The European Commission has quietly released the Final Report on the Content Online Platform. Does it serve the interests of serious policy-making for online film and music?
Full of grammatical errors and lacking in substantial understanding of the issues, the Final Report on the Content Online Platform poses a challenge to anyone seeking a serious policy proposition.
The report purports to present the findings of a 'stakeholder discussion' in relation to policy for creative content on the internet. It is presented on the DG Information Society website as an EU policy document. The policy issues are framed as online piracy, new
It is not clear whether the Commission has a mandate for intervening in business model design for Internet ventures - it's mandate would be limited to creating the economic and regulatory conditions to support online business models.
However, the Content Online Platform appears to confirm that the Commission has dropped its intentions to intervene in digital rights management and copy protection technologies. It also confirms that the Commission has put cross-border rights management on the back-burner - it has commissioned a study which will report in 2010.
On this basis, "regulatory intervention" would relate to "fighting online piracy" and the ‘protection of children' and these were the two topics which occupied most of the Content Online Platform discussion. Although the report avoids using the words ‘3-strikes' or ‘graduated response', I think it is foolish to pretend that "ensuring, in a sustainable way, respect for intellectual property rights in the digital age" followed by "stakeholders should better cooperate with each other to ensure respect for intellectual property rights" means anything else.
Interestingly, the Content Online Platform report suggests that ‘legal shortcomings or loopholes could be dealt with by public authorities' - stepping right into the Telecoms Package Amendment 138 debate (although it does not mention Amendment 138). There is also cavalier suggestion that protecting children could be addressed by the use of blacklists.
It recommends a third round of the Content Online consultation, this time to include consumers.
Overall, the Final Report on the Content Online demonstrates a lack of attention to detail. Here is an example: As regards cross-border rights clearance, the situation appears to be confused: in the music sector, legal incentives, such as the 2005 Online Music Recommendation adopted by the European Commission, have not met with approval from all stakeholders.
The Recommendation on Music Online (Music Online is the correct way to refer to it, not Online Music) is a legislative instrument, and specifically it is a soft-law instrument, but it is NOT an incentive. It does not need approval from stakeholders (since when did industry have to approve laws?), but it should be drafted in such a way that those to whom it is addressed can implement it.
The Final Report on the Content Online Platform further displays a weak understanding of business practice:
"Due to the "prototype" business model widely applicable to creative content in Europe, it is difficult to attract risk capital for new online business models and it is difficult in the short term to finance the transition to digital distribution with the revenues of physical sales as these are shrinking for several types of content - this does not seem to apply to videogames, that were "born digital", nor to books whose physical sales remain stable and even increase in some markets."
It is not clear to me what "prototype business model" is referred to here, nor why this particular business model faces greater difficulties in attract risk capital than other online or e-commerce business models. And if shrinking sales figures do not apply to video games or books, then which industries do they apply to, and what is the underlying reason for them shrinking? Not being "born digital" is not a sufficient explanation.
There are several grammatical errors. For example, ‘production of quality creative content is often very costly to produce' and ‘established business models are based on ... subscription models'.
The Content Online Platform was an industry discussion process within the European Commission's Content Online policy initiative which was consulting on Europe-wide graduated response measures, as well as cross-border rights, and DRM. However, it had seemed unlikely that this initiative would come up with any proposals on these topics in the near future. Its proposals on graduated response were effectively stalled by Amendment 138 in the Telecoms Package, which the European Commission was forced to support.
The feedback that I received from lobbyists indicated that the Content Online platform was an unstructured series of industry discussions with selected companies and dominated by rights-holders. I was told that minutes of one meeting were altered in favour of rights-holder demands, and also that no minutes were taken at other meetings. Some lobbyists, including large telcos, were not invited until they demanded a place, and industry associations were at first excluded. Specific comments were ‘a futile process' (rights-holder lobbyist) and ‘Reding's private think-tank' (telco lobbyist).
I am not convinced that the Platform report is representative of a Commission-wide view and the question should be raised as to where the continued push for 3-strikes within the Commission is coming from. The Content Online Platform was run by a Frenchman, Christophe Forax, a member of Viviane Reding's cabinet, whose office walls are covered in posters of the Cannes film Festival. The Commissioner's cabinet is a small, select group of officials who are her personal advisors, and they are separate from the administrative units who do all the policy work. It is my understanding that some individuals within the Cabinet, are known to support 3-strikes.
The Content Online Consultation 2008 got 700 responses, according to the official figure. It included responses from NGOs representing citizens, as well as the expected rights-holder and technology industry responses. I can confirm from my reading of the responses that they do outline the civil liberties issues related to graduated response and network filtering, and they do contain explanations of the problems with filtering in some depth. I can also confirm that not all of the submissions from artists' groups were in favour of 3-strikes. Most of the rights-holders did argue for 3-strikes, but some are considered more extreme than others, even by the standards of their own peers.
The European Commission has no excuse for not understanding the civil liberties issues. A third round of the consultation is arguably of limited benefit, until the Commission has publicly taken proper account of what has already been told to it in the first two rounds.
The European Commission's Final Report on the Content Online Platform only serves to demonstrate the lack of transparency and ill-informed nature of the Platform, and exposes it to the ridicule of the online community. One has to question the wisdom of addressing policy in a complex and highly polarised area by filling a room with hired guns for an afternoon's discussion.
It is a shame for those people on the Commission staff who do understand the issues, and would like to see the policy addressed in a professional way. It would be most unfortunate if they should be tarred with this very sloppy brush, and they would do well to drag-and-drop this report into the recycle bin.
Arguably, the Content Online Platform Report does not serve the interests of those who wish to see a serious and balanced legislative process in this very difficult policy area.
This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2009) Content Online Platform - mind the gap! http://www.iptegrity.com 29 June 2009.