Communications on copyright Chairs: Raquel Xalabarder. Professor of Intellectual Property. Universitat Oberta de Catalunya.
Copyright infringing content available online. Federica Casarosa, European University Institute, Department of Law, Florence (Italy)
There are new actors that have entered the supply chain: citizens/users and intermediaries; new models for content distribution; an increased role for ISP: they collect content from users, they deliver content online; there are blurring boundaries from the different actors, etc.
ISP liability is a sine-qua-non condition for copyright infringement. Thus, ISP have to be noticed of content infringing copyright.
In France, the notice is a set of specific items defined by law, while in Italy it is a case-by-case evaluation of sufficient level of detail in order to recognise the infringing content.
As per monitoring obligations, in France there is an obligation to monitor further infringements with the collaboration of copyright owners; while in Italy there is no ex ante filtering activity (also in case of previous notice on similar content).
There is a crucial difference in the definition of what a hosting provider is between France and Italy. While in Italy there is a distinction between an active and a passive host, in France there is no such a distinction.
Thus, there is a need for harmonization at the European level.
Emulation is the Most Sincere Form of Flattery: Retro Videogames, ROM Distribution and Copyright. Benjamin Farrand, Lecturer in Intellectual Property Law, The University of Strathclyde (UK).
What is the balance from accessing copyrighted works and the right of access to cultural works.
In consoles, you need some hardware to be able to run a specific software. Emulators get rid of this necessity, by making it possible to use software (the emulator) instead of the hardware (the console). This, indeed, also enables the copy of ROM files aside from cartridges. But, is it legal to create emulators themselves?
Usually, reverse engineering (the process behind the creation of emulators) is legal, but the industry claims that emulators damage their sales/revenues. A criticism against this industry claim is that emulators usually come very much later than consoles, and thus only release old games that do not really compete with the current ones. On the other hand, newer consoles do not usually feature legacy games as they are not perceived as being economically viable or profitable, but they do appear on emulators.
Should thus videogames be considered cultural heritage/ public domain after 15-20 years? Should we consider a ‘use it or lose it’ approach to videogames?
The Digital Cloud Recorder: Modern VCR or New Intermediary? Robin Kerremans, consultant with Deloitte in Diegem, Brussels (Belgium); Geert Somers, Lawyer, Partner at time.lex, (Brussels), Affiliated Researcher ICRI-KULeuven (Belgium).
We have moved from the video-cassette recorder (VCR), to digital recorders and, now, to digital cloud recorders (DCR): there are no more boundaries of time that you can record, things you can record at the same time, disk space, etc. They normally provide format shifting, screen shifting, time shifting, live streaming, etc.
What is the legal status of the copy made by a DCR? Can we way that it is the private copy you would have done with a VCR? Is it the same concept of ‘reproduction’ in the sense of Belgian copyright law? According to law, they access legally disclosed source and audiovisual content, so DCR and VCR so far are the same thing. Notwithstanding, copies have to be made within the family circle and used therein. The question being: who is actually making the copy in the cloud, who is the ‘copier’? There surely is a distinction between who is the technical copier and who is the maker of the copy.
Besides, in Belgium exceptions to personal copies include “any medium”, which includes “the cloud”.
The three step (advertising, time of storage, remuneration) is somewhat unclear. Is the copy a temporary technical copy? Is stream-back public communication?
Collective Licensing of On Line Music and the Recent Initiatives in the EU. Enrico Bonadio, Lecturer in IP law – City University London (UK).
Collective licensing is a system under which copyright holders authorise collecting societies (CS) to license their copyright to users: CS grant users licenses covering foreign repertoires, there are reciprocal representation agreements, multi-repertoire licenses (but not multi-territorial licenses, as there sometimes are territorial restrictions as stated in specific clauses), etc.
The traditional licensing system requires authorizations for each country where music is to be licensed, especially in a changing environment where supports are multiple and new ones appearing every now and then.
Maybe a EU-wide licensing would provide successful in making things easier for everyone. Some criticism arises in the fact that it may still be costly for certain commercial users that still require an extended repertoire, that multi-repertoire blanket licences may still have “market appeal”, that there would be a loss of the usual single point of reference, and, somehow, there might be a “repertoire fragmentation”. On the other hand, there could be a possible “race to the bottom”, a detriment to right holders, low-quality management of their works, and, sometimes, even low remuneration.
Some initiatives: CELAS initiative 2007 (Centralised European Licensing and Administrative Service), Pan-European Digital Licensing Initiative (PEDL) 2006, ARMONIA Initiative 2007.
Cloud-Based cyberlocker services for music: other incoming battles in the endless war between copyright and technology? Aura Bertoni, Research Fellow in Intellectual Property Law, Bocconi University (Italy); Maria Lillà Montagnani, Assistant Professor of Commercial Law, Bocconi University (Italy).
What changes are taking place in online music distribution with the advent of cloud computing?
A first problem arises with the very same definition of cloud computing, as it changes depending on what the point of view (technological, economical, etc.) is and what kind of computing services are we looking at (SaaS, PaaS, IaaS). Cloud computing is more an economic model than a specific technology.
iTunes, Spotify or Google’s Music Beta are different initiatives of cloud computing for music, and they already represent an evolution from the former to the latter: the former contemplates consumption as happening offline, while Spotify and Google’s Music contemplate online consumption of music, the latter with an ‘individual public cloud’, very different to Spotify’s.
Spotify is a cloud-based music service; Google Music is a music locker service (MLS) requiring every user to upload every song; MP3tunes is an MLS with single storage method that requires requiring to upload only songs not included in its library; last, iCloud is another MLS with single storage method and songs upgrade.
We have shifted from device-centric to information-centric music distribution.
We have thus to modernise copyright law to accommodate the new reality of music distribution: from the right to exclude to the right to have a fair remuneration; reforming the private copy regulation (what is a digital copy?); defining clear rules for online intermediary liability.
Copyright Limitations, Exceptions, and Copyright’s Innovation Policy Fred von Lohmann. Senior Copyright Counsel at Google
Copyright is not any more about creativity, but also about innovation. That is why we are increasingly seen exceptions or special treatments to initiatives like search engines, space shifting, ephemeral copies, remix culture, etc.
The problem is that we usually have to ask for permission first, and then innovate later, which undeniably hinders innovation, as we cannot always predict what is the kind of “permission” that is going to be needed. A first example is indexing, the way sound recognition works (as Shazam does), etc. all rely on making copies of existing works so that indexing or comparison is made possible. Of course, these are not copies that are going to be used themselves, but as a tool, as means to achieve other goals. How does copyright exactly fit in here? A second example is related to cloud computing.
Courts, safe harbours and fair use are ways to provide some flexibility for experimentation and innovation. Article 5, the adaptation right and the 3 step test have been tools that have worked quite well so far. But we’d rather revise the copyright directive to accommodate it to present times.
Discussion
Javier de la Cueva: we usually speak about books or movies or music when we speak about intellectual property, but I believe that the real revolution in creativity is coming from code. Von Lohman: indeed, a good example of that is all the programmers coding Java that, somehow, they are working for Oracle.
Copyserfs and the Stationers’ Company 2.0: How and why copyright law is evolving away from the protection of authors and toward the protection of intermediaries Greg Lastowka Professor of Law, Rutgers University, USA. Author of Virtual Justice (Yale University Press, 2010)
There is a $6 Bn trade on virtual worlds. Most of it relies on copyright law: from the creation of one’s identity to the very same content that is on the virtual platform. And whose property is a user designed avatar? Whose property are the structures that users create on virtual worlds?
In many ways, users are like peasants that contribute to the wealth of the virtual territory, but the territory is not theirs. The value of virtual platforms is created by users establishing community, not by gatekeepers.
On a pre-user-generated content (UGC) world, a professional created a product, a professional distributed the product, and a user consumed the product in exchange for a payment. In a UGC world, the user also produces, while most of the time, the professionals just maintain the platform where both creation and distribution happens.
Platforms compete to entice popular creativity; users are not paid to produce content; users pay platform to view user-generated content by subscribing to services or “pay” by viewing advertisements.
Critics (Lanier, Keen, etc.): UGC represents a coarser, cheaper culture without information gatekeepers; UGC is only created in limited genres; a large amount of UGC is poor quality; successful UGC creators would jump to join the ranks of content professionals; this is not making money; UGC creators rely on professional firms for tools, distribution and inspiration.
Boosters (Benkler, Jenkins, Shirky, etc.): UGC is more democratic; UGC allosw audiences to “speak back”; UGC is more collaborative.
Prior to 1709, there was a monopoly to the distribution of products. Thus, booksellers had a monopoly on books: they distributed the authors’ books to book purchasers, got money in exchange and transferred a part of it back to the authors. With the Statute of Anne, copyright was granted to authors so that there was competition amongst booksellers. With user-generated content, it is not clear who the author is, who the “bookseller” and who the end book purchaser. So, what is to be done with copyright?
The economic rationale of copyright was, with regard to certain artistic forms, specific to certain technologies of distribution.
Today, certain forms of artistic creativity are actually superabundant and the rationale of copyright does not apply anymore.
There is an added problem, as Marvel Enters. vs. NCSoft Corp shows: the latter provided the users to create their own superhero costumes, which somehow allowed this users to (re)create Marvel superheros’ costumes, thus infringing copyright. Who’s liable for that? Another example is MDY Indus. vs. Blizzard Entertainment. MYD created a software bot that enabled World of Warcraft users to play their characters for them, on an unattended way. Yet another example, Turnitin was sued for copyright infringement as it used students’ papers to run their business. In Facebook, Inc. v. Power Ventures, Inc. claiming that Power Ventures was copying Facebook data for their own purposes.
Some concluding remarks:
UGC platforms are privately-owned and privately-policed spaces /chattels.
If content is not portable the primary economic returns of UGC are obtained by the platform owner, not the author.
The law is evolving away from protecting the creator to protecting the distributor/owner of intellectual property rights.
But we should not kill the tools, the ways to recognize the value of UGC, we have to afford greater latitude for remix.
We should protect the creator interests.
Discussion
Marsden: if many of these creations are personal, can we look at it as personal data and from a privacy point of view? Lastowka: Yes, there is an obvious intersection between privacy and property UGC.
Notes from the seminar for the Summer School 2012 of the School of Social and Urban Politics, Government and Public Policy Institute, Barcelona, 3 July 2012.
These are the random notes I took during the #2 Debate on Democracy and Political Community: representation, participation and intermediation, chaired by Fernando Pindado. It started with Quim Brugué, from whom I took many and interesting notes, and then it was my turn to present — you will only find my slides, which, on the other hand, are quite self-explanatory. At the end a very rich debate took place, and I only took some general ideas as I concentrated fully on it.
Between representation and participation: social and political intermediations Quim Brugué (IGOP)
In politics, there usually is an intermediary, a third party that mediates in negotiations, in conflicts. The commons can be thus seen as a “new” way to get rid of intermediaries, and let the public thing to be ruled in an alternative way. But, is this possible? Can we get rid of mediators?
Ben Said, in Elogio de la política profana, says: if politics is the art of mediation, what is left when we have no politics? If we have no politics, we do have to come up with another way of organising democracies. But participation will not just suffice.
Without intermediaries, micro- and local experiences might work perfectly, but is that scalable to the macro level?
What has the past taught us?
Democracy is the exception. Democracy has only been the norm during a few hundred of years: in the Vth century b.C. during the classical democracy in Ancient Greece, and in the last 200 years of the modern democracy since the Constitution of Philadelphia in 1787. The former one is a democracy without intermediators, and the latter a democracy full of intermediators.
Democracy in Athens was fully against representation: no one was elected to represent anyone as this was non-democratic. Only powerful people could ask to be elected as a representative, thus there was a bias towards power. Representatives were merely executive powers that did what the assembly commanded, and were usually chosen by random methods.
There were no political parties, and there was no interpretation of facts or ideological positioning. Democracy was totally direct and opinion shaping happened during assemblies that used to deliberate for hours. They had slaves that worked for them, which made it easier to participate in politics: only citizens could participate. The citizen acted not on selfishness, but thinking on the common benefit. Aristotle said that a citizen was someone that knew how to rule and how to be ruled upon.
Greek democracy was a strong democracy: it believed that there was a better future if people worked together and had common goals or projects.
Modern or liberal democracies, on the contrary, is a highly intermediated democracy. It is based on a strong non-confidence on one’s peers to rule and be ruled. Liberal democracies are built to protect property and the mass is seen with fear and little capable to deal with public issues. The US Constitution builds a dense mesh of intermediators to separate people from power. Citizens can just glance up power in a blurry image.
The concept of citizenship in liberal democracies is a very individualistic one: people look for themselves and not for the common good, the citizen is absolutely selfish, whenever we become dreamers in common, we are becoming the dictators’ of the others’ dreams. The citizen is more a customer of the State rather than a citizen that takes part of it.
Greek democracy ended up as total failure. Assemblies were crowded out by specialists (demagogues, sophists) that mastered the art of dialogue. But they had not any responsibility on what was decided in the Assembly. Thus, dialogue was killed (and Socrates too…), and worst decisions were taken.
And liberal democracies are increasingly being seen as a total failure too. It is becoming unacceptable for the citizen to be totally alienated from power and decision-making.
Conclusions?
We need intermediation, but we need to bring power closer to the citizen. There is a need for politics. But politics must keep a certain distance from the citizen too, to avoid populism, to try and be objective, to be able to provide answers.
Intermediation is also about deception: neither for you nor for me. It is about finding a middle point. And politics also needs authority, enforcement.
We need politics. But, surely, we also need another kind of politics. One that is strongly based in confidence, and confidence that goes both ways: from the State/politician to the citizen and from the citizen to the representative.
And if the citizenry does want to move towards a more direct democracy (like in Athens) is it absolutely necessary that it has to abandon the position of being a customer, and act more like a citizen, an engaged one that participates eagerly in politics.
Do we need political intermediaries in a Network Society? Ismael Peña-López (UOC)
Q: what networks? physical vs. “real” –> the example of stay at home mums, crafting communities, rare diseases, etc. which work online and offline.
Guillermo: what about the commons? –> the processes as part of the common wealth
Óscar Rebollo: less knowledge and more interests –> informed voting.
Óscar Rebollo: engagement vs. slacktivism? –> explicitation of interests, aggregation of interests
Óscar Rebollo: technology is not neutral. Are there hidden interests behind technology?Who controls the technology? What is the price for using that much technology?
Q: do we need a new concept of citizen? –> put more responsibility in the citizen; and we do need a new concept of polititian, from maximizing votes to maximizing wellbeing.
Brugué: we are self-satistied of our own digital experiences, while the world keeps getting worse and we remain indifferent to how rulers perform poorly.
Brugué: there is huge intermediation, and it’s called the Network: it is less transparent, less controlled, less engaging into reflection.
Ana: Pedro Ibarra speaks about democracia relacional, to create spaces of contact, of meeting, so that improbable people meet in improbable places and achieve agreement.
Ismael Peña-López: we have to take the habits of:
Being digital.
Being a citizen, and that an expert can be found anywhere.
Being a politician (and a citizen and digital). To “infect” institutions, to turn politicians into “indignants”.
Presentació Prezi:
Peña-López, I. (2012). Calen els intermediadors polítics en una societat xarxa?. Seminari per l’Escola d’Estiu 2012 a l’Escola de Polítiques Socials i Urbanes, Institut de Govern i Polítiques Públiques, 3 de juliol de 2012.
Presentació Prezi:
Peña-López, I. (2012). Calen els intermediadors polítics en una societat xarxa?. Seminari per l’Escola d’Estiu 2012 a l’Escola de Polítiques Socials i Urbanes, Institut de Govern i Polítiques Públiques, 3 de juliol de 2012.
The purpose of my session was to provide a frame to explain while Law is nowadays having more trouble than usual in trying to solve many of today’s problems. In other words, the goal was not to enter in specific issues that Law can difficultly fix, but to reflect on how the foundations of our industrial society are being challenged by digitization and Information and Communication Technologies and, thus, how the Law that was built upon those foundations is shaking from head to toes.
The (long!) session was split in three parts
The Network Society, or how industrial institutions’ feet became of clay, which explains how the end of scarcity and transaction costs in the areas of knowledge is questioning most of our institutions — Law amongst them.
The Web 2.0, or how individuals became mass media, which explains how the addition of the social layer to the World Wide Web has transformed communication, culture and creation as we knew it.
The Internet, or how Law became (even) more complicated, where some specific practices and malpractices are identified on a typical task done through the Internet — and challenging the concepts of who or what is the sender, the receiver, the message, the channel or the code.
Here follow the materials that I used in the session and a short collection of bibliographic references.
The Network Society, or how industrial institutions’ feet became of clay
Peña-López, I. (2010b). “Towards a comprehensive model of the digital economy”. In Proceedings of ICTD 2010. 4th ACM/IEEE International Conference on Information and Communication Technologies and Development. London: IEEE.
The European Commission is in the process of reflecting the past, present and future of telecentres or, in general, public Internet access points (PIAP) or, even in a broader sense, e-Inclusion Intermediaries (eI2).
Amongst others, there are four important issues that are guiding this reflection:
What has the impact been so far.
How has the techno-social scenario changed since they were initially born: increasing adoption of ICTs, importance of broadband, mobile Internet, etc.
How has the socio-economic scenario also changed, i.e. the economic and debt crisis in Europe.
According to the preceding points, what should be done in the future and how, that is, how public policies to foster the Information Society should be designed in matters of universal access/usage.
In this framework, the Institute for Prospective Technological Studies (IPTS) organized an Expert Workshop on Measuring the Impact of eInclusion Intermediaries in Europe: towards an impact assessment practice?, that took place in May 3-4 in Seville, Spain, and to which I was invited to participate and to contribute with a position paper.
My position paper should verse on the future of telecentres in Europe in 2020, and it was supposed to be what I call a “grounded opinion”: grounded, because it is based on both personal/professional experience and lots of readings; opinion, because, all in all, I was asked to provide my own point of view, what would I do was I to design the policy that would deal with e-Inclusion Intermediaries.
Position paper: eInclusion Intermediaries in Europe: horizon 2020
State of the development of the Information Society
I believe that the development of the Information Society has come not to a dead end, but near a point of stagnation:
The industry and governments are most of the time still thinking in terms of infrastructures: how much, how are they managed, what is the regulation to bind them and what is they state of usage (usually in percent of saturation).
Users only care about a huge supply of content and services (for whatever the use) and that these run on affordable infrastructures.
This is, of course, a simplification. But a peek at what governments are measuring and what media are broadcasting gives us an idea of the tremendous bias towards the preceding aspects of the Information Society.
The problem with this scenario is that it has no future, as policies centred in infrastructures are targeting an almost non-existent problem:
In general terms, physical access is becoming a minor issue (remember: Europe 2020). It already is, especially if we do not take into account as an indicator “households with Internet access”, but “people covered by access to Internet”.
The former point is due, in part, because many last mile issues have been solved (e.g. with mobile Internet, e.g. with public Internet access points such as telecentres, libraries, cybercafes, schools and many other venues).
The supply of content and services is buoyant.
The missing gap: capacity building
On the other hand, the two growing problems remain unaddressed by public policies:
A stable share of ‘refuseniks’, that choose not to use the Internet for several reasons.
A growing share of citizens that do need digital skills and literacies that they lack or have to acquire when and if possible.
These two gaps have two main consequences:
An ICT sector which a shortage of supply in terms of highly qualified workers and human capital in general.
A quality of usage of the Internet characterized by inefficacy and inefficiency, and that many find will be (already is) the core of a second digital divide, deeper that the digital divide of access and more difficult to fix because of its (human) nature.
State of the question, the missing gap and e-Inclusion Intermediaries
How do e-Inclusion Intermediaries face the state of the question and the missing gap? In my own (grounded) opinion, either they change or they will perform badly.
Telecentres (understood as not-for-profit and for-development-aimed) will suffer from economic resources shortage, because of the economic crisis and because of Internet penetration. Cybercafes (understood as for-profit and comercially-aimed) will suffer from social sustainability shortage, because of the economic crisis (what solutions are you providing?) and also because of Internet penetration.
Most e-Inclusion Intermediaries have traditionally provided or recently began to provide services related to e-skills. The problem is that those skills are becoming much more complex than simple techonological skills and, indeed, it is a set of digital literacies and capacities that is required. Are eI2 responding to that?
In the same train of though of literacies, what we have found in our conversion from an Industrial Society to an Information Society is that we have done quite good in learning or appropriating technologies an to applying/adapting them to our usual processes. But we have definitely failed in improving most processes and socioeconomic transformation is but a good bunch of “good practices” that we all know but cannot replicate.
A forecast/proposal for e-Inclusion Intermediaries
The telecentre should become an eCentre, a centre that is not a physical place, but a reference resource that can actually be located in a specific location, or embeded within an organization. Telecentres should be insourced in other institutions: in a firm, in a civic centre, in a library, in a government, in an NGO…
Complementary to the former statement, many of the telecentre functions can and should be outsourced. There is evidence that the probability of survival of a telecentre is linked to it being part of a telecentre network: share knowledge, share resources, share contents and services. Outsourcing can take the shape of a core+franchises or a flat network. But reinventing the wheel should be forbidden.
If we believe in the insourcing/outsourcing pair, partnerships come naturally: e-Inclusion Intermediaries should complement a shared project with their added value, while other partners should be left to do the same. Partnerships with governments in the field of sheer “for development” inclusion or fostering e-government; partnerships with the private sector to leverage the expertise in the field and sell it for the sake of economic sustainability; look out for firms to be included as targets of eI2.
Of course, purity should be abandoned: no more either telecentre or cybercafe. It’s about e-Centres and it is about to provide knowledge. The function is what matters and not the means: the function is part of the mission, the means are part of the business/operating plan.
But the function is not fostering ICTs, the function is Inclusion. The ICT centre has to become a Centre-on-ICT-steroids. It is the community — the target — what matters, it is about supporting neighbourhoods, schools, entrepreneurs, living labs… not about supporting ICTs. But we do it with ICTs because we believe in its huge potential.
Bermúdez Ferran, I., Peña-López, I., Delgado Alonso, X., Merino Alcántara, M. & Laín Escandell, B. (2011). Qualificació professional: Dinamització de l’Espai TIC. Barcelona: Institut Català de les Qualificacions Professionals. [Follow the link for the Spanish Version. There is a draft version of this paper in English: ask me if you want it]
Sornamohan, V. (2012). “Telecentre Matters: Getting the Basics Right”. In Information Technology in Developing Countries, February 2012, 22 (1). Ahmedabad: Centre for Electronic Governance.
