Panel on New business models for contents distribution on line Chairs: Moderator: Judith Clarés. Lecturer. Information and Communication Department. Universitat Oberta de Catalunya.
Sydney Borjas Piloto, Gerente de Artes Escénicas. Grupo SGAE.
The possibility to compress audio and video have enabled new business models based on digital convergence. In parallel, the regulatory framework has also evolved and made possible that new investors and initiatives can flourish as there is a higher degree of legal security.
It is now possible to opt for a multi-channel and one-to-one model.
New actors have appeared: hardware manufacturers that also provide contents.
Last, the advancements in connectivity/broadband have also enabled that distribution of content online can now to an upper level.
Laws as Sinde-Wert in Spain or Hadopi in France are trying to protect the industry while not injuring citizen rights. And the level of observance of these laws does have an impact at the international level and the prices that have to be paid for accessing content from major distributors (e.g. it is cheaper to buy content from Germany than from Spain).
Another barrier for the advancement of new models is that not all theatres have the latest technology. If theatres were all digitized, multi-platform distribution would be easier as it would be much cheaper than it is now, as it requires different (physical) products for different platforms.
Same with law and the different regulatory frameworks.
Jaume Ripoll, Director Editorial y socio fundador de filmin
For the last 5 years, the music industry has created cool portals that are fancy and trendy, but that do not provide what the user is looking for when they go to the Internet to watch films. The industry has tried to teach the user while the user already knows what they want. We need to know who the users are, where they are, what do they want, when and how.
The industry has to look ahead: yes people buy DVDs and yes people still rent movies on videoclubs, but the future is the Internet, which is what will surely last.
There is too much film production (circa 2,000 films a year in Europe). Too many supply for theatres and DVDs… but not too much for the Internet. And in the Internet, if offered in appropriate ways, there is enough demand for this much supply. And the Internet is not only desktops: it’s phones, it’s tablets, it’s laptops, etc.
The Internet also makes possible to avoid time lapses, to wait for the film to be issued in DVD or for TV. You read the critic on the paper, you see the movie on the Net. Indeed, there still are many places where many films just won’t make it to theatres: why take from that user the experience of watching a specific film?
The one who chooses is the user, not the distributor.
One of the problem, though, of choosing… is having to choose itself. How can the user tell from 2,800 films (the actual library at Filmin) which one to choose? Filmin offered, instead of categories of films, moods for films (“want to remember my couple”, “forgetting about my kids”, etc.)
To do that, it is important to create strong networks of distribution with other “filmins” around Europe.
Content is now consumed in several platforms, anywhere. It is thus essential to have agreements with (a) content providers and with (b) device manufacturers. Thus, the distributor can provide access to any kind of content from any kind of device.
We have to be aware of the different types of users: some users are used to the TV, so it is important to bring digital content to the TV, i.e. the smart TV. On the other hand, there are digital natives that use technology as a natural thing and have an upper level user experience. New initiatives have also to be aware of these digital natives.
There are several consumption models: video on demand (VOD), subscription, electronic sell-through (EST) or purchase, etc.
The user wishes everything: anything, anytime, anywhere.
Key factors to consolidate video on demand: prices, regulatory framework, windows. Prices should be lower, but the fear of cannibalization of other supports does not allow (yet) for cheaper prices. Until a critical mass is reached that pays back the possible cannibalization of other formats, prices will keep being relatively high. Windows of release definitely depend on major distributors and theatres reaching an agreement, but there is a trend towards openness and flexibility.
Communications on fundamental rights Chairs: Miquel Peguera. Senior Lecturer, School of Law and Political Science (UOC).
Constitution 2.0 and Rule of Law: on the Iceland Constitution. Pere Simón Castellano, Derecho Constitucional de la Universitat de Girona.
Even if everyone has to obey the law, it is also true that theory and practice of Law are somewhat different things. ICTs may have also helped in this dichotomy from theory to practice, affecting the rule of Law.
Transparency and participation have, on the other hand, also changed the landscape of law enforcement and its efficiency.
The case of the Iceland Constitution is a very good example of this change of paradigm. The whole process, all the debates and conversations were either streamed or published online.
But can the Iceland case be extrapolated to other places with more population? Does it scale? Is the citizenry ready for more doses of democracy? Will people be eager or able to participate more intensely?
Redefining the isegory: open data citizens. Helena Nadal Sánchez, Departamento de Derecho Público de la Universidad de Burgos; Javier de la Cueva González-Cotera, Abogado.
Why isegory? Our actual challenges are very much like the challenges that had to face our ancestors. Technologies might be a little bit different, but they are technologies anyway. Open data is a new way of understanding freedom of expression, the capability to participate and engage in citizenship.
The initiative Adopt a Senator showed that citizens are usually more careful and efficient in providing good data on public issues. They work better for democracy through transparency.
The principle of demarcation: data traceability should be under certain criteria, like validity: that is, truth may not be necessary, but formal rigour is absolutely a must. Coherence of data. A heuristic in 4 stages has been drawn so that validity can be assessed depending on its traceability.
Isegory breaks with hierarchy and the deterministic approach to history. Citizenship is liquid and it is on a daily basis, on doing, that institutions are built. Permissions have to be dealt with under the light of freedom of expression, not intellectual property.
Data preservation and illicit actions in matters of intellectual property: a constitutional vision of the Directive 2006/24. María Concepción Torres Díaz, Profesora de Derecho Constitucional, Universidad de Alicante.
What is the possibility and/or the impact on law that ISP reveal personal data in case of infraction of intellectual property rights? What are the rights affected? Privacy, data protection, secret of communications, intellectual property rights. Which is the priority? And in case where priorities were fixed on whether the crime is felony, how do we describe what constitutes felony?
In principle, personal date have to be available for research purposes, and detection and prosecution of serious crime.
Thus, depending on each specific case, it has to be accurately assessed the purpose of disclosing personal data. In any case, the Court of Justice of the European Union allows the disclosure of personal data if the national law (in this case in Sweden) also allows this disclosure.
The balance between intellectual property and data protection: on the changing weight of a new law. Gloria González Fuster, Researcher at Vrije Universiteit Brussel (VUB), Research Group on Law Science Technology & Society (LSTS) (Belgium).
SABAM (the Belgian authors association) in Scarlett Extended vs. SABAM and SABAM vs. Netlog asked for content filtering because of copyright infringement. Both cases have been partly cited as good examples for voting against ACTA.
Historically, the Court of Justice of the European Union has been inconsistent and changing on the way it has approached data protection when the later has been confronted against intellectual property rights. The problem has always been finding the correct balance between data protection or privacy and intellectual property rights.
In the cases of Scarlett Extended and Netlog, the Court of Justice of the European Union states that imposing filtering systems does not respect the fair balance between intellectual property rights and the right of personal data protection.
The “Ley Sinde”: a lost opportunity to regulate online entertainment in Spain. Ercilia García Álvarez, Catedrática Facultad de Economía y Empresa Universidad Rovira i Virgili; Jordi López Sintas, Profesor Titular de Universidad Facultad de Economía y Empresa Universidad Autónoma de Barcelona; Sheila Sánchez Bergara, Estudiante de Doctorado de la Universidad Rovira i Virgili.
Recently, there have been new practices in online entertainment that carry with them new legal tensions and legal answers to these tensions (both at the academic and legislator levels). But these answers have not really fit reality or practice. History has shown that there is an unbalance or bias towards intellectual property right holders, and users are usually last in line.
The Spanish “Ley Sinde” has not solved any of these problems. There are neither changes in consumption or practices nor in business models.
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.
Online Entertainment and its implications in fields such as, among others, the legal framework of audiovisual communications, the liability of intermediaries, legal aspects of videogames and online gambling, social networking sites, behavioural advertising, privacy, data protection, defamation, protection of minors, intellectual property, new models of content distribution, user generated contents, illicit and harmful contents, net neutrality, new generation networks, antitrust.
Papers may also focus on:
Legal issues relevant to the current status and future perspectives of the Internet, such as, among others, online privacy, data protection, intellectual property, ISP liability, freedom of expression, cybercrime, e-commerce.
Issues regarding electronic government, such as, among others, open data, reuse of public sector information, political participation online, e-procurement, Internet governance.
Interested participants should first submit an abstract (a 300-word outline) of their paper by 20 December, 2011, indicating clearly its subject and scope, and including a provisional title. There is no need to use a template for submitting the abstract. The abstracts received will be peer-reviewed and authors will be notified of the outcome by 10 January, 2012.
Authors of accepted abstracts will be required to send the full paper by 26 March, 2012. Full papers should not exceed 8,000 words in length, including notes and references. For the full paper authors should use the conference template that will be available to download from the web. The full papers will be peer-reviewed as well. The outcome will be notified by 16 April, 2012. Final version of the paper (camera ready) should be sent by 30 April, 2012. All papers accepted will be included in the electronic proceedings of the Conference, which will hold an ISBN number. Accepted papers may also be selected for oral presentation at the Conference.
Important dates
Abstract submission: please submit a 300-word outline by 20 December, 2011.
Notification of acceptance of abstracts: 10 January, 2012.
Full paper submission: please submit the full paper by 26 March, 2012.
Notification of full paper’s acceptance: 16 April, 2012.
Final version (camera ready): 30 April, 2012.
Please send all submissions by electronic mail in a .DOC or .ODT document to: uoc.idp2012@gmail.com
