Digital Rights Network

Here is another interesting summary of the Creative Economy conference from Dr Johanna Gibson of the Queen Mary IP Researh Institute, University of London. This was posted on the a2k list 2005-10-06. Particularly interesting information on the database directive.

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For the last 2 days I've been at the Creative Economy Conference, as was Michelle Childs. We return for the last day tomorrow, at which the final reports of several working groups will be produced. The Conference is under the name of the UK EU Presidency, but sponsored by significant industry players, including Mechanical-Copyright Protection Society (Platinum sponsor), and gold sponsors Time Warner, British Music Rights, MTV Networks Europe, and Channel 4. Silver Sponsors include Microsoft, BBC, and the Arts Council.

There are 5 working groups:

* Value for All and More of it ("How can all stakeholders across the IP value chain work together to realise the potential of the digital revolution?");

* The Global Challenge ("How to maintain a competitive advantage for Europe's creative economy in an increasingly crowded global marketplace");

* Film Online ("Developments in technology ... Media 2007 Programme");

* From Creativity to Commerce ("How to enable Europe's creative talent to drive successful, sustainable business");

* Licensing: Fit & Fair ("How to ensure licensing that is fit for purpose in the digital environment - with reference to the EU Commission's proposals on collective administration")

Although participants were assigned to a working group (of which licensing was the most competitive to join), I was able to roam a few meetings (I was invited by Department of Trade and Industry, but there in my own capacity). I attended part of the discussions in Creativity to Commerce, Global Challenge, and Licensing: Fit & Fair.

The remit of the Global Challenge working group included a discussion of trade with existing and emerging markets, cross-border enforcement, EU copyright framework, WIPO/WTO, and international interoperability. Having already attended some of the other working groups (Creativity to Commerce; Licensing), where genuine expressions of consensus were solicited from the group, rather than interpreted by the Chair, my overall impression of this working group was frustration with the complete domination of the discussion by industry. Michelle was brilliant, however, in withstanding what often appeared like a dismissal of the perspectives of consumer groups and other "dissenters." Nevertheless, the representation in this group was disproportionately in favour of industry, and my overall impression of the atmosphere in this group was a preference (almost courtesy) towards industry, with this perspective being set up as a priori valuable and indeed the norm.

The debate I wish to highlight was that over the Database Directive. The representatives from the Commission (DG Internal Market) introduced the discussion, outlining the uncertainty with respect to the success and / or necessity of the Database Directive (particularly after the recent ECJ cases of British Horseracing Board and Fixture Marketing; the absence of any similar sui generis right in the US; and the possibility of compilation copyright providing the necessary protection). In response to this uncertainty, a Report is being prepared, and the Commission representative set out the 4 options open to be considered in that report, in the light of these decisions:

1. do nothing and simply wait to see if further ECJ jurisprudence clarifies the scope of the right;

2. considering stakeholders that have an interest in the sui generis right, option 2 is to amend the Directive to correct what might be perceived to be a defect;

3. withdraw the right on the basis that it has not had its intended effect either in law or in terms of economic effect, and allow member states to revert to the system they had previously (sweat of the brow / compilation copyright);

4. look at the viability of the Directive, not simply the sui generis right, with a view to withdrawing the Directive.

Options 3 and 4 were met with some heated (almost emotional) responses from the publishing industry, or at least, from 2-3 individuals (I say 2-3, because the 3rd was rushed in during the debate to beef up the statements of its colleague). The statements were frequently incorrect as to the law (for instance, a statement regarding the absence of publishers' rights) and claimed that the entire objective of this creative economy conference was the generation of wealth for the industry, despite the rhetoric that the conference was for the generation of diversity in creativity and in creative production, of which industry is one aspect. A creative economy surely depends upon not only rights-holders, but also those with whom the products are exchanged. Of note, the publishers also suggested that the database right does no-one any harm and so there's no reason to get rid of it. If the right does no harm (implying that it has no impact on access), then there must be no need for the industry to require such regulation (there is no risk) so one might ask why the right is needed in the first place. Nevertheless, the publishers' interventions were met with reasoned, critical, and informed responses from the Commission. When they demanded to be heard in the form of any impact assessment, the Commission stated that such input would be welcome and that in fact they had been asking for it for some time.

The final recommendations of this group (particularly in the discussion on piracy) to my mind are somewhat misleading in that they suggest consensus where genuinely there was none, and emphasise that the interests at stake are those of the rights-holders and industry, rather than the complete picture of the "industry", as it were, which surely must include the users / consumers. I must add, this wasn't my experience in the other groups. But I do question the balance in representation of user groups and industry throughout the conference as a whole. For instance, some groups had only one representative invited, whereas individual industry groups had several (in some cases a reflection of sponsorship and no more, which is perhaps disconcerting).

During my participation in the Global Challenge discussions, consensus was never effectively sought. This persisted throughout this particular working group (quite contrary to my experiences in the other groups) and it was indeed demoralising. At the drafting of recommendations for this group, consensus of the group was declared by the Chair on several issues, when, in my opinion, no such effective consensus (or anything close) was reached by the group during the meeting. When some of us protested the construction of consensus, we were told the discussion was closed. The only genuine consensus was among the industry representatives, at least, as it is broadly suggested in the recommendations. And yet it is this "consensus" that has been taken to be the relevant and valid one for the purposes of the recommendations.

Full text of the recommendations of The Global Challenge and each of the other 4 working groups will be available tomorrow.

The following is a summary of the conference written by Michelle Childs, Head of European Affairs with CPTech. It was originally posted on the a2k list.

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I attended the Creative economy conference last week in London. The purported purpose of the conference was 'to deliver policy recommendations to the European Commission on behalf of all stakeholders in the creative economy'

The Conference was under the name of the UK EU Presidency but was initiated jointly by the British Screen Advisory Council (BSAC) and the British Copyright Council (BCC). ( and sponsorship from companies like Time Warner and Microsoft) It had the support and participation of the UK Departments for Trade & Industry (DTI) and Culture, Media and Sport (DCMS) and the Directorates General Internal Market and Information Society and Media of the European Commission . WIPO officials were also in attendance.

As we had feared there was no creativity and no economic analysis of the role of copyright and the pros and cons of its use in the digital age . There was no real effort to engage with different stakeholders. It was an invitation only event with consumer groups heavily outnumbered. The whole thing was stage managed to get the right holders views across with as little opposition as possible, using the UK Presidency as an official endorsement. Which the UK Ministers present where more than happy to do.

Summary of Key messages from rights holders :

DRM's are central to the creative economy. 'Piracy' is widespread and must be stopped by the use of criminal sanctions and EU and global co ordination. Mass education programmes should be established to promote an understanding and respect for copyright amongst consumers, particularly the young. Copyright Terms should be 'equalised' ( this is the new tern to be used- not extension) at an EU and Global Level, both in length and application to all rightholders. Problems of access should be dealt with by contract or voluntary action not legalisation. Consumers only 'believe' that they have rights. No private copying should be allowed except that agreed by righholders. Business models are moving from an ownership model to a leasing model for content. Consumer Groups have different views on these things but we won't really listen or try to engage with them.

Comments on Conference It started appropriately enough in the dark where we were subjected to 3 hours of copyright right holders viewpoints with no opportunity to ask questions. This was the Plenary session which was open to the Press. No other stakeholder with an opposing view was allowed to speak. The UK Secretary of State Tessa Jowell gave a speech that could have been written by the rightholders, which gave no acknowledgement to the real concerns that consumers, academics and librarians have about their ability to access knowledge. Instead it basically equated any attack on copyright with an attack on society as whole. The EU economy and the Lisbon agenda depended on it.

To give you a flavour this is how it ended;

If nothing else, we need to understand the power of an idea. Good ideas developed into high-quality creative content are the lynchpin of a knowledge economy. Used wisely, they can lead us towards economic prosperity and success. But if we allow them to be squandered, stifled or stolen, we won't just lose our economic edge; we are also risk losing our raison d'etre./

You can read the whole thing at: http://www.culture.gov.uk/global/press_notices/archive_2005/creative_economy_conference.htm

There then followed a panel discussion with a group of creators. Key messages : I can't create without copyright. People who steal should be locked up as long as possible. We need public awareness campaigns like the anti smoking and drink driving campaigns to educate consumers about why copyright is important, preferably it should be part of the education system. Its unfortunate that most consumers have had negative experiences and 12 year olds and Grandmas were sued but we just need to get our PR better and head our campaigns with creators as we know people don't feel sorry for big corporations.

The next presentations were by ..two big corporations . 1) Thomas Hesse President Global Digital Business , Sony BMG. Key messages: Digital world was 'consumer centric'. However depended on DRM systems to give consumers more 'choice'. Admitted that EU Consumers had had a bad experience with DRMs ( on cd's- crashing computers etc) but this was in the past. Their surveys had shown that consumers only wanted to copy things 3- 5 times any more than that amounted to 'piracy'

2) Warner Bros- started with high tech show reel whose main purpose was to show that they are not really a big US corporation, but are virtually European as they invest heavily in EU content. (So no need to worry that you are passing laws to help US firms).

The rest of the speech was devoted to debunking 10 'myths' including that DRM systems affect privacy, that they are against P2P etc. . He also said that NO PRIVATE COPYING SHOULD BE ALLOWED IN THE DIGITAL AGE.

Again key message: DRM systems are not such much about preventing 'piracy' but fundamental to allow business models that can segment the market into different price points for different activities i.e cheaper to lease a film than to keep it. It would allow more choice for consumers. ( of course these choices would be decided by the right holders)

The opening and closing sessions were filmed and will be available over the next two weeks. See for more information: www.creativeeconomyconference.org

Working Groups

The conference then broke into 5 closed working groups : * Value for All and More of it ("How can all stakeholders across the IP value chain work together to realise the potential of the digital revolution?"); * The Global Challenge ("How to maintain a competitive advantage for Europe's creative economy in an increasingly crowded global marketplace"); * Film Online ("Developments in technology ... Media 2007 Programme"); * From Creativity to Commerce ("How to enable Europe's creative talent to drive successful, sustainable business"); * Licensing: Fit & Fair ("How to ensure licensing that is fit for purpose in the digital environment - with reference to the EU Commission's proposals on collective administration")

I was briefly in the From Creativity to Commerce group ,but spent most of my time in the Global challenge group. It was exhausting, as I was heavily out numbered by rights holders. There was no real attempt to reach consensus or have a dialogue instead it consisted of right holders repeating their usual mantras i.e we need 'equalisation of copyright terms globally and for all rights holders' There was no economic rationale to back this up. Piracy is the main problem and education and criminal sanctions the solution.

It was a bizarre experience. My fellow consumer reps in other groups reported similar experiences where discussion was curtailed if it went against the rightholders views. In short if the right holders wanted legislationnthere was a consensus. If creators or consumer groups wanted legislation for example to deal with unfair contract terms or exceptions to allow access for libraries these were opposed and merely put forward` as concerns.

On occasion this obvious bias backfired. A number of Officials expressed concern to me that there was no real dialogue and that the rights holders position was not evidenced based.

If you raised any alternative views you were attacked. For example in my group the discussion on the Development Agenda at` WIPO started with an attack on the drafters of the Geneva Declaration on the future of WIPO ( see www.cptech.org) as 'ignorant even if they are law professors' ( and Nobel prize winners but he left that out). No attempt was made to really justify this belief. There then followed rights holders claims that it wasn't clear` what the DA` was and that most developing countries supported copyright. People who supported the DA were 'enemies of IP' .The WIPO official pointed out that it would been good to have a developing country there. When I suggested if they really wanted to discuss it they should look at the proposals made by the Developing Countries at WIPO , the discussion was terminated as they didn't have time to look at the facts!. They did have time though to make unsubstantiated claims.

There were extreme reactions to any attempt to review existing rules. For example in my groups DG Int Mrkt officials outlined the policy options in their paper on the Database Directive ( to be issues at the end of this year) These ranged from doing nothing to repeal. The publishers reacted extremely emotionally to this ( see Johanna Gibson's post on the a2k list) .

The Publishers Assoc also predicted the end of private publishing, with only state publishing left, if the Commission even considered changing and of the copyright terms to assist its digital libraries plan.Commission consultation (runs until 20 January 2006)http://europa.eu.int/information_society/activities/digital_libraries/consultation/index_en.htm

Some right holders also showed contempt for data protection. Which in their view apparently should be overridden to pursue copyright infringement. We were told in our group that if data was being kept for one purpose it might as well be used for everything else. Consumer reps pointed out that this was against EU Data Protection laws.

Final Plenary Session

However consumer reps did still manage to get some of our concerns noted in the recommendations. We also slightly spoilt their public PR. In the public discussions, on the workgroups, at the final plenary session, the differences between consumer groups and rights holders and developing and developed countries on copyright also had to be acknowledged . So at best we stopped it from being a completely one sided event. The recommendations from all of the working groups can be found at http://www.creativeeconomyconference.org/Documents/FinalConferencePapers.pdf.

There was also an interesting discussion on orphan works in the Film Online group- where it was recognised by industry reps that this business could be undermined if the orphans works issue was not resolved. There was a great point from the Rapporteur for the group Phillipe Kern who said 'If I was at a conference of social care and said I wanted to take care of orphans everyone would be happy. But in a creative economy conference if I say I want to take care of orphan works people are suspicious.'

The event ended with a speech from another Uk Minister: Lord Sainsbury – Parliamentary Under – Secretary of State - For Science and Innovation,DTI.

Which is anything was even worse that Jowell's . Despite hearing the conclusions of the working groups and the split between rightholders and consumer groups and the limitations on representation` he said that 'the breadth of participation gives the conclusions their credibility'. He said that DRM was an exciting technology that promised consumers more choice and praised the music industry for their innovative business models. His speech is not yet up on the site. I'll post it when it is.

To date UK Ministers have not agreed to meet consumer groups to discuss their concerns.

Charlie McCreevy ( EU Commissioner for Internal Market) was supposed to be there but was fog bound in France. His speech was read by an official and was a justification for the Commissions Recommendation on On line music rights clearance that had been announced that day.

Other 'Presentations' A number of documents were' presented' at the conference. This is misleading. They were never discussed just left at the back of a working group meeting. The purpose of saying they were presented, seems to be to give them the imprimatur of the conference and the appearance that they were somehow endorsed by it. Many of these documents can be found on the website and include e.g a report prepared for and endorsed by the British Screen Advisory Council promotes widespread digital-rights-management programs to manage content, while advising shrinking the "window" between theatrical and DVD releases.

"As a final observation, it is worth noting that the increased range of content available, and of new services offering this content, should lead to an increase in total consumer expenditure on audiovisual services, even if demand for traditional services falls to some extent," the report concludes. "However, significant new infrastructure costs will need to be recouped by the telecoms and cable companies that are enabling new services such as VOD to be launched, and these costs are likely to be recovered in part within the pricing structures of new audiovisual services. Therefore, it is too early too [sic] assess whether the overall impact of the technological developments discussed in this paper will be a net increase in margins for content creators." Read the rest of this story at ExtremeDRM.com: "UK Film Group, Government Pushes 'Widespread' DRM"

Also launched was a DVD of the CREATE principles – drawn up by the Education and communication working group of the Creative Industries IP forum ( A UK Govt sponsored group). These principles are to help build a 'shared understanding of IP' and stand for Creativity ,Respect ,Education, Access, Trust Economics. The UK Govt will be pushing these as apart of its Presidency

While it was mostly depressing to watch, it was useful to be there to hear the argeuments and to talk to officials.

This is the relevant bits of a flier that I was sent when I enquired about the conference. They claim to wish to represent 'the widest possible range of interests across all the EU Member States' and there's an e-mail where you can suggest participants. Did any copyfighting orgs attend the last conference, and does anyone have suggestions how best to follow this up? The conference looks in bad need of some balance...

THE CREATIVE ECONOMY CONFERENCE

TO BE HELD UNDER THE UK PRESIDENCY OF THE EU

5 - 7 OCTOBER 2005, QUEEN ELIZABETH II CONFERENCE CENTRE, LONDON

The Conference is being held with the support and participation of the UK Department for Trade & Industry (DTI), the UK Department for Culture, Media and Sport (DCMS) and the Directorate-General Information Society & Media and Directorate-General Internal Market & Services of the European Commission.

BACKGROUND

The proposal for a Conference to deliver policy recommendations to the European Commission on behalf of all stakeholders in the creative economy was initiated jointly by the British Copyright Council (BCC) and the British Screen Advisory Council (BSAC).

STRUCTURE

The Conference will be held over two and a half days and will comprise Plenary Sessions and Working Groups.

THEMES

The Conference will consider the creative economy and the value of intellectual property, particularly copyright. Plenary Sessions will include speeches from Government Ministers, European Commissioners and senior industry representatives on Creativity, Technology, Business and Law. The five Working Groups will address:

The Creator and Performer at the Start of the Content Chain
New Business Opportunities
Enforcement
Education
Public Access.

ATTENDANCE

There will be 300 participants. A high level of demand for places is expected. The Conference will be attended by Government Ministers, European Commissioners, MEPs, policymakers, representatives of the creative industries including the audiovisual, music and publishing sectors and others in the IP value chain such as creators, intermediaries and consumers. It is essential that the widest possible range of interests across all the EU Member States are represented and places will be allocated accordingly.

ORGANISATION

BSAC is organising the Conference in consultation with a Planning Group. The Planning Group comprises representatives of the BCC, BSAC, DTI, DCMS, and Patent Office in consultation with the European Commission (DG Information Society & Media and DG Internal Market).

CURRENT ACTIVITIES

Plans for the Conference are at an early stage. The themes and agendas are currently being developed.

CONTACT US

Those wishing to take up sponsorship opportunities, suggest participants or to contribute ideas may do so by emailing bsac@bsacouncil.co.uk

contact: Adrian Brazier: 020 7215 1295