Copyright in the Real World

September 9, 2012

I was struck today by a tweet from Neelie Kroes, the Vice-President of the European Commission responsible for the Digital Agenda, which said ‘It is time for #copyright law to be based in the real world’ and linked to her speech given on 10 September entitled {‘Copyright and innovation in the Creative Industries’:}.

Asking for copyright to be based ‘in the real world’ is not really likely to cause a lot of controversy – maybe the odd Second Life addict or World of Warcraft afficionado might argue but the rest of us are bound to agree. But, perhaps because of the change in the weather or the end of the Olympic feel-good factor, I still managed to be slightly irritated by the call.

The speech itself is of course a good deal more nuanced than the tweet. It properly recognises that the Copyright Directive was based on proposals of 1998 and that things have moved on since then. It also recognises the clash between real-world behaviour and existing copyright restrictions. But there are two major flaws in her call for a speedily agreed ‘common European solution’ (not counting a somersaulting leap from life-saving research to MP3s that would make Cirque Soleil envious) and they are not hard to see.

First, Neelie Kroes points out that things are changing rapidly but also acknowledges that it took three years for the EU to get from proposals in 1998 to Directive in 2001. We are not even at proposals stage this time around. Moreover, the EU is now much larger than ever before so it is even harder to establish a common approach quickly. Neelie Kroes rightly emphasises the need for speedy reform but also cites this example: ‘you often find that online licensing restrictions make it impossible to buy music legally. Sometimes, for example, you can’t buy an MP3 across an EU border’. Hands up all those who think that we will be worrying about MP3 files by the time the EU finds a common position. Thought so – just the one hand, and that’s the chap who runs the museum.

Secondly, the EU is no more likely to be capable of recognising the real world over the next period of copyright reform consideration than anyone else in positions of power has been able to over recent years. The Digital Economy Act starkly illustrates the fact that reform will be based not on the real world but on a world of juddering theatrical scenery provided by the main owners of commercial copyright – and the real world users will refuse to suspend disbelief in the way required of theatregoers. Recent difficulties in France with HADOPI probably prove the point too. I have lost count of the consultations that have identified the parties affected by changes in legislative proposals and have listened too much to suppliers and too little to consumers. It does not make me angry – it is just the way of the world. The next EU Copyright Directive will be copyright owner friendly, and who could blame copyright owners for making that an objective. It is not even a bad thing – unless it fails to be based in the real world, as it inevitably will.

Do I have an answer? Of course not. I do think that there is more hope of evolution through case law – with {i}UsedSoft{/i}, {i}SAS v WPL{/i} and {i}Murphy v Media Protection Services{/i} all showing some signs of hope – than is commonly assumed. But the chances of the EU getting it right quickly are nil.

Finally, I would like to share a growing frustration with those few readers who have persisted with this post about an abuse of language that has become the norm. Neelie Kroes focuses on ‘the creative sector’ and practically everything I seem to read in the area of copyright talks of ‘the creative industries’. It is my understanding that pretty well all industries are creative (with the obvious dishonourable exception of the financial services industry), and most are a darn sight more truly creative than, say, actors, singers and film producers. All the latter are of great value of course (except the numerous bad ones) but this colonisation of ‘creativity’ is immensely irritating, devalues many worthy engineers and manufacturers and must stop.