Monday, 2 March 2015

How One Pirate Is Making A Difference In The EU

Julia Reda MEP, Twitter icon
On 19/01/2015 Pirate Party MEP Julia Reda, the only Pirate in the European Parliament, issued her report, EU copyright rules are maladapted to the increase of cross-border cultural exchange on the web. The internet promptly went nuts.

A few days later, in a blog post titled One bright day in the middle of the night…: Reactions to my copyright evaluation report, she summarised the responses thus:

However, many of the stronger reactions are wildly contradictory: I’m a “fringe lobbyist”1 who’s “about to lead the entire EU into the digital future”2. I wrote “the most progressive offical EU document on copyright since the first cat picture was published on the web”3 and yet “Angela Merkel could not have done it [more copyright-friendly] had she tried”4.

Today I saw a tweet in which linked to the draft opinion of The European Parliamentary Committee on Industry, Research and Energy. The Rapporteur is José Blanco López, who appears to be of the liberal socialist persuasion. This is important because they generally side with the maximlists. While it's not exactly earth-shaking, the fact that Julia's report wasn't just dismissed out of hand is a feather in the cap of the Pirates. As I said at the time while it was all kicking off, she's like a salmon swimming upstream. Hungry predators and opportunistic fishermen line the route all the way to her destination and it's not her job to implement Pirate policy, it's her job to provide a report that demonstrates the need for reform. She has succeeded to such a degree that the committee on Industry, Research, and Energy has sat up and is taking notice.

Their opinion


The trouble with pesky old democracy is the other so-and-sos won't do what we want. This is where authoritarianism comes from and those of us who are most fired up about reform want to impose it from the top down for the greater good. The trouble is, there's only one of us so that's not going to happen. Baby steps, people. Remember, the idea that copyright is not some kind of property right and welfare scheme for rightsholders is a novelty to them. I'm going to dissect the opinion to show you what she's up against; reports like Julia's have to go through a range of committees before they end up on the table to be voted on, as far as I know. It's not going to get there intact, is what I'm saying, so don't be too hard on her for failing to knock copyright terms back to the Statute of Anne. There's too much legislation in the way for that to happen yet.

Their suggestions and my comments


The Committee on Industry, Research and Energy calls on the Committee on Legal Affairs, as the committee responsible, to incorporate the following suggestions into its motion for a resolution: 
1. Stresses that the European cultural and creative industries are an engine for economic growth and job creation in the EU, as they employ more than 7 million people and generate more than 4.2 % of EU GDP; emphasises that cultural industries continued to create jobs during the economic crisis of 2008-2012; 

I'm not sure how accurate those figures are but that sounds healthy: our creative industries are thriving despite our economic woes.

2. Underlines that copyright and related rights constitute the legal framework for the European cultural and creative industries and form the basis for their ability to generate economic activity and employment; 

That's where I have a problem, and it's the problem Julia faces; in a democracy where the majority of the people are convinced that copyright is the BASIS of their ability to generate jobs and income she can't get the votes she needs to change a rigged game. Until such time as she can convince them that other business models are available outside of a licencing framework and that they do more to generate economic activity and employment than rent-seeking, she's got no chance of achieving meaningful change. In my last post on the subject I challenged long-held assumptions about the nature and purpose of copyright and emailed my MEPs to ask them to consider my points. This was the only response I got:

And he's not even an MEP. The fact is, they don't like the status quo to be challenged and Julia has an uphill struggle to even question it if they can't accept the simple truth that they've been deceived by the maximalists.

3. Acknowledges the need to review Directive 2001/2 9/EC in order to ensure appropriate remuneration for copyright holders and appropriate protection of these rights in a changing and constantly evolving technological environment, which brings both opportunities and challenges;

Okay, define "appropriate." What they forget is that copyright holders are not necessarily the people who created the work. Remuneration is important, if you work on something it's unfair if someone else picks it up and makes money off it without offering you a share of it. That said, if your weakness is getting an audience it might be worth making a deal to supply the expert/popular person , with material to exploit in exchange for a cut of the profits. After all, if you're riding piggyback on someone else's popularity, they were there first, now you have an audience. This was brought home to me personally when I shared a link to my blog post Dear MEPs, We Need Copyright Reform, Stat as a reply to a tweet of Julia's, I ended up getting the biggest number of readers for a single post I've written, ever. Now suppose I had posted it on her blog, her blog was plastered with adverts, and she made £1000 a month or so from the ad revenue. In that hypothetical situation, should I demand a cut of the advertising revenue? No, I posted the link there myself, and benefited from it by getting more readers.

Okay, now imagine she hopped over here, saw the blog post, liked it, and wrote a point by point critique of it. Should I then demand a cut of the hypothetical advertising profits? No, that's fair use, she's reporting on my post and it's transformative. Besides, as long as she cites her source (it's good netiquette to link to sources), I benefit because those readers might hop over here and read my blog.

Okay, what if she just copies it wholesale with no attribution and pretends it's her own work? Now I have a case: that's plagiarism. Sharing a link to my work or writing critiques, etc., ought to be allowed without requirements that permission be sought or royalties paid. And that will bring us back to "Do." What are we going to call "appropriate" remuneration and rights protection? They haven't specified that, which is a major cause for concern.

4. Considers it necessary to develop a legal framework to strengthen the negotiating and contractual position of authors and performers in relation to other right holders and intermediaries;

Yeah... about that... copyright holders aren't always the creatives who originated the work in question. I'm glad they've referenced this but unless they ban work for hire agreements I can't see how this would change anything in a meaningful way. This is what happens when you see copyright as the foundation for remunerating artists and creators; everything else is subordinated to a system that exists primarily to perpetuate itself. The goal here is to make copyright work for artists and creators because it currently doesn't.

5. Welcomes the multi-territorial licensing of rights under Directive 2014/26/EU as an example and a way of overcoming the fragmented internal market; encourages the development of balanced and flexible solutions that help overcome the existing barriers to cross-border access and availability of products and services;

Ah, geo-blocking, how I love thee. Wait... the internal market is fragmented because of licences on "All The Things." Get rid of or simplify those, and the problem is resolved. José has decided to simplify the system by offering a Europe-wide licencing system but he's letting himself in for a world of pain in the long term; the complexity we have now is a feature, not a bug, the idea being to extract as much revenue from as many people as possible. Maximalists will resist any measure that threatens their bottom line. He's not seeing this as a problem yet, he thinks they don't get it. But they do, believe me. That is why we're in this situation.

6. Stresses that protection of copyright and related rights must respect technological neutrality;

Ha! Good luck with that, my son. If copyright is the basis of economic activity and employment, it stands to reason that anything done to expand it is essentially good. So how can we maximise copyright revenues without treating packets of information differently? Because if copyright is that important, it must protected from anything that threatens the profits due to the rightsholders. What I'm saying is, if we don't scale copyright's reach and shorten its terms we can't have nice things net neutrality. Those two things are incompatible.

7. Stresses that any legislative change in this area should ensure accessibility for people with disabilities to products and services protected by copyright and related rights;

Ah, but that would mean knocking DRM off copyrighted items so that text-to-speech readers could be used on Kindle books, etc. If protecting rightsholders' profits is paramount, that's not going to happen. Sorry, blind people, you need to get a special licence. And I presume you'll have to prove you're blind so you can legally acquire a DRM-free or text-to-speech program-compatible version of the item you want.

8. Urges the Commission to take into account the rapidly growing user-created content on the internet when reviewing copyright rules; any new proposal should aim to find a fair balance between protecting IPR and fostering a dynamic and creative internet. 

Well, yes. Should we really grant blog posts on On t'Internet the same "protection" (right to sue infringers, don't get excited, it's not protective, really) as, let's say, The Life of Pi? I've actually got that now. I just haven't made as much money from my work as Yann Martel has from his. Notice how José dances around Fair Use. He's trying to sound reasonable but doesn't want to offend the powerful maximalist faction in his parliamentary group.

My opinion


Well Julia has begun a conversation but the maximalist faction is already making an effort to water her proposals down in the guise of effecting change for the good of the internet. I knew this would happen, it's why there was no point in railing at her, she's got no control over the situation and can only do so much to influence the other MEPs.

My proposal


We need to establish, perhaps by a resolution of some kind,

1. that copyright rent-seeking does little to remunerate creatives for their work, 

2. that the rightsholders are not always the creators of the work they're collecting money for, 

3. that other business models are available and should be explored,

4. that DRM is a violation of the property rights of the buyer,

5. that accessibility should not be hindered to protect profits,

6. that fair use needs to be ring-fenced,

7. that copyright is emphatically NOT property, it is a monopoly privilege, and

8. that copyright terms are far too long and are not fit for the purposes claimed.

Wish me luck with even getting that on the table, but it's a conversation I would like to have with someone other than Julia Reda; she's already on board with her hands on the helm.

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