Getting beyond the futile, damaging “war on digital piracy” and the “enforcement agenda”
“Classic copyright world´s stance is more one of sorry luddite resistance than enlightened engagement.”
Francis Gurry, Director General of World Intellectual Property Organization
Effective copyright laws need social credibility and broad public acceptance; this is not the case today. The fact that a large proportion of EU citizens “violate” copyright law in their daily practices with regards to music, film, software, photography and literature does not tell us that we have millions of “bad citizens”. Instead, this predicament informs us upon the shortcomings of noncompetitive markets, rigid models of collective management of copyright, archaic business models and unrealistic pricing structures.
Contrary to what some heavily-lobbied politicians might believe, strong copyright protection does not magically emanate from an “enforcement agenda” of ever-stricter penalties and criminal measures but instead can only be built from fair, balanced and socially understood laws and practices.
The principal challenge for the sustainable financing of culture, media and innovation is the establishment of viable business models that can thrive in the digital environment by creating flexible, shared networks that capture both individual and social imagination. To continue focussing legislative and social attention on “piracy” is to divert precious time and energy away from the important task of harnessing the full potential of the digital environment.
Recent international studies have shown that new copyright enforcement measures and laws have not been effective in lowering the general incidence of digital piracy. This is specially the case in the Global South where EU free trade agreements often aim at extending the European “enforcement agenda” to the rest of the world despite the fact that most citizens of the developing world cannot nearly afford over-priced cultural products dominated by a few Western companies. People strive to access culture and knowledge by any means possible; in much of the world “piracy” in not a choice but a necessity.
“Piracy” has not reduced cultural spending in the EU as revealed by recent studies. The amount of money spent by consumers in the EU on cultural goods, concerts and cinema has either maintained or increased in recent years. While there has been a decrease in expenditures on CDs, this has been compensated by an increase of other forms of cultural consumption including cinema, theatre, concerts and other events. Cultural expenditure has simply shifted from “physical consumption” to mainly “cultural experiences” either live or digital.
Social networks and Internet in general have become the key path for reaching an audience for emerging musical groups and other creators. Years ago many musicians went on concert tours in order to sell CDs while now they make a CDs to get concert engagements. In many cases live performances and growing on-line sales are starting to substitute income from royalties distributed by collecting societies.
For most new musicians the one thing worse than digital piracy is not being pirated at all, which means their music would remain known and without future possibilities. The question is not whether copying will exist or not but instead of how to take advantage of copying to create new, reasonable forms of income for creators.
The same industry and collecting groups pushing repressive copyright enforcement laws are holding up the barriers to new sustainable business models through rigid national laws that prevent economy of scale and continue imposing a system with strong intermediary power that damages the economic interests of both consumers and creators. Unfortunately, most collecting societies and industry oppose measures that will create a EU wide digital market, the end of exclusivity and the end to rigid national monopoly for licensing and copyright.
For most EU authorities the “stakeholders” are industry. Many EU politicians only listen to music companies and collecting societies and totally ignore consumers who want reasonably priced easily accessible quality cultural products. Often the EU policy making process on intellectual property at the European Commission has been captured by a concentrated group of interests representing major content producers. In contrast, the interests of consumers, digital rights activists and global social justice NGOs are only listened to but rarely taken into account in important European Commission policy proposals on copyright.
When people are able to buy on-line at very competitive prices, people do. The added value of quality, extra information and legality are important to many European consumers. Our choice is between one with massive piracy, higher prices and great intervention of intermediaries or a moderate level of piracy with lower prices, more direct relationship of creators and consumers with lower intermediary profits.
It is democratically questionable to legislate anti-piracy laws, and to export to them to the rest of the world, if they are not compatible with legal due process and other fundamental rights. In many cases it has been observed that it is impossible to enforce draconian new copyright rules without threatening civil rights and privacy. This is a lose-lose situation: the laws do not significantly slow illegal downloading while they do affect privacy, data protection and the normal workings of judicial guarantees.
Low cost music suppliers like Spotify and others offer one of many business models facilitated by Internet. Other possible different forms of financing culture are creative contributions, flat-rates, micro-financing, digital cooperatives and advertisement, among many others. There is no magic solution, no one size fits all. Only a combination of flexibilities, copyright reform and innovative marketing schemes can harmonize digital freedom and economic sustainability.
Some of the institutional actions needed are the following:
* Change EU collective management norms to facilitate EU wide licensing, the end of exclusivity of collecting societies and, in general, greater flexibilities to promote lower prices and more direct relationship creator-consumer.
* Introduce flexible “fair-use” mechanisms in EU to promote new business models and to create a more balanced and credible copyright environment.
* Maximize the use of copyright limitations and flexibilities toward the goal of fostering an environment of broad competition between legally authorized (e.g. licensed on reasonable terms) competitors; Approve the WIPO Treaty for the Visually Impaired.
* Exercise to the fullest competition law restrictions on the market power of content-holding firms, against price fixing in the digital spree and with strong duties to license on reasonable commercial terms and against licensing terms that restrict competition, cross-border commerce and unreasonable terms for artists.
* Approve an EU framework to permit easy access to millions of orphan works for research, new business models and social use.
David Hammerstein, TACD
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