Global Copyright Licensing Doubts And What To Do About Them

What do the fearsome leader of France’s three-strikes agency, a top Microsoft counsel, Google’s copyright counsel, a free software activist, Egyptian and British librarians, a South American development-oriented academic, and a European music authors’ representative have in common? While one might be tempted to say, ‘very little’, a recent gathering showed one thing – they represent the very wide range of current views on the future of copyright licensing.

“Copyright is part of the solution, not part of the problem,” said Jason Albert, associate general counsel and chief of staff at Microsoft, who added that the relevant question should be how IP can contribute to reducing the knowledge gap. He suggested that no single licensing model is a complete solution and said that a “mixed source” approach is best. He also defended the use of proprietary software packages, saying the cost of software “is a relatively low portion of overall cost” such as hardware, and that for every dollar Microsoft earns in revenues another $9 are generated for the local system of vendors that sell Microsoft and related products.

In a separate interview with Intellectual Property Watch, Albert said that as cloud computing evolves, Microsoft’s plan will be to continue to engage in a variety of approaches, and to continue to release code under its existing model. He also re-emphasised the role intellectual property rights can play in development, and that IP protection is important to technology transfer and foreign direct investment. A video of this interview is available here.

The 4-5 November event at the World Intellectual Property Organization, entitled, Facilitating Access to Culture in the Digital Age – WIPO Global Meeting on Emerging Copyright Licensing Modalities, was held as part of the WIPO Development Agenda.

HADOPI: No Freedom without Rules

“We know very well that young people, even very well brought-up [young people], do engage in activities that are … misdemeanors,” said Marie-Françoise Marais, president, Haute autorité pour la diffusion des œuvres et la protection des droits sur internet (HADOPI) in Paris, scoffing at the idea that it was wrong to criminalise young people. But she said that “three years of firm imprisonment and 500,000 euros of sentencing seem to be out of proportion.”

So HADOPI is intended to provide a more proportionate, gradual response which includes the development of the legal online offerings and an approach for accused pirates that involves sending out notices to users of the internet in order to “make people responsible,” she said.

“The person who has a computer… has to understand that there are limits to its use,” Marais said. The whole success of the operation depends on the quality of the legal offer, she said. Currently, it still is not easy enough to download legally. HADOPI is going to put labels on legal offerings online, and is building a referencing platform, she added. It is trying to work with all stakeholders to improve the current system.

“This is a project of responsibility, freedom,” Marais said. “Because there is no freedom without rules.”

“Why [do] people as normal as you and me decide to become ‘pirates’?”

– Argentinian professor Fernando Barrio

“Why [do] people as normal as you and me decide to become ‘pirates’?” asked Fernando Barrio, director of International Relations at the Universidad Nacional de Rio Negro in Argentina. He said that the annual GDP per capita of Kenya was US $1,784, so Microsoft decided to lower the individual price of office from $177 to $82, where as the cost is $79 for a similar product in the United States, a country with a “little lower GDP per capita” than Kenya.

“I am happy because I do not suffer piracy,” said Malcolm Bain, a legal advisor to the Free Software Foundation Europe, who thanked Albert for saying 50 percent of what he wanted to say.

Google Chief Copyright Counsel William Patry said that a lot of the difficulty in tailoring software licences to markets is in determining the difference between a sale and a licence.

Cloud computing has introduced new models, with infrastructure, platforms and software all acting like services, he said. If a consumer buys something from the iTunes store, is it a sale or a licence? If that consumer decides to later sell an iPod with 1,000 iTunes songs on it, can that device be sold for more containing the music than it could be sold for if only the device? There is a question of how much of a role consumer expectations play in this, he said.

In the United States, many such issues are decided on basis of the contract between the seller and the buyer. But there is no federal law of contracts in the US, so a copyright contract or licence “has to be determined, typically by state law … which of course can lead to lots of diversity of opinion in the country” about what a particular contract means.

“The cow which one expects to milk tomorrow is already being slaughtered today.”

– music authors’ representative
Konrad Boehmer

Konrad Boehmer of Buma/Stemra, the Dutch music authors’ organisation, called on WIPO to act as “watchdog and bodyguard” for authors and to “watch over enforcement of the Berne [Convention] code and demand its application, in spite of lethally seducing songs from commercial or political ‘Loreleis’,” referencing a mermaid of legend who lured fisherman to their deaths with her singing.

He also cautioned against the deterioration between the value of a creation as a work of art and its price, a function of market, and said authors’ rights need not only to be protected from piracy but also from being co-opted by a creative industry which makes the mistake of assuming that increasing value for shareholders will benefit artistic value.

In this way, “industry behaves as its own grave digger,” he said. “The cow which one expects to milk tomorrow is already being slaughtered today.”

Reducing “art” to the “disgusting term” ‘content’ is a “semantic aberration,” said Boehmer, and even government “authorities who are supposed to protect artistic and cultural value slip helplessly into the role of benefactor of shareholders-value.”

On piracy, he said it is necessary to be clear about who to blame. “Nobody has ever been able to explain to me what these kids are stealing because the track remains undamaged on the original server. What is the real motive of these kids? It is a refusal to bow to laws of a market which nobody understands anymore,” said Boehmer. It is “much more important to chase the illegal disseminator rather than the so-called thief. [The] Pirate Bays of this world that vehemently deny a responsibility that could not be more obvious are the real thieves.” Pirate parties “should be opposed by all possible means, because they try to implant law-breaking into the law itself,” which is “a total perversion,” he said.

“Any legal system that’s pirated by 95 percent is a problem of the system,” said Hala Essalmawi, principal attorney and IPR officer at the Bibliotheca Alexandrina (the new Library of Alexandria) in Egypt.

The current copyright system makes neither rights holders nor users happy, she said. Copyright law should not be interpreted according to the needs of the entertainment business; exceptions and limitations should also be enforced. One audience member suggested that there should be minimum standards of limitations and exceptions just as there are minimum rights.

Contract law regulates access to knowledge now, not copyright, said Ben White, head of intellectual property at the British Library in London. “And a lot of contacts undermine limits and exceptions. This problem, the overwrite ability of limitations and exceptions,” has been foreseen in the draft treaty on limitations and exceptions for the visually impaired, he said.

There are several paths to take, said Thierry Desurmont, vice-président du directoire, Société des Auteurs, Compositeurs et Éditeurs de Musique (SACEM) in Paris. He suggested that the nearly completed Anti-Counterfeiting Trade Agreement (ACTA) might help make progress, as might HADOPI, and technical protection measures to prevent piracy. He also praised a French government initiative to cover half the price of music purchased online by people 12-25 years of age.

Jason Albert of Microsoft speaking at WIPO