Final debate on the Telecoms Package

Telecoms Package debate in Strasbourg

Today the European Parliament held the final debate on the Telecoms Package. It will be voted in plenary tomorrow (and will be adopted then).

I got to hold a speech for two minutes in the debate. This is what I said:

We in the Swedish Pirate Party support the compromise that was reached on the Telecoms Package.

It is not perfect, and it is not everything we wanted. But it is a good step in the right direction.

Nobody should be shut off from the internet, at least not without a prior fair and impartial procedure, that includes the right to be heard and respects the principle that you are innocent until proven guilty.

The compromise sends a strong signal to the member states that legislation like the French Hadopi law or the Mandelson measures in the UK are not acceptable. It is now up to activists in France, the UK and other member states to make sure that their governments respect this on the national level.

For us in the European Parliament, this was just the beginning.

We need a proper Bill of Rights for the Internet, that makes it absolutely clear that the Internet is an important part of society, where our fundamental civil liberties must be respected.

This includes the right to information freedom and the right to privacy, as specified in the European Convention of Fundamental Rights.

We need net neutrality, and we need a policy that says yes to the fantastic possibilities of the Internet and the new information technology.

Europe has a unique opportunity to show leadership and set an example in the world for a free and open Internet. This is a chance we should take.

The road ahead is open.

This compromise is on a first step, but it is a step in the right direction. I encourage all colleagues to support it.

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Andra bloggar om: piratpartiet, eu, politik, informationspolitik, telekompaketet

A collecting society’s views on orphan works

GESAC, European Grouping of Societies of Authors and Composers

I got a mail on the subject of orphan works from Véronique Desbrosses, who is Director General of GESAC, which is an umbrella organization for collecting societies. She wanted to clarify the position of the collecting societies after the hearing on orphan works that the European Parliament’s legal affairs committee JURI held on November 10.

She has a very different view on the subject than I do, so I will quote the entire mail before giving my comments. Ms Desbrosses has confirmed that it  reflects GESAC’s official position.

She wrote:

Dear Mr Engström,

I would like to react to certain statements made at the seminar on orphan works organized by the Legal Committee on 10 November.

Amongst other things, it was claimed that entrusting authors’ societies with the management of orphan works would give rise to a conflict of interest because it would not be to their advantage to identify the authors. The argument being that the fewer authors they found, the greater the financial benefit to themselves (by keeping the remuneration paid for such works). This could not be further from the truth, because authors’ societies have no commercial purpose and so there is no possibility of profiting financially. The full amount of all copyright remunerations collected by management societies (less any cultural and social deductions provided for in their founding instruments or by law) are paid out to the authors.   Collective management societies are best placed to find the holders of rights in orphan works, not least thanks to the databases they keep.  The point also has to be made that collective management largely precludes works becoming orphaned. The number of orphan musical works, for example, is very small because almost the entire repertoire is managed collectively by authors’ societies.

The libraries also called for an exception for the free use of orphan works. We do not see this as acceptable, since it would effectively draw an arbitrary distinction between works whose rights holders are known, and works whose rights holders are as yet unidentified.  What possible justification can there be for allowing a work to be used free of charge on the pretext that its author has not yet been identified? Not to mention that making such a distinction would be apt to undermine the market by encouraging users to use only orphan or purportedly orphan works in order to avoid paying remuneration.

I trust that this information will be of interest to you.

Yours sincerely

Véronique Desbrosses

Secretary General
GESAC, European Grouping of Societies of Authors and Composers

Here are my comments on the mail:

Amongst other things, it was claimed that entrusting authors’ societies with the management of orphan works would give rise to a conflict of interest because it would not be to their advantage to identify the authors.

Exactly.

This could not be further from the truth, because authors’ societies have no commercial purpose and so there is no possibility of profiting financially.

The whole purpose of collecting societies is to collect money for the benefit of their members. To claim that they have no possibility of profiting financially is just ridiculous.

Collective management societies are best placed to find the holders of rights in orphan works, not least thanks to the databases they keep.

When a collecting society has the author of a work in their databases, it is not an orphan work. We are not discussing the works where the authors are known and have entrusted a collecting society with the task of managing the rights. Those works are not orphan.

An orphan work is a work where the author has not registered it with a collecting society, and where the collecting societies have no rights at all.

The point also has to be made that collective management largely precludes works becoming orphaned.

No, not at all. Collecting societies have been around for over a century. If the existence of collecting societies would ”largely preclude” works from becoming orphan, we wouldn’t have had the problem of orphan works in the first place.

But we do. This is why we are discussing it, why the European Commission wants to solve it, and why the legal affairs committee JURI organized the November 10 hearing in the first place. To deny that the problem exists is just silly.

The number of orphan musical works, for example, is very small because almost the entire repertoire is managed collectively by authors’ societies.

Collecting societies exist for all kinds of works, from books to music to photographs, and have existed for a long time. Yet the problem of orphan works is very real. If you look at photographs instead of music, probably the vast majority of all photographs taken during the 20th century fall in the category of orphan works.

The fact that the rights owners are known for most recorded music is not because there are collecting societies, but because 80% of the rights are owned by the four major record companies.

What possible justification can there be for allowing a work to be used free of charge on the pretext that its author has not yet been identified?

What possible justification can there be for not allowing a work to be used free of charge if the author has not even bothered to register his claim to the work?

It is not at all unreasonable to require that authors who want to control their works and get money for their use, at least register that claim so that people know where to send the money. Why shouldn’t they?

Not to mention that making such a distinction would be apt to undermine the market by encouraging users to use only orphan or purportedly orphan works in order to avoid paying remuneration.

Here the mask falls, at the very last sentence of the mail. The collecting societies don’t want our cultural heritage from the 20th century to become available. They think that this would ”undermine the market” for new works.

Whether this is a relevant fear is not the point. Personally, I feel absolutely confident that there will be a demand for new cultural works even if we manage to make our cultural heritage from the 20th century available to everybody.

But the important thing is how the collecting societies themselves see it. They have no interest in solving the problem of orphan works.

If they cannot get money for the works that they have no rights to, they prefer that the works remain unavailable in a legal limbo, so as not to ”undermine the market”.

I am very grateful to Ms Desbrosses for stating this so plainly on behalf of the collecting societies that she represents.

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Previous articles on orphan works:

Orphan works hearing in JURI
A librarian’s views on orphan works

Andra bloggar om: piratpartiet, eu, politik, informationspolitik

A librarian’s views on orphan works

Elisabeth Niggemann, German National Library

Elisabeth Niggemann is Director General of the German National Library, as well as chairman of the foundation behind the Europeana project. She was one at the speakers on the hearing on orphan works that the European Parliament’s legal affairs committee JURI organized on November 10, 2009.

She had very interesting things to say on the subject of orphan works, and the problems that our current copyright legislation create for libraries that want to make their collections available in the digital age.

I think we should listen very closely to what librarians have to say on these matters. Public libraries have several hundred years of experience of doing exactly what we want to do now: to preserve our common cultural heritage, and to make it available to researchers, teachers, students, creators, and the general public. The perspective that librarians, archivists, and museum curators bring to the table is a valuable one.

In connection with the hearing in JURI, Ms. Niggemann also presented the views of Europana and the German National Library in a short paper titled How to deal with Orphan Works in the digital world. It is well worth reading in its entirety, but I will summarize it by giving some quotes from it here.

Ms. Niggemann of Europana and the German National Library writes:

Today’s users are already – and future users will be even more – used to finding everything on the internet. “If it’s not on the Web, it doesn’t exist at all” is their credo and especially librarians have already experienced the consequences of this attitude.

What is on the Web is the material that is published and distributed in electronic form as born digital works by commercial publishers and other publishing bodies or individuals. What is also slowly getting on the Web is the digitised cultural heritage. The digitisation progress is slow because there is little extra money in cultural institutions for digitisation. There is Google of course, digitising big libraries. But all in all progress is slow and only brings out-of-copyright material to the Web. If there are exceptions to this rule, they are either disputed – as is the Google example – or they are highly time consuming and therefore extremely expensive, because of the necessary rights clearance procedures that have to be worked through before digitisation.

More often than not, the rights clearance is more expensive than the actual digitisation. And very often clearing the rights is even not possible – or at least not possible within an economically justifiable approach. For a mass digitisation approach the original rights holders or their heirs or other transferees are practically speaking unlocatable. This is, as we all know, where we begin to talk about orphan works.

Depending on the definition of “orphan works” and depending on the practical meaning of “diligent search”, the percentage of expected orphan works among in-copyright works and the costs to prove that they really are orphan works will vary greatly. Variations in costs and in percentage are also significant depending on the country of origin of the work on the one side and depending on the cultural sector on the other side: rights clearance for books is different from rights clearance for music recordings, films or photographs, for instance, and some countries have a better infrastructure for rights clearance than others.

Taking all together, what we see is a “black hole of the 20th century” in digital libraries. There are the recent, born digital works, that are offered by publishers and domain specific distributors or that can be found in repositories of research facilities and cultural institutions and there are the historical cultural heritage works, digitised from out-of copyright physical copies from the shelves and holdings of cultural institutions. Between these two worlds of content, there is a vast empty space that will lead to a digital amnesia of most works from the 20th century – if no action is taken to fill the “black hole”.

Ms. Niggemann then describes in some detail how complicated and expensive it is to clear the rights for digitizing a work under current copyright regime, giving the situation in Germany as an example. She continues:

There is absolutely a need for a European-wide solution. A European-wide solution is actually only a first step. Digital libraries within national or even EU-borders are not realistic because there will always be ways to get access across borders within the Web.

…

Legal certainty across Europe is required to provide a strong basis for libraries to digitise orphan works. It is necessary to introduce clarity around the digital nature of library exceptions. In order to achieve legal certainty for all stakeholders, these exceptions must be legally binding in all Member States.

The pending settlement between Google and the AAP clearly shows what kind of situation can arise: Large quantities of out-of-print works of European origin that are in-copyright in the EU, but out-of-copyright in the US, are being digitised and made available in the US only. Such an imbalance in access to historical and cultural information needs to be urgently addressed by the EU, in part, through exceptions to copyright law.

At this point I would like to quote from the CENL (Conference of European National Libraries) statement on the Green Paper – Copyright in the Knowledge Economy (2008):

“Clarification in law is the role of the legislator and should not be left to interested parties to negotiate as it is the prime role of government to arbitrate where the balance in copyright should lie. Only legislation can guarantee that the interests of the creator are balanced with the public interest, for the good of wider society. It is not acceptable that vital issues such as the flow of knowledge in the information society are simply left to the vagaries of soft law or private negotiation.”

…

“These questions relate to the role of libraries in the digital world. … as repositories of human knowledge, in a society where information is becoming synonymous with economic growth, the role of libraries in the digital world must be strongly supported. Given the large public financial investment in libraries, it is not acceptable that the role of a library as the prime source of aggregated scholarly information is undermined by incomplete and piecemeal legislation.”

With respect to orphan works, CENL’s recommendation was: “Legal certainty across Europe is required to provide a strong basis for libraries to digitise Orphan Works.”

And, to end on a personal note, I think that a modern copyright framework which applies to the new digital world is urgently needed. It is crucial that this modern framework considers the different demands of each stakeholder. To start with orphan works and the need of bringing them out of the “dark” into the open, of making them available to a wide public via the Web, would be an excellent beginning.

Well said, says I.

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Andra som skriver om Orphan Works och digitalisering: SvD, Bokens framtid, Oscar Swartz, DN, Svensson, En annan sida, Anders S Lindbäck, Niklas noterar, Niklas noterar

Andra bloggar om: piratpartiet, eu, politik, informationspolitik

Orphan works hearing in JURI

Europeana

Last Tuesday, there was a very interesting workshop on orphan works in the EU legal affairs committee JURI.

An orphan work is a work that is still in copyright, but where the rights owner is not known or cannot be found. It can be a book, a song, a film, or a photo, or any other kind of work that falls under the copyright legislation.

Orphan works present a big problem for anybody who would want to use them. If you just go ahead without getting a permission, you run the risk that the rights holder suddenly turns up and sues you for a large amount. As we all know, courts can be quite prepared to set the damages for even minor copyright infringements to pretty astronomical figures. In many cases, this is simply not an acceptable risk.

But since there is no known rights holder that you can ask for a license, there is nothing you can do about it. No matter how valuable you think it would be to share that work with the world, there is no way to do it without breaking the law and exposing yourself to a great financial risk. The orphan works are effectively locked away by the copyright system.

This is not a small or marginal problem. A large part of our common cultural heritage from the 20th century falls into this category. About 75% of the books that Google want to digitize as part of their Google Books initiative are out of print, but still under copyright.

Even if it is theoretically possible to find the rights holders for many of these books by making a thorough investigation in each individual case, it simply becomes unfeasible when you want to do mass digitization.

And Google Books is not the only project to digitize works and make them available, even if it is the one that has attracted the most attention lately. There is an EU project called Europeana with a similar goal, as well as the open initiative Project Gutenberg. All of these are being held back by the problem of orphan (or semi-orphan) works.

Unless we do something, most of our common cultural heritage from the 20th century risks getting lost in a black hole before it becomes legal to save it for posterity. The Commission wants to address this problem, and solve it as quickly as possible. This a very good thing, and an initiative that we should support.

The workshop in JURI started with some introductory remarks by JURI chairman Klaus-Heiner Lehne (Christian Democrats, DE) and Swedish state secretary Magnus Graner, who was in Brussels for the event.

The next speaker was Tilman Lüder, who is head of the unit for Copyright and Knowledge-based Economy at the Commission. He gave a very thorough briefing on the subject.

There are essentially three possible solutions to the problem:

1. Do nothing, and accept that most works that are younger than about 150 years cannot be digitized,
2. Introduce a statutory exception on the European level, to permit the use of orphan works, or
3. Introduce a system based on collective licensing.

If we rule out option 1 as being unacceptable, the choice stands between a statutory exception and collective licensing.

Collective licensing means that you legislate to the effect that for works where the rights holder cannot be found, management of the copyright is taken over by a collecting society, who will then be able to negotiate on behalf of the (real) rights holder, and collect money that will be given to the rights holder if he should turn up at a later date.

In a completely unsurprising manner, this is the solution favored by the collecting societies. Since, after all, most of the rights holders will never appear, the collection society can look forward to quite a lot of money that will never be claimed by anybody.

Even though the collecting societies explicitly do not have any rights to the works (which are, after all, orphan), they still want to be able to collect money from anybody who is interested in making these works available as part of our common cultural heritage.

At the workshop, this position was represented by Tarja Koskinen-Olsson, from the International Federation of Reproduction Rights Organisations (IFFRO). This is an umbrella organization for collecting societies in various countries.

A statutory exception means that you legislate to make the orphan works available directly, according to rules that are specified in the exception. This is the solution that the public libraries and their organizations prefer. At the workshop, this view was represented by (among others) Elisabeth Niggemann, representative of Europeana and director general of the German National Library.

In order to be effective, the exception would have to be introduced at the European level, so that works that have been digitized in one member state may be made available in other countries as well. If the exceptions were to be on the national level, this would not be enough to create a single European digital market and make European culture available to us all. But a European level statutory exception could untie the knot.

Regardless of whether the solution that is ultimately chosen is based on collective licensing or statutory exceptions, there is a need to create a searchable register of copyrighted material, so that it becomes possible to determine the status of a work, and find the rights holders if they are known.

There is an initiative called ARROW, which stands for Accessible Registries of Rights Information and Orphan Works. The idea behind this register is to document works that have been established to have orphan status, after a diligent search for the rights holders has been made without success.

The problem with this approach is that it normally is quite a burdensome task to carry out this diligent search for each work. Many older works (perhaps the majority) simply do not have enough commercial value to justify such a search, even if they still have cultural value to at least some people, who would be interested if they were made available.

A much better solution would be to have a register where rights holders can register the works that they have an interest in upholding their copyright on.

The statutory exception would then specify that for works that were published more than, say, 10 years ago, the rights holder must register the work if he wants to continue collecting royalties on it. Otherwise, the work will be considered to be free to use for anybody.

If the rights holder for a work that is older than 10 years later turns up he would be allowed to register his rights, but he would not have the right to demand compensation for use of the work during the time when it was not registered. This rule is necessary to provide legal certainty.

Since I am a member of the JURI committee, I was allowed to give my comments during the workshop, and I expressed my support for a statutory exception along these lines. Except for the representative from the collecting societies, I got the impression that most of the other parties involved would be happy with a solution like this.

For companies and individuals that hold the rights to commercially valuable older works, it is a very small burden to register the work and provide a public record of whom to contact to negotiate for licenses. And for the millions of works from the 20th century where the rights owners no longer have an interest, at least not commercially, they will automatically become available for digitization and other use as part of our common cultural heritage.

In my mind, this would represent a true win-win solution that can be implemented very easily and fairly quickly by an EU initiative. This is an issue that needs to be resolved to bring Europe into the information age in a sensible way.

Let’s go for it.

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Andra bloggar om: piratpartiet, eu, politik, informationspolitik

Question on ACTA and the Telecoms Package

The EU Commission, Brussels

I am planning to ask a written question on ACTA to the Commission, and ask if they intend to respect what was agreed in the  Telecoms Package.

Here is a draft for the question:

In the recently concluded conciliation on the Telecoms Package, it was decided that no measures restricting end-users’ access to the internet may be taken unless they are appropriate, proportionate and necessary within a democratic society, and never without a prior fair and impartial procedure that includes the right to be heard and respects the presumption of innocence and the right to privacy.

Are the proposals currently being discussed in the Anti-Counterfeiting Trade Agreement (ACTA) negotiations fully in line with the provisions that were agreed in the conciliation on the Telecoms Package? If not, when and how will the Commission redress any incompatibilities of the ACTA?

Comments? Are the any ways to sharpen the question, or make it more difficult for the Commission to avoid giving a proper answer?

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Andra bloggar om: piratpartiet, eu, politik, informationspolitik, telekompaketet

Record companies lose, artists gain from file sharing

”The graph the record industry doesn’t want you to see” according to Telegraph editor Shane Richmond. Here it is:

Music industry revenues in the UK, 2004 - 2008

Times Labs has made an analysis of the music market in the UK for the last five years, based on data from the UK collecting society PRS.

In the graph, the red field is what the record companies make. The three blue fields are what the artists make. The conclusion is very clear:

Record companies are making less, artists are making more, and the total amount is constant.

The reason record companies are making less money than they used to is probably due to file sharing. I’m happy to concede that. File sharing is a much better way to distribute music, so the service that the record companies provided is less and less in demand. It is only natural that they are in decline.

The best thing about this, is that the artists are making more money. People are spending just as much as they used to on music, but the record companies are getting less. Instead, the artists have increased their share to soak up the money that has become available.

More money for the artists, less to the record companies thanks to file sharing.

This is an excellent development, and something we should embrace. File sharing should be legalized. The artists are the ones that have the most to gain.

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ACTA summary by EFF

Electronic Frontier Foundatiion

Electronic Frontier Foundation, EFF, has written a quick summary of the current state regarding the ACTA negotiations, including some very good links.

I republish it here:

Last week saw the latest round of secret negotiations on ACTA, on criminal enforcement of IP, enforcement in the digital environment, and, according to one of the few public documents on the negotiations, ACTA’s own ”transparency”. It’s hard to imagine a more controversial set of IP topics — and underlying them all is the distinct lack of transparency attached to the entire process. It’s been a sore point throughout the trade agreement’s long history, with pressure from the European Parliament, the Canadian delegation, and public interest groups (including EFF) in the United States to make the agreement more accountable.

We’re asking the Obama Administration directly to open up the process — but your elected officials also have a part to play. If you’re a US citizen, write to your Senator now, and tell him of her to rein in ACTA.

Meanwhile, in the continuing absence of any true openness, reporters and analysts have had to rely on leaks and hints from the countries involved. Here’s a round-up of what we know from ACTA-watchers around the world:

• The story so far: Michael Geist’s timeline from October 2007 to March 2009.
• The full text of the leaked European Commission briefing memo, including a note that the content is sensitive ”due to the different points of view regarding the internet chapter both within the Administration, with Congress and among stakeholders (content providers on one side, supporters of internet ‘freedom’ on the other)”.
• Reactions from EFF, Canada, Australia, New Zealand, and across the blogs.
• Open letters to Obama administration demanding transparency, signed by EFF, and joined with individuals and groups from Lawrence Lessig to the Medical Library Association.

Related Issues: Anti-Counterfeiting Trade Agreement

Related Cases: FOIA: Anti-Counterfeiting Trade Agreement (ACTA)

We must have openness in the ACTA negotiations. The way this is being handled is a disgrace.

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Andra bloggar om: piratpartiet, eu, politik, informationspolitik

Förnuftigt om märklig IT-politik

Infrastrukturminister Åsa Torstensson (C) har i veckan presenterat regeringens visioner inom IT-politiken

Dagens Svenskbladet sammanfattar regeringens IT-politik i en artikel med rubriken ”Sverige ska bli snabbast i världen att kolla mejl”.  Regeringens politik går ut på att vi ska betala för utbyggnad av 100Mbit till alla hushåll, samtidigt som man med lagens hjälp säkerställer att vi inte kan använda det.

Artikeln innehåller även ett par pratminus från mig. Även om jag inte direkt kan påminna mig att jag varit tillfrågad, tycker jag att det är förnuftiga saker jag säger.

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Commercial suicide by ill-advised brand management

.

Hax writes about the brand management aspect of the ACTA treaty on his English blog The Embedded Citizen:

Do the owners of Nike, Boss, Diesel, Camel, Swatch and all other trendy brands really want to be associated with internet censorship, limitations of freedom of information and measures that infringes on peoples privacy?

If someone from the marketing departments of those companies happens to read this and wants to respond, I will be more than happy to publish their answer here.

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Andra bloggar om: piratpartiet, eu, politik, informationspolitik

IP Observatory in JURI

Rapporteur Marielle Gallo (Christian Democrats, FR) in JURI today

The Legal Affairs Committee JURI today discussed an initiative by the Commission to set up an ”EU Counterfeiting and Piracy Observatory”. I have written about this earlier (in Swedish).

This Observatory should be a cooperation between EU authorities and the ”stakeholdes” (i.e.: the organizations representing big business) to combat on the one hand counterfeit goods, on the other hand copyright infringements on the net.

The big problem with this is that they are mixing two separate issues that have very little to do with each other. Counterfeit goods is a commercial activity outside the law. Everybody agrees that it is a bad thing, even we pirates.

If i buy a pair of Nike shoes or a packet of Marlboro cigarettes, then I, as a consumer, have a right to know that the thing I bought actually is what it says on the box. The primary function of trademarks is to act as consumer protection. If I buy a product that does not live up to my expectations I should know whom to complain to, and if I buy something that I’m happy with I should know where I can get more of the same stuff if I want to in the future.

To combat counterfeit goods is an uncontroversial issue. If and how and how much the EU should get involved (as opposed to just leaving it to the member states) is just a practical consideration. The Pirate Party has no objections in principle to combating counterfeit goods or upholding the existing trademark laws.

But to hunt file shares that commit non-commercial copyright infringements by sharing music and films on the net is quite a different matter. It is, of course, illegal under the current copyright laws. But these laws are currently under very heavy political debate throughout Europe. To just set full speed ahead and increase the level of enforcement is hardly the most sensible way to address this issue. The political debate about copyright reform will not go away by introducing even harsher enforcement measures.

What it boils down to is that the pro-copyright lobbyists (representing the big film and record companies) are trying to make their political campaigns appear more legitimate by hiding behind the companies that are concerned about counterfeit goods and trademark protection.

This was very evident in today’s exchange of views in the JURI. If you read the communication from the Commission, you get the impression that it is almost entirely about counterfeit goods. The word ”piracy” is mentioned a number of times in the text from the Commission, but unless you follow the reference in the footnote on page 3 where the term ”piracy” is defined to mean ”copyright infringement”, you would probably assume that the word ”piracy” was just used as a more emotionally loaded synonym for counterfeiting activities.

But when you listened to the European Parliaments rapporteur Marielle Gallo (Christian Democrat group EPP, FR) she was talking almost exclusively about issues related to file sharing an copyright infringements on the net.

When I spoke in the committee, I made the point the we should at least separate the two issues before we go any further. They are completely separate, and should be treated as such. Just because I as a citizen want to have assurances that my Nike shoes or Marlboro cigarettes are genuine, does not mean that I want the EU:s institutions to spend money on hunting teenagers that share film and music on the net.

I would hope that Nike and Marlboro agree with me on this point. If I were them, I would have no interest in getting my brands associated with the hunt for file sharers. But no matter how the various ”stakeholders” feel about it, we politicians should at least tackle the issue in an intellectually honest way.

Combating counterfeit goods is one thing. Combating the entire Internet generation is another. We in the Pirate Party have no problem with the first, but we have serious objections to the second. Let’s not muddy the waters by confusing the two issues.

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