Should The EU Rethink Copyright Law For The Digital Music Age?

By David Cronin for Intellectual Property Watch
BRUSSELS – Europe’s copyright rules are ill-suited to an age when millions of music files can be accessed at the click of a mouse, a Brussels conference has been told.

About eight million tracks by musicians from a wide variety of genres can now be listened to via the internet, a figure that is projected to rise to 12 million by 2012. With the entertainment industry estimating that 90 percent of music downloads are illegal and sales of CDs having declined sharply over the past few years, some technology firms are urging that the whole basis of copyright law needs to be rethought.

Kurt Einzinger, president of the Internet Service Providers Association (EuroISPA), believes that attitudes to music have changed so fundamentally that the “established copyright regime is not fit for the internet.”

“I personally have LPs [records] of The Rolling Stones and Cream at home,” he said. “But my kids get a piece of music and they listen to [it] and that’s it. They don’t keep it. They wouldn’t pay one euro or one dollar for listening one time to a piece of music.”

While acknowledging that there is a “culture of disrespect for copyright rules,” he added that “when downloading, people don’t feel they are illegal, they don’t feel they are doing something wrong.”

Einzinger was speaking at a conference organised by the World Intellectual Property Organization (WIPO) that took place in Brussels on 24-25 November.

A markedly different view was offered by Feargal Sharkey, former singer with Irish punk-rock band The Undertones.

Now chief executive of UK Music, which represents artists, record companies, managers and royalty collecting societies, Sharkey contended that the “voice of the creator is frequently overlooked” in the debate about the internet.

The proliferation of free downloading, he said, is a contributory factor to the often meagre income of artists, citing estimates that more than 80 percent of musicians in Britain earn less than €15,000 euros per year.

“The copyright system was introduced to protect true originality,” he added, stating that freedom of expression does not confer “a freedom to steal and plagiarise.”

A ‘memorandum of understanding’ between the British government, the recording industry and technology firms signed during July aims to set up new business models, which allow listeners access to music using whichever means they prefer but in a way that “the creator gets paid,” according to Sharkey.

Jean Bergevin, a European Commission official handling single market issues, suggested there is considerable confusion about how copyright legislation applies.

Many internet service providers have claimed that they merely host data and should not be held responsible for whether its content violates copyright law. But Bergevin stressed that the European Union’s directive on electronic commerce, which dates from 2000, does not make such firms “fully exempt from liability.” Once they receive knowledge that copyright is not being respected, they are supposed to take action. Yet he said that the issue of how courts should interpret what constitutes knowledge in such cases is “an issue that might require some clarification.”

His colleague Jean-Eric de Cockborne, an official dealing with audiovisual policy, described internet piracy as “a massive problem.” While he insisted that “doing nothing is not an option,” he argued that it would be premature to introduce fresh laws.

“It is unlikely that new punitive legislation will be adopted,” he added. “There is a very strong political view on the need to balance the protection of intellectual property rights with other fundamental rights, in particular data protection and the right to information.”

Jürgen Becker, vice-president of GEMA (the society for musical performing and mechanical reproduction rights in Germany), complained that “copyright is not being adequately protected online” and that a “crisis of copyright” has been taking place for the past two decades. His organisation, he noted, has initiated legal action in Germany in a bid to pressurise internet firms into blocking access to websites which breach copyright rules.

“All rights-owners agree that they do not wish to put up with this any longer,” he said. “But the options open to them in this respect are limited. Only lawmakers – both national and European – are in a position to remedy the situation.”

David Cronin may be reached at info@ip-watch.ch.