The morning session begins with a debate between Olivier Bomsel (head of the ParisTech Chair of Media and Brand Economic) and James Boyle (law prof at Duke, and one of the founders of Creative Commons). It is moderated by Patricia Barbizet, managing director, Financièr Pinault. The question is whether “intellectual property” (a phrase that already skews the discussion, of course) is a universal value. (Disclosure: I come in thinking that “IP” is not a universal value, and is not even a fully coherent value. And I am and admirer and acquaintance of Jamie Boyle.)

Patricia: We should try to find a common view among artists and regulators [and audiences/participants? and culture itself?] and across cultures. We want to try to avoid dogmatism. We want a constructive and pragmatic dialogue.

James begins. He sketches three agendas to try to frame the debate. First, the enforcement agenda starts from the idea that copyright becomes more needed as it becomes cheaper to copy. As copy costs approach zero, control should approach infinity, according to this view.

Second, the development agenda starts from the needs of human beings, especially those in the developing world. It stresses flexibility in copying, acknowledging that the US and Britain used to take looser view. E.g., Dickens called America a nation of pirates.

Third, the boring agenda: It demands empirical evidence. It says we have strong intuitions about what technologies will do, and those intuitions are almost always wrong. It seeks balance, democratic dialogue, is somewhat upset by IP policy to be set by treaties, the texts of which are often classified, which is hilarious, as if there would be rioting in the streets over anti-circumvention policies. [He’s being ironic.] The boring agenda is humble. You will hear little about it today; it is poorly represented at international conferences. The European Database Directive was spposed to create more databases, but there have been fewer and the prices have gone up. I hope the boring agenda will find a litle space here today.

Patricia: Is Creative Commons the future? James: CC is based on copyright. It allows users to set their own terms. E.g., you can download James’ book for free because his publisher and he agreed that would drive attention to it. CC goes to scientists, artists, musicians, and asks if they would like to share their work. Many say yes, they’d like to help build a commons. But CC is a private attempt, which addresses our culture’s ignoring of the value of commons. You used to know that the works of your generation would come into the public domain within your lifetime. You could adapt them, translate them, etc.. Now, the works of everyone in this room will not be available for such usage in our lifetimes. Extending the lifetime of copyright beyond the lifetime of authors does not incentivize the dead authors to write more, although the US Congress doesn’t agree.

Olivier: Economics by modernizing ownership theories in the ’60s, plus the info revolution that began in the ’70s, has rolled all prior thinking and law into IP. It’s not necessarily what the Founding Fathers were talking about. We’re in a new phase, using new property theories. Then we can ask whether [theories about?] copyright and brands are independent. [I’m having trouble understanding the translation.] One of the features of the Net is that it’s the first tool that enables you combine various things…publication for anonymous audiences. The question of who speaks, who curates, the environment of the expression is very important. Let me finish this line of reasoning by saying that the 19th C idea of publishing is to make public and known. “Make known” obviously leads you to the issue of brands, because it means linking to this expression a certain number of identifiers and words that give meaning to the expression. [Sorry. but I’m pretty much transcribing. It doesn’t make sense to me either, which is certainly a translation problem.] I think there’s a real issue. What do we mean by publish? It means posting on a Web page. It means releasing signs into an accessible space. But, signs if they go no further than that are nothing more than noise, unless your an archivist and taking a very deliverate approach to identifying a particular form of expression, most consumption of meaning is via names, proper nouns. The author can only be identified as such when he has been authorized by a publisher: “Yes this is an author, I put his name next to mine onf the Web page in which I put his content.” All this is much more complicated than this.

Patricia: So you need both publishing and distribution. Olivier: I wasn’t invited to conferencs such as this until I published a book, and got co-branded.

Q: In the past, creators were not necessarily linked to the financial side. The Net turns things on its head. The creator is the bourgeois owner?

Olivier: Ownership is never popular. It is asymmetric. Society gives someone an advantage, and society then asks whether it was right to do so, and whether the collective destiny should be sacrificed by granting individuals sovereign power. [New translator!] This might shock libertarians or primitive communists.

James: Pres. Sarkozy ways that the rights of authors stands in opposition to the Anglo tradition. But one should look at the arguments in France about the Author Rights after the French Revolution. Diderot v. Condorcet. Diderot thought the author’s rights were eternal and natural, and should be easily transferrable to publishers. Condorcet said some things similar to what Olivier said: It is a question of liberty, stopping people from uttering the words of others. He said we should have something like a brand, e.g., this is the James Boyle authorized version. What we have is not as perpetual as Diderot’s, although it’s getting there. It’s also not Condorcet’s that consists of a right of paternity and attribution. So, the tradition of Authors Rights has always had the same concern as the Anglo tradition: The rights of authors are good but how far should they extend. That is the question. The French do not perfectly respect traffic laws. We could have embedded governors that enforce compliance. It would save lives. But would the cost of enforcement be worth it. I think not. And that is the question we should be addressing. It is not am atter of “I love piracy,” but “How far the enforcement? What are the costs?”

Olivier: If you create too many incentives for technology to get around the law, it then becomes unenforceable. And I think that James is trying to open up as an avenue. If you create more responsibility for enforcement of law, you can make the enforcement much more effective and less costly.

Now Bruno Perrin summarizes an Ernst & Young report that the Forum commissioned on IP laws in G20 countries. How are these countries are using the technologies and approach the new risks. [Back to the bad translator.] He shows a map that shows a fairly consistent framework in these countries: Copyright lasts from 50 to 70 7ears. [Well, 70 years after the death of the author.] Countries with harsh enforcement don’t necessarily find less piracy. The most universal factor is the new proven risk to reputation, and of course this involves brands. Audiences and artists respect more and more trustworthy [something]. IP remains the key element when it comes to creating innovation, and it is the interest of all to protect it. (The report is available openly.)

A lawyer [no name in program or intro; sorry] There are differences among IP rights among countries, resulting from those that have civil law and those with common law with copyright. There’s moral right in copyright companies, but moral rights cannot be ceded between living persons in those countries. We’re talking here about the right of the author to be recognized as the creator of the work, and the one who can guarantee its integrity. That can be ceded in copyright countries, but the author would nto be able to control how the work will be used later. Then there’s common law which is a different approach. [Yes, it’s my fault that I have to rely on a translator, but I wish I could rely on this translator :( ] [A longer string of words is emitted from the translator.]

Patricia: Piracy. Sarkozy said the good thing about France’s piracy laws is that it has informed a generation that works have prices.

Bruno: We tried to come up with a list of the arguments used by pirates so we could counter them and put an end to them. We were pleasantly surprised by them. Five out of 8 are connected with distribution problems: where, when, how, ease, interoperability. Then there’s the failure of the users to understand their obligations, but education can deal with that. The question of censorship by governments. Then there’s the question of price, which is justifiable [?] but there’s a response to that coming through when it comes to legal free offerings and streaming. [Another stream of compressed words from the translator.] To beat the pirates, you have to come up with a better service.

Patricia: Why are users, producers, and access providers entering into alliances?

Bruno: You have to talk about money. Here’s a chart that shows that in the past four years, the new players are telecom operators, and major media groups. The stock market cap and net cash have increased for these new players. Meanwhile, headcount has only gone up 1%. Excessive power is not a good thing. Consumers are becoming more demanding. [Another stream of seeming-words] We’re confident that things are happening.

Patricia: To sum up: IP is a universal value. It develops differently in different countries. This leads to alliances among stakeholders who had little interaction. Now they are forced to come together [word schmeer] protection diversity coming together.

Now there is a roundtable:

• Fedle Confalonieri, Mediaset Italy

• David Drummond, VP Google, USA

• Victoria Espinel, IP enforcement coordinator, Office of Mgt and Budget, USA

• Francis Gurry, Managing Dir., World Intellectual Property Organization (WIPO)

• Neelie Kroes, VP of the European Commission

• Elisabeth Niggeman, Managing Director, National Library, Germany

Patricia: Francis, do you think the current agreements are adapted to the digital age?

Francis: The international agreements are the last recourse. They are a starting point, that dates back to the 19th C, but there are gaps to be filled particularly when it comes to the rights of the different stakeholders. There’s a conf next year about actors’ rights and audio-visual materials. Third, there are quite a lot of questions that have not yet reached the level to be dealt with international agreement. [The good translator!] There are orphan areas that haven’t been discussed yet.

Patricia: There are new conceptions arising…

Francis: Yes. Law is just one part of the solution. For instance, yesterday we talked about facilitating access to creative work — making legal access as easy as illegal access. For that you need a new infrastructure, one not based on territories. I’m talking about global licenses that now require having to go through national levels. At the end of the day, we have to strive for a global market because the tech is global.

Patricia: People used to follow the rules of their countries. Then there were multinationals. This led to new apoproaches on a mltinational level. You’re suggesting it’s important to have consensus or at least multi-cultural dialogue. Or always differencves that have to be preserved?

Francis: We have to have a functional convergence so the tech functions. At the same time there can be certain areas preserved for national policy. E.g., we’re currently negotiating improved access for the blind; this is an exception in the copyright law. Next week we should be able to reach an international agreement that lets there be an exception in France (for blind-accessible works) available in other French-speaking countries. That currently doesn’t exist.

Patricia: Elisabeth Niggemann, how do you feel about the current legislation. Does it enable you to make available all works available to the public?

Elisabeth: I would have said yes when I entered as a librarian. But things have changed dramatically because of the digital revolution. People expect to find everything on line. Click and access. We can’t play our role. E.g., our library is only 100 years old. Everything in our stacks has been given us by publishers and music industry. About 25M media. Because we only started collecting in 1912, almost everything is under copyright. What can I do? Almost nothing, because of copyright. I’m not complaining, merely citing. We have to open up what we have in our stacks. If not, we’ll keep them sage, but they’ll be hidden, forgotten, not used. The treasures of our heritage have to be used and re-used, and we have to build on it. And this is really at risk.

Patricia: Should we enlarge the provisions? Is it legislation? Collective license?

Elisabeth: It’s a mixture of all that. We need money to digitize everything so it’s available. On the other hand, publishers make beautiful things, and it’s good that they give their metadata. But the big gap is the 20th centure, a black hole. Nobody earns anything from it, and it’s under copyright. Legislation could enable us to deal with orphaned works in the printed world. Researching the legal availability of orphaned works is expensive and difficult. It’d be good to have licenses that give money to the creators. We need a mi of legislation that backs these licenses, but also licenses that are worked on by the stakeholders that comes to a compromise so that everyone can gain from these works that are out of circulation and out of commerce.

Patricia: Do countries agree about orphan works? Do we all agree that it’s a black hole?

Elisabeth: I’d like to believe it’s a common view. Of course, the stakeholders won’t always share the same views and approaches and how much it’ll cost to buy a license. Controversy in the details, but we all share more or less the same view. It’s still an issue how you can do a cross-border license. I can imagine licenses being granted nationally because we have collecting societies. But how do you do it internationally? Within EU, yes, but globally it’s a big problem.

David: As one of the architects of the Google Books Settlement, we hope there’s a common view. But it didn’t work in the US. Legislation is required. There are lots of obstacles but we should do it. We get that people didn’t think our approach was good, but the black hole remains.

Patricia: But Google is signing more agreements…

David: A misconception is that Google is all about free content. But we’ve always had partnerships with content creators. “Traffic acquisition costs” in our annual report = content creators who embed our stuff. The content creators, including large media companies, make money out of this. Billions of dollars generated with content creators. Now, it’s turned out that the advertising/free models hasn’t worked that well. E.g., the news industry. Media industry and Google are headed toward distribution models that include paying for content. We sell e-books. Our OnePass project lets you subscribe to news. And we just launched Google Music which sells music through deals with the music industry.

Patricia [lightly]: I think many of us are so startled by the size of the figures in Google’s accounts that we miss the details. Yesterday, Sarkozy talked about Google…

David: We’re an indexer. We crawl the Web. If people don’t want it searched, we don’t crawl it. We are attempting to provide as much info to users as we can. We believe in openness in software. Android is open. The Chrome browser also.

Patricia: People use Google to find creations…

David: It’s important that artists have all the options to make their works available for pay, for free, etc. There’s tremendous amounts of info for free. But if you want the best, it’s expensive, and creators need to be compensated for that. We want to bring the great offline works online, but you can only do that if you have a model that compensates creators.

Neelie: Someone told me that yesterday was frightening and then exciting. When I was a small girl, I thought “What would I do if I didn’t have fear?” We should do our job, but not be afraid. We are talking about a digital single market. We should use the privilege of the digital single market. It is global. But we are open to imagination, and that should be our lead role. I am in completely in favor of a decent remuneration for creators. I agree with Sarkozy that we if we don’t feed the artists, it is over.

Patricia: We all agree. [really?]

Neelie: Many many artists are living on a thousand euros a month, which is not enough. That’s true for 97.5% of one of the collecting societies. We need to go to back to the basics. Put the artists in the center, of copyright law and our entire policy on culture and growth. We need out of the box thinking. I was startled when Sarkozy called HADOPI an “awareness tool.” It’s about piracy. Also, I’m a strong believer in the Cloud. That gives a possibility of tackling the problem better.

Patricia: Do Americans and Europeans agree about the cloud?

Neelie: Maybe. Let me be a politician. I cannot explain to Europeans why iTunes isn’t selling films in Europe, or why Spotify is introduced this week in Belgium but not elsewhere. We have to educate our children.

Patricia: Are we dreaming that our children are learning not everything is free?

Neelie: The main thing is to that people have options. Politicians need to listen to arguments, such as in the E&Y paper, but politicians have to translate them into policy. If your start is that artists should get a decent remuneration, then you go from there to try to provide options. If people can’t buy or download what they want, they think politicians are not doing their jobs.

Francis: When the Net started there was a lot of resistance among rights owners. Now it’s different. I appreciate the E&Y arguments. We do need to create the infrastructure for a global digital market.

David: I agree. Technology can be an aid here. E.g., Youtube fingerprints copyrighted material when asked. Infringers an either take it down or let it stay up with ads and make money out of it. [Will someone please say something about Fair Use]

Elisabeth: The Bern Convention says copyright exists from creation. When I see Wikipedia and more, I think we can keep global agreements and still do something voluntarily.

Fedele: If you’re doing the same job, you need the same rules, and the revenues have to be the same. Our job is far more banal than monks copying works: television. If Google uses tech to keep an eye on content, there’s streaming. The European audio-visual industry has a turnover of about €92B euros. About half go into the products. I agree with Sarkozy. I’m old, been around. I can put myself into the shoes of the newcomers. I remember what happened in France with the Fifth TV channel. You couldn’t have many commercials, Sundays off. We were the forerunners, although we were pirates at the time, although we were paying copyright for US materials. It’s all culture, and it needs to be protected. I’m not saying we need Big Brother, but when you look at the financial side of programs such as this, you have to be careful of the investments. If you want to take our content, you have to pay. So, let’s do it in that way.

Patricia: [bad translator] What’s your reaction to piracy?

Fedele: We believe in technology because programs especially for young people will have their web sites, put in the ads, make money. Quite clearly we have to adjust our offerings to the different platforms. Our business model is based on copyright and exclusivity. Recently in the EU there was a question about a game of football in Turkey or Greece. We and Skye and other bidders pay something like 100M euros to have all the championship games. In Turkey you can broadcast the same game as us that we have exclusive rights for. If they can do that, the system collapses. What is ours should be seen as ours.

Patricia: Laws? Regulations?

Fedele: Neelie Kroes has the mandate. The EC says every users should be digital by 2013, and we support that. That’s wonderful. If you want to get people to forget about things being free, it’s education. HADOPI is a step in the right direction. It’s like a speed limit on the motorway. [Cf. Jamie Boyle’s point] Everyone in business would like a monopoly, but we’re realistic. It’s up to politics and step in and regulate.

Patricia: What’s your next move, Victoria, since you’re in charge of policy for the US gov’t.

Victoria: My job is to oversee IP overall for the US, which is broader than copyright. E.g., trade secrets, patents. But I’ll focus on copyright. We need a combination of approaches. The Obama administration has been supporting having the public sector come together voluntarily to take actions to reduce infringement. We think this is flexible and sustainable. We’ve had 3 voluntary agreements reached this year, two about copyright, to try to quarantine sites that are bad actors. We are trying to gather data. We need an empirical basis to see if our approach is working. We need to know if it’s not working. We also feel this is just one part of the solution. We’ve increased law enforcement. We focus on sources of supply, not on consumers: businesses built with the intention of distributing infringement product. There is a public awareness gap and we’d like to educate consumers. We need to be doing more cooperatively with other countries. We need as a govt to be encouraging an environment that provides legal alternatives consumers find appealing. The Cloud is raising issues already raised by the Internet, putting it on steroids. Any debate that says the Cloud is good or a danger is overly simplistic. You can have Cloud services built to be legal or not. The Cloud’s capacity and flexibility makes it easier to build legal services that are what consumers want. To the extent people are building Cloud services with the intention of dedicating them to illegal activity [interesting two qualifiers] we will go after them. When I began, I though we would not need many changes. But after a review, we made 20 legislative suggestions to Congress, although most were not about copyright. One was to increase penalties (which is not entirely accurate, she says). We think the max penalties for copyright is appropriate where they are. We are concerned where IP infringement is tied to particularly egregious conduct, such as supporting terrorism or organized crime; judges should have the discretion to increase penalties. We’re seeing some truly gruesome examples of ties between organized crime and IP theft. We are particularly concerned about this. The second place we think our laws could be strengthened is with respect to streaming sites. Our focus is on distributors. When sites are built for distributing illegal content, we think that should be subject to criminal penalties. Our law is ambiguous about streaming, and we think it should be clarified.

Neelie: This debate is missing the fact that people should be allowed to use the Internet. We’ve focused on piracy. Education is important. But we also have to offer alternatives, for most people are not interested in illegal actions. I completely agree with the White House that much can be done voluntarily.

Victoria: We are keenly aware that enforcement of IP on the Net can have an impact on free speech, fair use, due process, and these are extremely important to our administration. They have to be respected and protected and made a priority.

Q: [bad translator] I run a small govt called Naive. Liability, responsibility, voluntary agreements, fear … these words keep coming up and are important. Internet operators have a cultural responsibility. I propose universal cultural contribution. Internet operators could pay a few pennies for the use of eac work. Track each usage.

A: [tax person from E&Y] Taxation has a major influence on how a cultural industry is run. Studies show taxes are a major lever used by countries. [String of translator gibber] Managing digital rights is a very complex system.

A: Neelie: I was intrigued by the interview with Frederic Mitterand in Le Monde. I agree with his proposals. But we should be strict; member states should be make their own reservation. It’s not just telecom providers. [This must be insider EC baseball.]

Q: We need time. Music has small margins and we need huge volumes for things to work properly. We need time to get things up and running.

Q: I’m a publisher. Fedele talked about the economics side. We’ve talked about fear. We have 1500 authors, of which 50 have a significant level of remuneration. The rest are frightened about losing the little they have. We need a rebalancing of the economic conditions, or else fear will take over. I have an author who wants to publish but not in one particular country for political reason. Do we think of the author’s rights or the consumers’ rights?

Q: [from Viviendi] Condorcet was not against intellectual property. “Any privilege is awkward in the face of liberty…It is harmful to the rights of others …” [didn’t get it]. Condorcet has people do not create books for money, but if he doesn’t get money, he has to find another way of making a living.

James: We’re forgetting that Internet has been wonderful for authors. More people are authors on the Net than ever before. Question: Would some of the proposals not make the Internet more like Minitel than the Internet. Minitel: Totally controlled. No creativity.

Q: [robert levine] I am the author of the book Free Ride. It’s avalable on a pirate site in Brazil that also sells farm equipment. David, Google has matching algorithms, but did you only offer it to media companies that were willing to do a media partnership. If the solution is tech, why can’t sites like this and ThePiratesBay be taken out of search results for Google.

A: [david] Links to pages with infringing content are taken down.

Q: I’m from the Italian copyright authority. We are going to try to adopt a law to fight piracy. I’ve been disappointed today. The question is, as we see it, is: We don’t have the time to get involved with philosophical debate. The telecom operators are avoiding their responsibility. The EC isn’t saying anything.

Victoria: As an American, we love the Internet. When I started this job, I spent a lot of time outside of DC talking to companies that had a range of views on these issues. I was struck by the level of fear, anger, distrust. They were very emotional. That’s true on both sides of the debate. That’s an extremely unhelpful dynamic. We’d like to see better cooperation come out of these voluntary agreements. At the end of the discussion if there’s true participation, the level of trust and fear go down. We can’t let fear freeze us. We need to tackle the issues.

Fedele: We’re not afraid either. If you’re an entrepreneur you see everything as an opportunity. We were pirates. One starts up as an arsonist and ends up as a fireman.

Q: The pirates make sure that my films don’t get pirated for two weeks. That’s the type of loyalty. Google tells me how to find the pirated films. The telcos charge for the download. Lots of money is being made, but the artist isn’t making money.

Francis: The end of the day, the point of the tech is to enable us to communicate. The artist is king.

Q: [me…except I didn’t get called on: Author’s rights, sure. But what are you doing to institute and expand Fair Use to protect the rights of readers/re-users?]i

Categories: copyright, culture, open access dw