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In the ending of the Cannes Film Festival, following the debate that took place on March 25th at the European Commission regarding the future directive on copyright, professionals discussed about Brussels first tracks of an European digital cultural strategy. This orientation divides the European audiovisual stakeholders. In the age of web 3.0 and sharing economy, is the old principle of copyright an obstacle to the creation and dissemination of cultural contents? How to find a fair definition of « Europe of the culture » ?
Seeing tomorrow’s Google and Amazon blossoming and flourishing on its land, here is the dream of the European Union, which strives to create a common market of digital culture. In the meanwhile, the American giant is definitely settling in Europe. Monday 30th of March, we were discovering that the establishment in France of a fund for digital innovation co-managed by Google and the general information press editors (FINP) could be extended to other European countries in the beginning of 2016.
On the occasion of the debate that took place on March 25th, the Commission made works circulation, creation funding and future exploitation the cornerstone of the vast undertaking that is the European digital strategy. It appeared that homogenizing the rules between the member-states was a priority to allow a smoother and heavier flow of cultural goods, what seems to follow the most recent technological developments.
The recent starting point of the Commission of March 25th is a report from the European Parliament published in January recommending that Internet links can be authorized even without the agreement of the contents’ right-holders. We must admit that the project had been assigned to Julia Reda, a German European representative… from the Pirate Party.
Removing the geo-blocking
The current state of national legislations related to copyright, particularly strict in France and Germany, raises the geo-blocking issue, the author of the report submitted at the Commission justifies. Cultural contents, such as films or series, are differentiated depending on the platforms, which are exclusively accessible in particular geographical zones. This restriction prevents three million European people living abroad and traveling frequently from accessing the entire European supply.
In France, for instance, some platforms born from contemporary technologies and uses such as Netflix subvert the media chronology such as revised in 2009. This rule stipulated that a movie must be released first in a movie theater. The other dissemination modes are then staggered on a time scale that must allow each creation to benefit from a privileged exploitation window before facing competition from the next one: 4 months after the theater for the DVD and VoD, 10 months for a crypted diffusion (Canal +), 22 months for a co-producer clear TV channel, 30 months for the other clear TV channels, 36 months for a subscription streaming service (source:CSA).
In fact, this constraint, the sign of the French cultural exception, has the priceless interest to recognize the authors and to allow the “small” creators to be maintained in the European audiovisual production landscape.
The EU has been reassuring by affirming to the French press that the Reda report only has a consultative value. Be that as it may, this text gives a orientation that may cause concern for digital culture professionals.
The text supervised by the European MP affiliated to the Pirate party certainly gave pledges mentioning that artists and authors “need a legal protection” — but refused to keep explicitly the notion of “copyright”.
The report submitted by Julia Reda suggests that the exceptions to copyright should be made mandatory, while they were only optional until then. However, “an exception deprives the author of his exclusive right. It is an expropriation, Hervé Rony, Managing director of the SCAM interprets. To leverage them, we must prove that there is an exploitation problem. Yet the report does not do it”.
Moreover, “what is unacceptable regarding Julia Reda, Hervé Rony highlights during the debate of the Forum d’Avignon, is the idea that as negociating with authors brings new problems; the solution is to take back the right of contracting through the exceptions”. Suggesting that exceptions to copyright shoud be made mandatory, while they were optional until now, the European MP Julia Reda insidiously revokes the right to contract, one of the fundamental principle of democracy.
A fair treatment
The SACD (Society of Audiovisual Authors) did not wait for the Senate to decide to audition Julia Reda on May 2nd to publish the call of European directors and scriptwriters pleading for a “fair treatment in the digital age”.
Far from seeking to slow down and partition the circulation of works, “our dearest wish is that our works are seen as much as possible, that they meet spectators and that they are disseminated beyond frontiers, including online” the article remembers. However, these audiovisual stakeholders consider that the Europe of digital culture means maintaining the current copyright rules.
Indeed, a great single market would create the ideal conditions to allow certain big platforms to dominate the market, at the expense of others. This situation would harm the independence and diversity of cultural expression and dissemination.
For now, the contents that people want to read and watch for free are works that have been able to develop as original, singular and committed works, because they were protected by copyright laws since the end of the 19th century. Will these consumers claim in twenty years for a free access to anonymous and standardize contents, released from any intellectual liability and out of any style?
With its Convention on protection and promotion of cultural diversity, promulgated in 2005, Unesco accredits the notion of copyright by setting a compelling legal international framework that assure artists, culture professionals, practitioners and citizens from all around the world the possibility to create, produce, diffuse and enjoy a wide range of cultural goods, services and activities, including theirs.
The European Union, which ratified this convention, must remember that media chronology, or even the protection, in the musical field, of the right during fifty years for artists-interprets and producers are heading in this direction.
Raising the geo-blocking specter as a sufficient reason for deregulating the European audiovisual industry falls under an error of judgment, if not under bad faith, as it has more to do with business practices than with the copyright principle, the opponents to the reform project are raising.
Finally, some observers will remark that Europe should solve the GAFA’s tax avoidance and the piracy problems — logically absent from the Reda report supported by 86 lobbies — rather than attacking the European authors’ rights.
Then should we, in order to build the cultural digital Europe of tomorrow, regulate in an even more concise way the creative and cultural industries, or liberalize the sector by eliminating the last locks?
Reform or not reform?
“Therefore, reform or not reform?” Laure Kaltenbach rekindled during the debate “Should ‘Made in Europe’ copyright be reformed or not?” symbolically organized at the Théâtre de l’Europe in Paris by the Forum d’Avignon? The meeting, that gathered creators and institutional stakeholders from the cultural field, helped raising questions and underlying issues that neither the Reda report nor the debate of the Commission had discussed, namely on which ground the debate stands, if it is wiser to revise the duration of the copyright or the duration of the transfer of rights.
Cultural players did not exclude that the duration of the copyright and of the transfer of rights may be reformed, or that some exceptions may be updated or removed… in the direction of a strengthening of copyright and not of its removal.
Beyond a double economic and cultural stake, the copyright issue surfaces in its cultural dimension at the States level, and regards the national heritage of digital works.
The directive 2014/60/EU guarantees the restitution to a member-state of any cultural good considered as a “national treasures possessing artistic, historic or archaeological value” and having left unlawfully its territory after January 1st, 1993. Until when, if a reform was to dissolve both notions of authors and territory?
Monday 30th of March, in New-York, the American musician Jay-Z shook the audiovisual world by presenting Tidal, a streaming platform “that belongs to artists”. The shares of the company will mainly owned by the composers and interprets whose digitized pieces will be download by the Internet users. Moribund on one side of the Atlantic, here is the copyright debate dawning… in the US.
In the NYC subway, for instance, Public authorities ostensibly support a famous local production, Dark Devil, Netflix.
According to David Lacombled, Deputy director to the content strategy at Orange, it is urgent to invent a “European storytelling on the copyright issues”, because “a purely French project will not take off”. This storytelling that must be accessible to European citizens, who generally do not anticipate the long-term consequences of a reform such as the one wanted by Juncker.
The project of a copyright reform shall be proposed by the European Commissioner in charge of digital economy Günther Öttinger in September 2015.
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