creating a piece of work, and once that piece has been created, in a sense, it's very easy to replicate. So, Cliff Richard sings a song, and it's very easy once he has sung this song, it's laid down to be copied and copied and copied, unlike the making of a table or a shoe where you have to go back to the original creator to get a new pair. Copyright is a kind of monopoly that is granted to the creator so that they may get the revenue that they need, enough to incentivise[sic] them to make the initial work. So copyright is a trade-off between the interests of us, the public, the audience, human beings who need culture to survive and thrive, and artists who in order to make this culture need an incentive. In the law it is said that for a certain length of time, you have the rights to exploit this cultural product that has come from your loins and after that, it enters the public domain, and everyone enjoys it without restrictions.

What you've got at the end of the day with copyright term extension is basically ... rent seeking by special interest groups lobbying governments to change the law in order that they may economically gain directly.
-Becky Hogge, Open Rights Group Executive Director (left).

Extending that term has a lot of implications. The first question that comes up is, you say: why? Are we going to incentivise Cliff Richards' to record any more tracks in 1958? Clearly not, because it's not 1958 any more. And then you ask yourself the second question: are you going to incentivise artists who are recording tracks now to record more tracks, because they have more incentive, because their monopoly over these neighbouring rights will be knocked up? Economists have looked at this and they say, 'any rational act of making a decision does not look at what's going to happen in 50 years time, let alone 95 years time, we simply don't do this. So what you've got at the end of the day with copyright term extension is basically, and I hope this is not too bold, it's basically rent seeking. It's rent seeking by special interest groups lobbying governments to change the law in order that they may economically gain directly.

This is were you get to the sort of Cliff Richard argument with pension. Cliff Richard is a recording artist who didn't write his own songs and will stop receiving royalty. You've got Cliff Richard saying 'copyright is a pension for us'. There are artists that are saying 50 years after they've started their career, started recording, they're old, they're pensionable aged, they need their income and this royalty income is stopping. I simply don't like that argument because every other citizen of the E.U. has contributed to their pension during their working life. This argument for me is really designed to do something very clever, which is exact sympathy from the general public for people who are already very rich. If you're still getting royalties after 50 years, you are a very successful artist indeed.

Eddan Katz: There's a strategy here that needs to be named, by copyright interests, major entertainment companies that have most to benefit from the extension of copyright without any incentive added; it's a strategy to section it off, to make a story, and pinpoint one segment with that story in trying to justify an overall extension of copyright, which is particularly meant to profit and to remove works from the public domain that were set to be there. And also to really blind the pockets, and change the law in order to be able to raise the rent. It's also being justified under harmonising; harmonising is used to justify a ratcheting up, it generally means more exclusive rights to be granted, and layered on top of existing exclusive rights. It's not meant as harmonisation is intended to be, and as the European project is supposed to be, to find a way to create real markets. It's not to justify the continuing increasing of exclusive rights as one specific theory about incentivising creativity when we see so much evidence that there's a lot of creativity coming out of systems outside of long term exclusive rights.

Perpetual patents?

We raised the point that many common people also see copyright as a good thing and something that supports artists, while copyright violation has been said to have led to huge financial losses for the music industry.

If the music industry continues to push this side of the bargain, all they do is to serve to grow people's disrespect for the law even more, such that nobody wants to respect copyright any more.

—Becky Hogge (Open Rights Group)

Erik Josefsson: Copyright is like tax: 'Taxes are good, so more taxes are better'. The man in the street would say 'No'. 'Okay, so you don't want any taxes?' 'Oh no, I want taxes', the man in the street is completely aware of its value, you have to have a common financial structure. The tradition of copyright, what is the purpose of copyright, is to strike a balance, to have a thriving cultural life.

Becky Hogge: If you think about what copyright does for the internet culture: if we didn't have copyright, we wouldn't have Creative Commons. Copyright is an incredibly sensible piece of law, and in fact serves to benefit a lot of what goes on online in the way that it's been used in things like free and open software, in things like Creative Commons. These things wouldn't exist without the framework of copyright law. I'm always very careful to say that copyright law is a benefit to society, but I think Erik's comparison to taxes is spot on: it's not about black and white.

Are the record companies sitting on their back catalogues because they can no longer earn the same income in the digital age? I think if they are doing that, I credited them with more intelligence than that. Because number one: what's the point of having copyright when everyone is infringing them? It doesn't matter if we have one record of the Beatles or if we have 500 records if everyone shares the one copy of the Beatles that we have already. So I would imagine that's not why they're doing this. And number two, and I think more fundamentally, actually what people inside the industry that I speak to are realising, is if they continue to push this side of the bargain, all they do is to serve to grow people's disrespect for the law even more, such that nobody wants to respect copyright any more. If we see copyright as a law that is written on behalf of the recording industry for politicians, then -and this is not my point, this is Andrew Gowers' point- you have to make the law something that people can understand and respect. You do that by making the balance right. Soon the recording industry, or some of them will see that if they continue doing this, they're going to hurt themselves more.

We also noted that the term public domain seems to have a more profound meaning in the United States, and that many Europeans don't even know the term.

After 95 years, is RCA really going to want to give up the Beatles then? Or will we get another extension to 150 years, or to 200 years, or to 250 years? What would the world look like if everything was in perpetual copyright or in a perpetual patent? What would have happened if the invention of fire was under a perpetual patent? I think we'd all still be living in caves.

—Becky Hogge, Open Rights Group

Eddan Katz: European civilisation had a lot of innovation and creativity before the legal mechanisms of copyright and patents were produced. There's been a long history of productivity, innovation and creativity that has happened without a specific exclusive rights system. Talking about culture in Europe and that depth of history: the degree of which people do create and write on the shoulders of giants, they work off the great works that we know in history, build off of what was before, reference it and build on it, and that's what makes it meaningful -that's something that I think is particularly something to defend in Europe. You said that the terms public domain are foreign to Europeans: I'm actually trying to point out that the public domain existed in Europe before the concept of America existed.

Becky Hogge: If you imagine every time there was a school play, the nativity play, or the works of Shakespeare, or a concert was put on by Mozart... people have been taking advantage of the public domain a lot more than they realise. There's so much that people do with the public domain every day, but they just don't realise it. This is something I've thought about for a long time: I'm not a lawyer, I'm not a creator, I'm not a programmer, and so what is it about this debate that has gotten me into it. It's this idea of what it would be like. Sound recordings are a good example: we didn't really have great sound recordings until about 50 years ago. I see this move now to extend the term in sound recordings as just one of many. After 95 years, is RCA really going to want to give up the Beatles then? Or will we get another extension to 150 years, or to 200 years, or to 250 years? What would the world look like if everything was in perpetual copyright or in a perpetual patent? Even though we all accept that artists need to be given incentive, I think all fair humans have a natural ability to want to share knowledge. What would have happened if the invention of fire was under a perpetual patent? I think we'd all still be living in caves. I think there's actually something in the balance between keeping stuff and sharing that keeps us human and keeps us developing and civilised and that's my best argument at the moment towards the man on the street.

The fight moves from the U.K. to Europe

We asked Becky Hogge to tell us the history behind this proposal from a U.K. perspective.

Becky Hogge: Where this started was back in 2006... well in fact even before that, the Labour government in the U.K. made a manifesto pledge to examine the issue of copyright term extension in a previous election. What that turned into is called the Gowers review of intellectual property. It actually got the most submissions to an independent review ever. There were a lot of submissions from the recording industry, and if I remember Andrew Gowers' words specifically, he said they took the prize for the amount of submissions they got from the recording industry.

They were saying: we want this copyright extension now. I think what's motivating it is a golden age of recorded sounds, seminal soul, rock and roll, reggae recordings, are about to enter the public domain; the recording industry recognises it, and recognises that actually they probably didn't plan for this to happen in their own business models, they're going to lose a small percent of their income.

The record industry submitted lots of evidence to the Gowers review of intellectual property, but public interests groups set in too. An international group called the Adelphi Charter wrote to Gowers, and they had been sponsored by the Royal Society of Arts, which is the society that promotes arts and culture in the U.K. They had come up with very convincing arguments why you should never extend the term of these exclusive rights retrospectively, much like the arguments that I've given you just now. They got submissions from the Open Rights Group which were sent in its infancy, but also from librarians, from educators, from public domain record labels, from the issue market, from people who needed a base of copyright-free public domain recorded sounds to achieve their creative goals, they got submissions from artists, ... they got submissions from a very wide spectrum of people.

In the end they got so many submissions that they said 'we can't do this by ourselves', and they went to a group of economists, and they said 'look, please, can you look at this for us?', because the Adelphi Charter says that the economic evidence really needs to be there before you make any retrospective change of term. So this group of economists came back and reported back to the Gowers review. They said there was a weak economic case for extending the term, that is that minorities would benefit from this, as we know the recording artists who are still popular 50 years later, the managers of those back catalogues. But there was a very strong economic case for not extending the term, and that was based on the money that was going to come out of consumers' pockets for these recordings, that was based on the costs to follow on innovators, people who remix content, the costs to archivists, ... the cost to culture as a whole. And this would negatively affect the balance of trade. And so this meant that the Gowers review of intellectual property documented that A) copyright term should not be extended, and B) copyright term should never be retrospectively extended, ever. And the U.K. government accepted this in full. And the Open Rights Group and all the other people who had submitted to this evidence were deeply, deeply satisfied with that result.

But we knew that it wasn't going to end there. The recording industry, when this announcement came out -in fact it was leaked a week before it came out- they made it very clear that they would take their fight to Europe anyway. They continued to get politicians on their side in the U.K., they lobbied the culture committee, it's been a history of quite hard lobbying. We knew it was going to happen.

Still, last week when commissioner Charly McCreevy, who is the commissioner of the Directorate General Internal Market, came out and said I propose to do this, that we extend the copyright term of sound recordings from 50 to 95 years. We were surprised that it had come that quickly, and we were also surprised that, well, the commission basically has a mandate up until the beginning of next year and then it's re-elected, so there is very little time for this to become law before the commission gets a new mandate and all that is lost. So we were quite surprised.

Reclaiming democratic processes in the E.U.

Becky Hogge: One of the reasons I'm in Brussels this week, and specifically this weekend at FOSDEM, there's going to be a lot of people from all over Europe and the world who see different potential for incentivisation models for creativity that aren't based on contributor's rights. It's to start a Europe-wide campaign to show that there is political as well as theoretical and factual opposition to this taking place. Because it's very easy for copyright holders who are concentrated in one place, it's very easy for them to gather their resources, to take those resources to show political support. But the general public and the people who stand to lose out from this move are a very diffuse set of people, and it's much harder for them to get together and oppose something like this. What I'm hoping is that we do spread the word about this issue, and about what it means for not only for creativity and culture, but also in a sense for the way the laws get made in Europe. Because, you know the Gowers review presented compelling economic evidence, the D.G. Internal Market has compelling economic evidence that this isn't right; they got in touch with a place called IVIR in Holland [Institute for Information Law, University of Amsterdam, ed.], and they came up with an even stronger case against copyright term extension. And yet the evidence is being ignored.

Erik Josefsson: The public interest is to have a proper discussion adapted to problems of democracy, transparency, and that the decisions are taken and prepared in a decent way.

Becky Hogge: And I think that's even more important when you get to issues that centralise on technology, because often the media and politicians don't have access to independent advice about technological changes. Certainly in the U.K. context, we find that politicians and the media don't often understand the technologies but comment anyway and the result can be poor law and a poorly informed public. There have been instances were the government have only been given technical information and input from private interests.

Erik admitted he was disappointed when he compared the way laws are currently made in the European Union to his experience with Swedish politics.

It's one of the worst proposals in a long time, and still it's being proposed, and still it will have members of the European parliament defending it. This is to me, outrageous! I cannot understand, I cannot accept that this is Europe. If the man in the street could see what is happening, he would be appalled. The man in the street expects people to be decent, up until the highest levels of decision making, and unfortunately what we see here in Brussels, is the opposite in many cases.
-Erik Josefsson, Electronic Frontier Foundation (right)

Erik Josefsson: The way things were discussed, prepared and legislated in Sweden before was like a dream compared to what is happening now. The expert advice comes from a limited sector of the spectrum of ideas. In the Swedish tradition, it was the responsibility of the legislator to listen to everybody. I see that tradition is basically wiped away, not necessarily intentionally, but the European project is changing fundamentally in democratic processes and structures, and very fast, in such a way that it's a challenge for any NGO that interacts with European policy makers.

Structurally, you have an inter service consultation, but you really don't know how to be able to interact with that process. [To Becky, ed.] You're envisioning kind of marching in the streets thing, or at least an online petition campaign of the size of a million signatures, ... I'm saying that it's unfortunate that the respect for rational discussion has been deteriorating to that extent that you have to counteract bad policy with campaigns in that sense. I would like to just underline the problem we have with the lack of discussion, which also means the knowledge distribution within society that finally would reach the political layer. In this case, understanding is close to zero in many segments of the political spectrum.

Eddan Katz: With the lack of democratic processes, I think what's important to demonstrate from the general public in a letter-writing campaign, in making your voice heard, is a reclaim culture, to not allow that term to be captured by people who have very specific interests of how that work should be interpreted, and to reclaim that culture, the culture that's now exploded in the internet age of all of us being able to produce things and publish things and make them available to the world instantaneously and without restrictions. That's the culture that needs to be reclaimed, and that's the feature here that needs to be seen. There's no economic justification -to just return to the copyright term extension. Something has already been created, so since it has already been created, there's no need incentivise creating it. You need to reclaim the democratic processes of Europe, you need to reclaim the term culture.

As you point out [to Becky, ed.], the danger is that there's a very sophisticated campaign to describe certain people with the term piracy, and to describe those people who are advancing culture by appropriating it and adding to the way we produce and act as knowledge creators, to describe those people as thieves or worse. There is an opportunity to describe an alternative vision of what European culture is, what's important about it, rather than to limit the interpretation of what that means for the future in a globalising world to private interests with very specific powers in the European institutions. I think our expectations should look towards the future, and the regular person should welcome and be excited for the opportunities that are made affordable by the internet, rather than the momentum and trend of legislation and political effort now, that try to lower those expectations. That's were the focus should be in thinking about these issues: what is made possible by the new technologies, and not how existing companies can take advantage of controlling the law regarding the internet.

Erik Josefsson: The copyright extension proposal is a perfect example: there's no justification from a legal point of view, from a financial point of view, from a cultural point of view. It's a pure land grab. It's one of the worst proposals in a long time, and still it's being proposed, and still it will have members of the European parliament defending it. This is to me, outrageous! I cannot understand, I cannot accept that this is Europe. If the man in the street could see what is happening, he would be appalled. The man in the street expects people to be decent, up until the highest levels of decision making, and unfortunately what we see here in Brussels, is the opposite in many cases.


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