RNW, 13
February 2012, by Robert Chesal
The YouTube
generation has gained an ally in the worldwide "copyright wars." The
Dutch government wants to change copyright law so new media users can continue
to do "creative remixes" of protected content. The Hague will no
longer wait for the European Commission to find a compromise.
"We
all love YouTube," says Bernt Hugenholtz of the Dutch state committee on
copyright law.
"Many
of the videos we find there are creative remixes of material protected under
copyright. They're mostly for laughs or political commentary, or they're simply
absurd. If we applied the law today strictly, we would not be allowed to do
these things."
Thin ice
Hugenholtz
says European copyright law is outdated because the exceptions it allows for
the use of protected content do not take new technology into account. This also
affects university lecturers like himself who can use copyright-protected
material in their lectures but find themselves on thin ice once they start
showing the same content via digital technology such as electronic whiteboards.
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US vs. European copyright law:
the pros and cons
Fair use is a doctrine in American
copyright law that permits limited
use of copyrighted material without
acquiring permission from the rights
holders.
Examples of fair use include
commentary, criticism, news reporting,
research, teaching, library archiving
and scholarship. The norm isbroadly
defined, leaving the courts far-reaching
discretion in judging cases of copyright
infringement.
By contrast, European law favours
predictability by strictly defining a
specific set of exceptions and
limitations to copyright protection.
No leeway is given to the courts
to interpret these.
Critics say the European rules are
unsuited to deal with the rapid pace
of development in new digital
technology. They also believe the
current EU rules, if strictly applied,
encroach upon fundamental freedoms
of internet users, such as their right
to privacy.
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"Freedom
is a good thing," he adds.
"We
all agree that it's good for creativity, good for laughs, and no one gets hurt.
Copyright holders are not harmed, so it makes a lot of sense to allow this. But
in Europe, where we do not have open norms like the fair use doctrine in the
United States, we can't do these things without infringing the law."
Relax the
rules
Hugenholtz,
copyright law professor at the University of Amsterdam, discussed his views
last Friday with representatives of European governments, the entertainment
industry, internet entrepreneurs, legal experts, journalists and librarians.
They were gathered in The Hague for "Towards Flexible Copyright," a
conference organised by the Dutch government.
At the
conference, Deputy Justice Minister Fred Teeven said he is exploring "a
more flexible system of copyright exceptions that would also work in a European
context." Teeven's suggestion that the Dutch would unilaterally loosen
their rules clearly displeased one of his guests: the head of the European
Commission unit drafting a new directive to harmonise EU copyright law.
Big
business
But the
same idea was music to Marietje van Schaake's ears. One of the leading voices
in the European Parliament on internet freedom, Van Schaake asserts that
decision-making on copyright law in Brussels is being stymied by vested
interests in the entertainment and publishing industries.
We are not
in the business of ensuring that certain big business models prevail and that
fair competition cannot happen," she says.
"We
must ensure that there is competition and a free market but we have to protect
creativity as well. Right now the entertainment industry, for one, benefits
from these outdated laws. These big parties will do all they can to prevent
reform or redesign at all."
New
technology
Fred von
Lohmann, chief copyright counsel for Google, points out that new technology and
copyright have collided many times over the past century, "beginning with
the player piano (self-playing piano), broadcast radio, broadcast television,
cable TV, video recorders and so on." Each of these technologies was
initially seen as a threat by copyright holders, he says, "but each
eventually expanded the market, creating vastly more profits for a wider circle
of people."
Therefore,
Von Lohmann told attendees in The Hague, copyright holders should embrace new
technologies rather than fearing them. And governments should introduce as much
copyright flexibility as possible to allow creativity to flourish.
No creative
crisis
"If
you look at the motion picture industry, you see that they continue to enjoy
very healthy revenues," the Google counsel says.
"On
the other hand the music industry has struggled somewhat. But in the end there
are more opportunities being created by these new technologies than ever
before. There are more bands, using more different technologies to reach more
fans than ever before. So there is certainly no crisis of creativity. There's
more music, more video, more writing going on today than ever before."
Von Lohmann
believes the time is ripe for individual governments in Europe to make their
copyright laws future-proof. Unlike some who have called for a radical rethink
of Europe's legislation, he believes there is enough room for manouevre to
simply modify the current rules.
