[rohrpost] Berlin Deklaration

[ar at gnuwhv.de]

Noch mal eben zu den Quellen steigen und genau studieren!

Berlin Declaration

To
Mr. Jörg Reinbothe
Head of Unit
Copyright and Neighbouring Rights
Internal Market DG
European Commission

In response to the call for comments on the Communication from the 
Commission to the Council, the European Parliament and the European 
Economic and Social Committee on the Management of Copyright and Related 
Rights in the Internal Market (COM(2004) 261). [1]


---> also ein Lobbytext, da muss man die Leute da abholen wo sie sind, 
statt als fundiautist seine forderungen zu brüllen


Berlin Declaration on Collectively Managed Online Rights:
Compensation without Control

Berlin, 21 June 2004 [2]



* DRM and mass-prosecution of filesharers are not solutions acceptable 
to an open and equitable society.
* Primary goal of copyright lawmaking must be a balance between the 
rights of creators and those of the public.
* Collecting societies need to become more democratic, transparent and 
flexible, allowing their members to release their works under 
open-access, non-commercial licenses.
* With the collecting societies suitably reformed, the successful 
European experience with exceptions and limitations compensated by 
levies should be reviewed for possible application to the on-line realm.
* We urge the European Commission to consider a content flatrate to 
ensure compensation of rightsholders without control over users.

--> darum geht es "withour control over users"

We, the undersigned, are stakeholders in an equitable Information 
Society. As copyright scholars and activists we are concerned about the 
future of the Digital Commons. Especially the Non-Europeans among the 
signatories look to Europe to maintain and translate for the digital age 
a system of exceptions and limitations to exclusive rights and 
collective management of those rights, as has served creators and the 
public well for more than 40 years.

We welcome the opportunity to submit comments on the legislative 
initiative concerning collective rights management in the Internal 
Market. We agree with the EU Commission that collecting societies have 
an important economic, cultural and social role to play in the digital 
age, and welcome initiatives to make their operations more transparent, 
accountable, flexible and efficient. We also agree that Community-wide 
licensing will have a positive impact on the development of markets for 
digital cultural goods, and that soft law such as voluntary codes of 
conduct may not be appropriate or sufficient for creating favorable 
conditions for these markets and for the public at large.

We agree that the central goal for policy setting in this area is to 
“ensure the appropriate balance between the interests involved.” (p. 10 
[3]) We also share the Commission's doubts whether DRM as the only 
solution to compensate creators is likely to achieve this balance. It 
might well end up stifling the development of the Internal Market, 
rather than encourage it.

The markets for the delivery of cultural goods over the Internet are 
still extraordinarily dynamic and new business models are still 
emerging. Failure to explore the full range of policy options could 
waste a historic chance to support innovation and an open information 
order in which an unprecedented number of Europeans can become cultural 
creators. Hasty action could foreclose as-yet untested models. We would 
like you to consider in particular one option currently being discussed 
widely in professional circles that builds on a uniquely European 
experience: a collectively managed content flatrate for the online realm.

Ubiquitous DRM is not a solution to IP Rights Management

The EC states in its Communication that DRM systems “clearly are an 
important, if not the most important, tool for rights management in the 
Internal Market of the new digital services.” (p. 10) Against the 
factual language of the Communication, the term “clearly” sticks out. It 
appears like an incantation intended to make the exact opposite feeling 
go away, that the usefulness of DRM system is not clear at all.

Indeed, the Communication expresses that “in their present status of 
implementation, DRMs do not present a policy solution for ensuring the 
appropriate balance between the interests involved, be they the 
interests of the authors and other rightholders or those of legitimate 
users, consumers and other third parties involved (libraries, service 
providers, content creators…) as DRM systems are not in themselves an 
alternative to copyright policy in setting the parameters either in 
respect of copyright protection or the exceptions and limitations that 
are traditionally applied by the legislature.” (p. 10)

We welcome the critical stance the Commission takes towards DRM systems, 
both in respect of the present state of implementation and on principled 
grounds. We would like to add that not only law but also technology 
experts question the feasibility of DRM on principled grounds. [4]

The Communication calls for "a global and interoperable technical 
infrastructure o[f] DRM systems based on consensus among the 
stakeholders" (p. 11) as a prerequisite for the effective distribution 
in the Internal Market. In reference to a CEN/ISSS report, it also 
states that the few available systems with some market uptake have not 
yet achieved interoperability. We warn against the risk that such a 
standardisation will reinforce the position of already dominant market 
players.

We also welcome the view of the Commission that “the development of 
Digital Rights Management (DRM) systems should, in principle, be based 
on their acceptance by all stakeholders, including consumers,” (p. 4) 
and its recognition that wide acceptance among consumers has yet to be 
reached. Indeed, consumers' reactions to DRM so far have varied. There 
is a growing anger over DRM-protected audio CDs that are unusable on 
some players. [5] There is a clear unwillingness to accept cumbersome 
procedures and different player and registration requirements for 
similar products.

The Communication mentions the “doubts about the viability of the 
available technology” that have been expressed by other stakeholders as 
well, and that “have proven to be a disincentive to use DRM systems.” 
(p. 11) Indeed, commercial users, especially small and mid-sized 
enterprises, are also critical of them, as they present a strong danger 
of enforcing technology monopolies and creating a new oligopoly of major 
distributors whose volume of business can sustain the very significant 
costs of operating a DRM system.

These systems also have the potential to seriously interfere with other 
EU policy objectives, notably citizens' rights such as that to privacy 
[6], services essential to a inclusive and sustainable Information 
Society such as libraries, education, and journalism, the freedom of 
competition, and the freedom of research and innovation. The digital 
revolution holds the potential of a semiotic democracy, the reuse and 
remix culture being one of its most promising innovative aspects. 
Content locked under DRM will destroy the potential of this culture.

* We urge the Commission not to cement DRM as the single-path solution, 
which might be unable to fulfil the expectations held of it.


Collecting Societies Need to Become more Flexible, Transparent, and 
Democratic

We agree with the European Commission that the current system of 
collecting societies lacks flexibility, internal and external 
transparency, and often democratic structures that allow its members to 
influence its decisions. In particular, we welcome the Commission's 
refutation [7] of the mandatory requirement in the statute of collecting 
societies that all rights of an author in respect of all utilisation 
forms of his or her works be assigned, including their on-line 
exploitation. Whatever the justification for this policy has been 
historically, today it needs to be reformed urgently. We agree with the 
Communication that "rightholders should have, in principle, and unless 
the law provides otherwise, the possibility if they so desire to manage 
certain of their rights individually." (p. 19)

We would like to add that this is so not only "in the light of the 
deployment of Digital Rights Management (DRM) systems," but also in the 
light of new open-access, non-commercial licensing models like those of 
the Creative Commons project [8] that already millions of creators 
worldwide have chosen for their works. Authors need more flexibility to 
publish their works under licensing agreements of their choice including 
the freedom to license for use without payment.

Collecting societies should operate in the service of their members. 
They should not overly restrict their members' freedom to set the 
conditions under which others may use their works. The overwhelming 
success of the Creative Commons licenses – three million link-backs to 
works licensed under Creative Commons in little more than one year – 
shows that creators desire the option to share their works with others 
under non-commercial terms. Collecting societies should be flexible 
enough to allow their members the advantages of collective 
representation and at the same time the freedom to be part of the 
emerging free information culture.

* We urge the European Commission to work towards reforms of the 
collecting societies to give choice back to the artists including the 
right to offer non-commercial licenses independent of artists' 
collectively managed rights.


Compensation without Control: A Music Flatrate

Filesharing demonstrates a stark economic reality: shipping bits from A 
to B has become such a low value service that Internet users can 
effortlessly provide it themselves. This is a result of the 
communications revolution that the EU has been supporting actively for 
the last decade. These developments could be good news for the content 
industries, but not if they continue to base their business models on a 
proposition of exclusive service provisions that they no longer hold. 
The content industries are known for their inability to adapt to 
changing tides. [9] This in itself would not need to be of any concern 
to citizens or lawmakers. But when an industry undertakes a major 
re-architecting of the technical and legal foundations of the 
Information Society based on erroneous assumptions and futile strategies 
it becomes a matter of broader legal and policy concern.

The Communication states that “a wider availability of DRM systems and 
services can only bring additional value to both rightholders and 
consumers if it contributes to the availability of protected content and 
facilitates the access of end-users to protected content.” (p. 10) This 
statement is the wrong way around. The current situation is that 
protected content is widely available and accessible to end-users – in 
spite of DRM. The lack of compensation for creators, not the lack of 
availability of content, is the problem that needs solving.

DRM and mass-prosecution are clearly not the answers to the current 
dilemma. It is bad policy to criminalise a sizable portion of the 
population to protect an outmoded business model of a handful of players 
in a relatively small industry. Good policy is to ensure fair 
compensation to creators, free flows of goods in the Internal Market and 
an open market place for providers of value added services. Therefore, 
we suggest that what we need is an Alternative Compensation System 
(ACS), [10] or, as it has also been called, a Content Flatrate.

The basic goal is to create a system which balances the rights of the 
creators and rightsholders and of end-users. By taking advantage of the 
innovative and open character of the Internet, such a system can help to 
promote the development of entirely new markets for digital cultural 
goods. Rather than relying on 'pay-per-use' fees collected directly by 
commercial producers from end users based on pervasive use of DRM 
technologies, we recommend extending to the Internet the practice of 
indirect compensation through collecting societies.

Under the proposed system, rights holders would license their on-line 
rights to a collecting society for collective representation, as they 
already do for many off-line uses today. This on-line collecting society 
would oversee the measurement of transfers of protected works over the 
Internet and then compensate the rights holders based on the actual use 
of their files by end users. [11] The funds from which the 
rights-holders are compensated could be raised through any of a number 
of sources: voluntary subscription payments by end-users or proxies for 
them or levies on relevant associated goods and services, such as 
broadband Internet connections, MP3 players [12] and others, in addition 
to the levies on blank media, photo copiers, and so on which are already 
collected today.

Various players have already indicated their interest in this new 
approach, including music labels, Internet service providers, consumer 
organisations, peer-to-peer software producers, and collecting 
societies. The Commission should therefore consider the existing 
literature on Alternative Compensation Systems [13] in the ongoing 
reform of the European collecting societies. The Commission should 
encourage further studies on the feasibility and potential impact of 
content flatrates, and open up the space for experimentation with them. 
It should also explore further how competition could increase the 
efficiency and the diversification of services of collecting societies.

With such an open system it would be possible to balance the interests 
of the stakeholders, without running the risk of transforming the 
existing free culture characteristic of the Internet and the democratic 
societies which created it – where everything is allowed that is not 
expressively forbidden – into what the US scholar Lawrence Lessig calls 
a 'permission culture' – where everything that is not explicitly 
permitted is prohibited. [14] This would contradict the most fundamental 
policy goals of the EU, seeking to build an inclusive and dynamic 
Information Society.

* We urge the Commission to take into consideration the option of a 
flatrate for digital works to balance the interests of the various 
stakeholders and to create innovative markets and foster an equitable 
and inclusive European Information Society.


Changes to previous EU policy decisions necessary for a Flatrate for 
Digital Works

Community-Wide Licensing: the Collective Solution
We agree with the Commission that Community-wide licensing [15] is 
desirable in the on-line environment. The Communication discusses a 
number of options that the European legislature has. First, it describes 
a compulsory license. “[O]ne could seek to reduce the exclusive 
communication to the public and making available rights to a 
remuneration right subject to mandatory collective management.” (p. 9) 
It continues: “However, since both Directive 2001/29/EC and the WIPO 
'Internet Treaties' WCT and WPPT establish and harmonise these rights 
for authors and the right of making available also for holders of 
neighbouring rights as exclusive rights, it could be held that this 
option is not available.”


A desirable solution should not be foreclosed from consideration by 
earlier decisions that in the light of new developments must be challenged.

* We encourage the EC not to dismiss a solution that might be the best 
possible, but rather to work towards removing obstacles for its 
implementation.


Harmonising Exceptions
The Communication states that “Seven Directives were adopted between 
1991 and 2001, which harmonised rights and exceptions and certain other 
features of substantive copyright law.” (p. 5). In fact, the Copyright 
Directive expressly did not harmonize exceptions, out of respect for 
differences in national cultural traditions. What it did do was to 
prescribe an exhaustive list of exceptions that member states may 
implement. At best, it restricts the range of disharmony across the 
Internal Market. Harmonisation, if that's what it can be called, ends up 
restricting the commons aspects of copyright law that member states can 
grant their citizens. The newly introduced right of communication to the 
public, the making available right, has no mandatory exception at all. 
It is inexplicable how in a highly dynamic area like the Information 
Society – a dynamism that the Commission recognises by pointing to 
various mechanisms of review and monitoring [16] – the possible 
exceptions to exclusive rights that may be needed to balance interests 
in copyright should be limited to a finite list.

* We therefore urge the EC to revise the decisions on exceptions in the 
Copyright Directive in the ongoing review process.


Conclusion

The debate on Alternative Compensation Systems is developing viable 
alternatives to exclusive rights for compensating authors. It proves 
that Digital Rights Management is not the only way to ensure 
compensation of authors and rights holders. In fact, DRM systems are 
poorly suited to ensure appropriate compensation to all eligible 
parties. They are of questionable technical feasibility and social 
appropriateness. Instead of fighting peer-to-peer distribution, 
therefore, an effective copyright strategy for the future will embrace 
the Internet’s advantages. An Alternative Compensation System, renewing 
the uniquely European experience of strong collective rights management 
for the Internet age, can jump-start the development of innovative and 
diversified markets for the delivery of cultural goods over 
communication networks.

* We urge the Commission to carefully evaluate these possibilities, and 
to ensure that adequate room is left in developing copyright law to 
explore these options.


Berlin, 12 June 2004