I was delighted to be a panelist at the annual conference in Brussels of the European Competitive Telecommunications Association (ECTA) on  Wednesday 19 November 2014.

The panel was entitled "What's next for copyright?" and panelists were asked to address European Union copyright policy moving forward into 2015, with a focus on the issue of cross-border availability of content.

As we are now at the beginning of the new year, and in eager anticipation of the European Commission's moves on copyright, the following text  is an edited version of my speech:

(See the full details of the panel  and the other panelists). 

First of all I’d like to thank ECTA for inviting me to speak today.

 I’d like to begin with a personal story about what’s wrong with EU copyright. A relative of mine  who lives in Germany – let’s call her Elise – was watching the BBC series ‘Little Dorrit'. She was not  watching  it on conventional TV, she was watching it on YouTube. However, YouTube blocked  the final episode. She was distraught because she wanted to know the ending. She would have paid. She called me, but  I wasn’t able to help he. Some time later I followed up to find out if she had got hold of it. She had  eventually watched it on a Chinese website.

 Elise is not a criminal. She would never knowingly break the law. She just wanted to watch a TV show, and the archaic structures of copyright law were meaningless to her.

 I think we all agree that copyright rules should reflect the cross-border dimension of Internet use. It has been a long time coming! Way back in 2005, almost 10 years ago, YouTube and Vodafone were  complaining bitterly to the Commission that the they could not offer content, because of the territorial structures held in place by copyright law. Those entrenched  business models  remain an obstacle, especially that of the collecting societies.  

The key to a successful resolution of cross-border content will be to address the business structures that underpin the distribution of audio-visual television programming, music and movies.  It’s important to remind ourselves that copyright is not really about copying – it underpins a global  distribution system for content. The restrictions that are meaningless to the internet user serve to control the money-flows between different entities that operate off-line.

 To see this as a one-size fits all would be wrong. We must separate audio-visual content from books. In book publishing, they are already going along a route  which is able to avoid the geographic restrictions of the old world. However, there are  new types of restrictions being embedded in the contracts  - so the problem does not necessarily go away, it just changes shape.

 Moreover, the Commission will have to consider access to content as well as copyright, and this butts up against the net neutrality debate.

 The Commissioner’s stated target to resolve these issues  in one year is very ambitious. I would suspect that there will be many difficulties in drafting a new legal structure, and we may well  be sceptical if  it is  possible. 

If the Commission succeeds in this aim, it will be presented as a public success.

However, the elephant in the room, it seems to me,  is enforcement. Enforcement is the other half of copyright and an equally important policy issue. Rights-holders will say there is no value in copyright without the power to enforce it. It of primary interest to the telecoms industry, since the proposed enforcement measures entail the broadband providers taking action.

 The broadband providers and other  Internet intermediaries are being asked to  block websites, filter   content,  and seize domains.  When we talk about blocking, filtering , and seizing domains it raises questions of censorship. These are questions of principle and not economics,  and finding resolution in the next year  – as the Commissioner has stated – is, I suggest, a tough call.

 The idea of convergence in this context is a fallacy. Copyright is predicated on exclusivity whereas the network business is predicated on open connectivity. The business objectives are inherently in conflict. Asking broadband providers to police content adds unwanted costs  and increases liability.  They have  - rightly in my opinion - refused blocking without a court order. 

If broadband providers do go the content route, then they must equally be wary of their liabilities.

Content intermediaries who pose a significant threat to the rights-holders business model have found themselves with long litigation battles. YouTube was sued, Megaupload was  indicted with criminal charges and their domains were seized, Aereo was sued. In all three cases, the allegations have been heavily defended and a  lot of money was thrown at that defence. When you read the case papers, the submissions from both sides involve complicated legal arguments and it is by no means clear cut who is right or wrong.

 The courts are struggling with a dilemma of principle. It’s about ‘ if I make a judgement for one guy, does the other guy’s business go under? ‘. Do the incumbent content businesses slowly die in the face of a new kind of competition? Or does innovation wither on the vine in the cause of  keeping the dinosaurs alive a little longer?

What options are there for the Commission? The Commission has already learned through the Stakeholder dialogues that this is not a game of compromise, rather it is a game of American-style hardball. The notice and action directive is a possibility for the EU’s current agenda. But I also understand that it was put on the back-burner because the rights-holders did not want a counter-notice.

 Finally, we must not forget that this is not just a simple two-way industry fight. There is a third party. These are the Internet users – the citizens. We saw in the ACTA protests how strong feelings may be awoken by a proposed copyright law.

 I come back to that notion of principle. In the context where blocking, filtering and domain seizures are being called for, the right to freedom of expression and the right to privacy are both engaged. There is case law and scholarly legal opinion to support this. These are very important rights that underpin our democracies. EU member states may not give intermediaries a general obligation to monitor. They must ensure that they can guarantee these rights if they want to implement such measures – as was underlined in the Internet Freedom provision of the 2009 Telecoms Package.  Moreover, the Commission is Guardian of the Treaties and it has a duty to guarantee that the right to freedom of expression is not infringed.

 In the context of copyright enforcement, the balance of rights is a three way exercise   -  the copyright holders  to protect their copyright, the Internet intermediaries to run a business, and Internet users and individual citizens rights to freedom of expression.

 If the Commission is looking for a speedy resolution, it will be  a very tough road ahead.

 Thank you!

--

The panel chair was Federico Poggi,  EU Affairs Counsel, Fastweb S.p.A.

The other  panelists were:

Maria Martin-Prat, Head of the Copyright Unit in the European Commission Communications Networks, Content and Technology General Directorate (DG CONNECT)

Ted Shapiro, Partner and Head of Brussels Office, Wiggin LLP

Philip Pilcher, Head of European Policy, BSkyB

Daniela Antão, Secretary General, APRITEL

 Thank you to all the ECTA delegates who gave me so much positive feedback afterwards.

 If you would like me to speak at your event, please contact me.

This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, 2015,  What’s Next For Copyright? My speech at ECTA Regulatory Conference 2014 Copyright Panel   in Iptegrity.com  6 January 2015 . Commercial users - please contact me.

Tags: ECTA,  Regulatory Conference, copyright, telecoms, isps, European Commission, Europe, freedom of expression, rights, intermediaries, 

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