Artistes step up their fight for digital copyrights

Date: 04/02/1999

As the European Parliament prepares to vote next week on planned new EU copyright rules for the digital era, Peter Chapman weighs up the arguments in the debate over how artistes' rights should be protected in cyberspace

For the EU's musicians, authors and a host of other lobby groups, last month's vote in the European Parliament on whether to sack the European Commission was a mere prelude to the main event a week later.

While everyone else was monitoring the twists and turns in the debate on the censure motion, their eyes were firmly fixed on the fiendishly complex details of a vote in the Parliament's legal affairs committee on the future shape of EU copyright legislation in the digital age.

In the Parliament's committee rooms in Brussels, MEPs, led by Italian Socialist rapporteur Roberto Barzanti, thrashed out their opinion on the Commission's draft directive launched in 1997.

Their vote was round one of the fight between a host of interested parties to secure favourable amendments to the Commission's plan to update existing copyright rules crafted long before digital technology and the Internet were conceived.

In a nutshell, the Commission's proposal was designed to ensure that artists have similar protection against copying of their work in the online environment as they enjoy in the analogue world.

It had to make sure that there were exemptions to the artists' reproduction rights for “fair uses” such as the conversion of material into Braille for the blind.

But, at the same time, it needed to avoid giving pirates a blank cheque to make perfect digital copies of music and other works distributed online, grappling with the possibility that the Internet and other technologies such as interactive TV would allow new services to pump-out music 'on demand', offering listeners the chance to bypass record companies and make their own perfect digital compilation recordings.

To counteract the threatened loss of revenue, the Commission proposed a new right for music companies to force service providers to seek permission and pay for the privilege of offering their music 'on demand'.

Other proposals included measures to ensure the music industry is given legal protection the anti-copying technology used by rights holders - such as the 'invisible tattoos' which record companies now put into their music to track pirates - making it illegal to circumvent them.

The Commission's plan sparked a massive debate over the fine details of the proposals, prompting MEPs on the legal affairs committee to support 62 out of a massive 300 amendments tabled by members at their meeting last month. But no sooner had they voted than the inquest began.

Without doubt, the loudest voice in the copyright debate has been the EU's powerful music industry lobby, led by the International Federation of the Phonographic Industry (IFPI).

Frances Moore, director of the IFPI's Brussels office, says the committee's vote “was a good first step” towards winning the protection that the music industry needs.

For those in the music business and other 'content' producers, what matters is their ability to get paid for their product when it is supplied using the new digital technology.

Moore said she welcomed tough new measures on private copying which were not included in the Commission's original proposals but were added by the committee. These include the right to block digital reproduction of music using newly developed technical measures and to seek payment for the copying of material which is not protected, probably through levies on copying equipment and recordable CDs.

But Moore insists that there are still a number of loopholes which need to be closed to make the directive acceptable to her industry.

The IFPI has welcomed the Commission's plan to give companies the exclusive right to decide whether or not to authorise the use of music in 'on demand' services, where users can select a particular track and immediately listen to it.

But Moore argues that music firms should also be given the right to control music which is used on other 'near on demand' multichannel services. These are services where particular types of music are played at precisely timed intervals which are sometimes pre-announced to the public in programme guides.

Moore warns that if listeners know when these programmes are playing their favourite tunes, the threat to industry is the same as with music on demand. “If I want to record David Bowie and I know he is being broadcast at a certain time, I can set my machine to switch on at that time,” she said. “It is a flagrant injustice if a service charges a fee and then provides your music. This is one issue we are fighting on.”

The music industry also wants the full Parliament to overturn the legal affairs committee's decision to allow broadcasters to transmit music in a digitally transmitted programme without obtaining permission - as long as they agree a fee with the record company concerned. In addition, the IFPI wants to reverse the committee's vote allowing broadcasters to use their own archive of artists' material to make compilation recordings.

But some of the demands which IFPI considers reasonable provoke stinging attacks from other sides.

Some groups, such as those representing libraries and the disabled, want to ensure the people they represent are not disenfranchised from the information society. They argue that these consumers should not have to pay to view material which was offered free in the analogue world and were dismayed by the legal affairs committee's decision.

“Our wildest nightmares came true,” said Barbara Schleihagen of the European Bureau of Library, Information and Documentation Associations (EBLIDA).

She criticised the committee for failing to give public libraries the right to let readers view online information for free, even if lenders had paid for the database in question.

“This would be a disaster for public libraries if it goes through as it is. It is absolutely vital that there is still one place where the not-so privileged can have access to the digital world,” she insisted.

At the same time, she complains, the committee's approach would undermine some of the exemptions which MEPs have already voted to grant in the digital environment. One example of this is the fact that although its amendment would allow libraries to copy material for certain archiving purposes, this would not work in practice if that material was protected by technical devices designed to prevent others from doing so.

Schleihagen's fears are shared by telecoms, information technology and and network service operators.

They complain that text as approved by the Parliament's legal affairs committee would force them to seek permission for temporary copies which are made automatically during the functioning of computer networks.

David Philipson, vice-president of Swedish telecoms operators Telia's Infomedia unit, said the aim of the move was to thwart piracy by making temporary copying illegal except for legitimate users such as telecoms operators. But he complains that they might be forced to seek special permission for making all temporary copies.

“It is necessary to make a copy of data every 50 kilometres just to make sure the signal is strong enough, but it is technically impossible for us to check what goes through. We would have to practically close the networks,” he said.

Although the IFPI argues this permission would in practice be given on a general basis and and would not have to be sought for each transfer, Philipson claims this is not made clear in the text as amended by the legal affairs committee. He is also critical of the levy system which he believes would emerge to compensate rights holders for the losses arising from unauthorised digital copies of unscrambled works.

This, he argues, would impose a massive financial burden on equipment manufacturers such as Philips, Sony and Panasonic, who supply digital copying kit, and possibly also on online service providers.

“It might add, say, €50 a year to the cost of Internet access. It would also undermine the concept of copyright, because if you are paying a levy you are less likely to respect copyright,” he said.

The next battle in the copyright war breaks out next week in Strasbourg when the full Parliament will decide whether to support the approach taken by its legal affairs committee. But there will be many more skirmishes after that, as EU governments, the Commission and MEPs will all get another chance to have their say before the final shape of the directive is decided.