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Committee Opinion | Doc. 12142 | 10 February 2010
Rethinking creative rights for the Internet age
(Former) Committee on Economic Affairs and Development
A. Conclusions of the committee
(open)The Committee on Economic Affairs and Development congratulates the rapporteur, Mr Arnaut, and the Committee on Culture, Science and Education for this very important report, which it fully supports. The committee is convinced that copyright encapsulates several of the major challenges, both current and future, to contemporary society, namely the growing dominance of new technologies, increasing threats to individual freedoms and the question of fair remuneration of economic activity. Copyright needs protecting now more than ever, as it is the source of our European cultures, and their potential to help our societies and humankind as a whole to reinvent themselves is especially important in these times of economic crisis.
B. Explanatory memorandum by Mr Lambert, rapporteur
(open)1. Introduction
1. The development of information technologies and means
of communication has brought far-reaching changes for both artistic
creation and access to culture. Today, if we want to listen to music,
watch films or read the works of our favourite authors, we no longer
have to go to a cinema, a record shop or a bookshop and pay for
these various cultural products. Culture is not just a commodity
that we can buy: it can now be accessed by anyone who simply clicks
on their mouse. Thanks to the Internet, culture has been democratised
and become universally available.
2. However, this democratisation has also been accompanied by
legislative and economic uncertainties for the writers/artists who
live off the fruits of their creative efforts. Most creative artists
privileged enough to earn a living from their work are paid on the
basis of the number of copies or tickets bought by European citizens.
3. In many economic sectors, including culture, advances in information
technologies have not gone hand in hand with progress in the legal
arsenal intended to protect writers/artists and guarantee them fair remuneration
while at the same time promoting citizens’ freedom to inform and
educate themselves.
2. A heavily penalised economic sector
4. A large number of information-sharing systems and
other file-sharing software known by the term P2P (peer-to-peer)
enable films, music, programmes, software and e-books to be transferred
from one computer to another and from one end of the planet to another
without any payment at all being made to the writers/artists. These
cultural goods, more often than not pirate copies or purchased by
just one consumer, are thus acquired completely illegally and free
of charge by millions of people worldwide, without the creator being
paid a single euro or dollar. In 2007, IDATE (which monitors Internet,
media and telecommunications issues in Europe) estimated at more
than 9 million the number of people in Europe who illegally download
films, music, video games and other programmes via P2P file-sharing.
It reported that 55% of Internet users in France and 59% in the
United Kingdom do so.
5. The resulting loss of earnings, which amounts to huge sums,
penalises both the artists and authors unable to survive as economic
players and entire national cultural creation industries, which
are deprived of capital for the investments needed to respond to
the strong global competition in this economic sector. According
to the Business Software Alliance (BSA), the global association
of software manufacturers, the loss of earnings in the software
sector will amount to €1.96 billion in 2009. Again according to
the BSA, the European countries where software piracy rates are
highest are Greece (57%), Cyprus (50%) and Italy (48%), compared
with rates in other states such as Luxembourg (21%) or Austria (24%).
6. Paid download services have therefore been set up on many
websites for online sales of cultural goods in order to combat this
economic scourge. However, entirely legal downloads are only meeting
with fairly limited success. IDATE, for example, puts the percentage
of French Internet users who download items online in this way at
15%. In the United Kingdom, this percentage is slightly higher,
at 20%.
7. Today, copyright infringements by persons downloading illegally,
resulting in financial losses, are mainly committed by young adults,
many of whom do not have enough purchasing power to take up the
offer of a huge range of cultural goods and to take part in a consumption
binge fuelled by a social model built around the media and a dream
world. In a French survey conducted in March 2009, 
58% of the under 35-year-olds questioned acknowledged
that they had already downloaded or used illegal content.
58% of the under 35-year-olds questioned acknowledged
that they had already downloaded or used illegal content.3. The problem with penalties
8. Legislators face several challenges today, the main
one being the need to reconcile freedom of access to culture with
the fair remuneration of writers/artists. As Viviane Reding, European
Commissioner responsible for the Information Society and Media,
said, “we should give industry legal certainty, content creators
a fair remuneration and consumers broad access to a rich diversity
of content online”.
9. There is also the question of penalties: how can users guilty
of fraud by downloading a film or music item free of charge be punished?
If they commit a breach of copyright, should they be subjected to
financial penalties (such as fines or having their Internet connection
cut off) or judicial penalties, and under what conditions? The bitter
arguments about the Hadopi Law in France and the nature of the authority
with power to impose penalties on Internet users have shown how
complex and sensitive this issue is. A situation where penalties
are imposed on consumers guilty of breaches of copyright is always
on the dividing line between the exercise of individual freedoms
and the commission of a criminal offence. It is also right to wonder
how pertinent it would be to monitor all consumers: fitting a reporting
system to every computer would be reminiscent of the darkest days
of totalitarianism. Furthermore, it is very difficult to implement
such penalties, and they may prove disastrous in households where
the computer is the main work tool.
10. In a number of countries, particularly in Scandinavia, many
people defend the right to free downloading and object strongly
to penalties, which they regard as an infringement of freedoms.
This libertarian outlook has found its political embodiment in the
Pirate Party, founded in Sweden in 2006, whose aim is both to reform intellectual
property rights and to strengthen rights related to the protection
of privacy. The party has been progressing steadily, gaining a seat
at the European elections in June 2009 and striking a chord in both
France and Germany.
11. Penalisation of illegal downloading is not, however, universal
in the various European laws on the subject. In Spain, for example,
the Pamplona Criminal Court delivered a judgment in May 2009 in
which it did not treat downloading from the Internet as an offence,
thereby confirming a precedent set in November 2006. The court considered
that the defendant had not derived any financial benefit from the
download, although he had, in a way, deprived the creative artists
of that same benefit. Moreover, Section 31 of the Spanish Law on Intellectual
Property regards downloading as a right to make a private copy in
exchange for the fee charged on audiovisual media. Everyone must
be allowed to make private copies of their favourite works without
risking penalties. Spain has thus chosen to combine freedom to download
items with a tax levied at source (a sort of “cultural VAT”).
12. The European Union has begun important work in this area.
Following the adoption in May 2001 of the directive on the harmonisation
of certain aspects of copyright and related rights in the information
society, several initiatives have emerged, beginning with the Green
Paper on copyright in the knowledge economy, which was adopted by
the European Commission in July 2008 and proposes opening a structured
debate on the long-term future of copyright policy in knowledge-intensive
areas. In October 2009, the European Commission also considered
the question of the digitisation of libraries following Google’s
initiative in this area.
13. With its virtual library project launched in 2004, Google
plans to digitise several tens of millions of books that have fallen
into the public domain, as well as academic books submitted by some
major libraries and 1.8 million works submitted by around 25 000
American publishers. However, at the end of 2008 the American courts
asked Google to amend this agreement to comply with copyright. Chancellor
Angela Merkel has said she is against this project if it does not
respect copyright. In France, publishing group La Martinière (Le
Seuil, L’Olivier, Points) is claiming €15 million from Google for
breach of copyright following the search engine’s digitisation of
nearly 8 000 titles from its catalogue.
4. Conclusion
14. Today, the economic challenge in the area of copyright
should above all enable writers/artists to be paid for the fruits
of their work. As far as the piracy of cultural goods is concerned,
the ideal solution is yet to be found, as the prohibition on the
downloading of content via the P2P system is still very difficult
to put into practice. Services offering legal downloads of music
and films against payment of a subscription or at a price lower
than that charged in shops still have to be made more attractive.
The question that the Assembly must address today is how each individual’s
freedom can be reconciled with fair remuneration for artistic creation.
A way has to be found to distinguish private individuals downloading
for their personal use from cybercriminals acting for profit. Rather
than imposing legal frameworks which provide only a partial response
to the problem, we will have to find more flexible solutions based
on consultation with economic operators themselves, who are the
main bodies concerned and very often the chief victims of abuses.
C. Proposed amendments
(open)On the committee’s behalf, the rapporteur proposes that the following amendments should be added to the draft recommendation in the report of the Committee on Culture, Science and Education (Doc. 12101):
Amendment A (to the draft recommendation)
In paragraph 5, after the words “cost-free access to the products of artistic, scientific or literary creation”, add the words “even if the freedom to copy for private use must remain”.
Amendment B (to the draft recommendation)
In paragraph 8.3, after “assist and encourage”, add “ – for example by drawing up model clauses – ”.
Amendment C (to the draft recommendation)
After paragraph 8.4. add the following new paragraph:
“investigate what arrangements and mechanisms might help rights holders to receive fair and equitable remuneration, on which the economic operators concerned have been consulted, for access to protected works”.
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Reporting Committee: Committee on Culture, Science and Education
Committee seized for opinion: Committee on Economic Affairs and Development
Reference to committee: Reference3360 of 25 June 2007
Draft opinion unanimously approved by on 22 January 2010
Secretariat of the Committee: Mr Newman, Ms Ramanauskaite, Mr de Buyer and Mr Pfaadt