The Legal Affairs Committee in the European Parliament has approved the resolution to extend the copyright term, as we have discussed in the past, from 50 years to 95 for recordings. This will now move on to a plenary vote in March.

Opposition for the extension has been considerable. Last month, the Open Rights Group (ORG) held a roundtable with several academics and MEPs, including at least one member of the Legal Affairs Committee, while scathing critiques on the proposal have appeared in influential newspapers over the past year.

Crucially, the main ‘benefit’ touted by Commissioner McCreevy – that it’s for the benefit of session musicians and the like – is significantly weakened by an amendment from the committee that gives the administration over to collecting societies. Of course, that’s assuming you can prove your entitlement to this money. According to veteran producer and musician Mike Collins, speaking at the ORG roundtable, records relating to session musician participation were not common until recently.

Perhaps worst of all, the commission has now been asked by the committee to perform an impact study based around extending the term of video performances by a similar amount. Although the study will doubtless find that there will be little benefit to any but the major content producers in performing such an extension, it will likely be ignored (as the study that said the same thing in this case was ignored) and the proposal will proceed.

There is a slight ray of hope though, in that there is a requirement to review the social situation of artists in 3 years time, and then every 4 years, to see how this has improved things. This might curtail any further extension on this subject, but the non-existent change in artist benefits from this, might prompt them to put things back how they were. Or, they could decide to make the terms even longer….

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At this stage, little is known about ACTA, but what we do know is that the RIAA has put forward some radical proposals. One of their suggestions was to force ISPs to become ‘copyright cops’, ordering them to filter out pirated files on their networks, and making the ISPs liable if they fail to respond to the demands of copyright holders. That, in addition to the request for an official crime unit to track down and bust alleged pirates.

Most governments that have commented on the ACTA negotiations have refused to reveal any information about its contents, but were quick to refute rumors. According to the New Zealand government (ppt), ACTA is aimed at commercial piracy only, and no one has to be worried about getting their iPod through customs. Nevertheless, they also stress that “draft versions of the text will not be made available.”

According to the FFII, all this secrecy goes against EU regulations, and in response they have filed a complaint with the Ombudsman against the EU Council for concealing ACTA documents. “Making agreements to keep texts secret goes much further than allowed. The Council deliberately obstructs access to ACTA documents,” FFII analyst Ante Wessels commented. FFII requests that the documents should be made public. Alternatively, the EU could withdraw from the negotiations, they say.

Bottom line is this: we don’t know what the plans for ACTA are, and it is impossible to remedy this since requests for information are denied at all levels. There is no good reason to keep them secret either, other than to prevent the public and other institutions voicing their opinion on the proposal before it is signed. Convenient perhaps, but not very democratic.

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The amendment, drafted by Guy Bono and other members of the European Parliament, was supposed to put a halt to the march of the anti-piracy lobby. However, despite the fact that is was adopted by an overwhelming majority, with 573 parliament members voting in favor with just 74 rejections, the European Council went against this democratic vote.

In September, Bono stated in a response to the vote: “You do not play with individual freedoms like that,” going on to say that the French government should review its three-strikes law. Sarkozy had other plans though, and in his position of President of the European Council, he convinced his friends this Thursday to reject the proposal.

The rejection also goes against conclusions from the EU culture ministers last week, who sided with the more balanced view of the European Commission, by encouraging copyright holders to work on offering “high quality, accessible, easy to use and consumer friendly” content online – instead of chasing pirates.

Guy Bono was appalled by the recent decision of the Council, which he referred to as “an arrangement between friends.” Not all is lost though, the amendment might pass in January or February 2009, when it will be proposed again. However, as Bono noted, this initial rejection is likely to result in a negative image of European democracy.

It seems that the lobbying efforts of the MPAA, RIAA and others have paid off, and for France and other European member states the road to a ‘three-strikes law’ for alleged pirates is now wide open again.

In France, Sarkozy will now go forward with implementing his controversial three-strikes law. We can only hope that other European countries wont follow this example. What a great demokarzy Europe has.

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Both the MPAA and RIAA have pushed other countries to adopt similar legislation as well, but it will be hard for them to succeed in Europe. In April, the European Parliament spoke out against these anti-piracy measures, by saying it would be “conflicting with civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness”. Yesterday, this statement was backed up by an official vote.

The amendment, drafted by Guy Bono and other members of the European Parliament, was adopted by an overwhelming majority. 573 parliament members voted in favor while only 74 rejected. Satisfied with this outcome, Bono stated in a response to the vote: “You do not play with individual freedoms like that,” and said that the French government should review its three-strikes law.”

The vote was welcomed in other member states as well. Swedish EU parliamentarian Christofer Fjellner said in a comment: “What’s important about this decision is that now it’s clear that you can’t force [internet service] providers to ban people from the Internet without a legal process.”

It is scary to see how lobby groups are awarded powers that should only belong to law-enforcement agencies. Evidence should never be collectedly by parties who gather it in their own interests, and it is a relief to see that the European Parliament agrees on this.

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Perhaps the biggest incongruity that came from the announcements about it, is the feeling that session musicians, after being paid for the last 50 years for a single days work, need, all of a sudden to get another 45 years of payment.

You can bet the guy that put paper in the printer, that spat out the plans for McCreevy’s house hasn’t gotten paid for the last 50 years. I’ll bet the architect hasn’t either. However there is some reason that musicians, particularly jobbing musicians without the talent or ambition to head off on their own, should be paid for work of decades past. The press materials put out by the commission tries to spin a brave face on this, with the likes of frequently asked questions, and number 7 asks the question we all have:

7. Have performers not earned enough in the 50 years of protection?

Most performers or singers and session musicians start their career in their early 20’s or even before. That means that the current 50 year protection ends when they will be in their 70’s. Current life expectancy in the EU stands at 75.1 years for men and 81.2 years for women and it is usual for persons to live well into their 80’s and 90’s. Once protection has ended, performers no longer receive any income from their sound recordings. For session musicians and lesser known artists this means that income stops when performers are retired – the most vulnerable period of their lives.

Alas, they have overlooked one important fact. When someone retires, they cease getting paid for their work, since they are NO LONGER WORKING. That is what retirement means. If these session musicians haven’t worked since 1967, they have been retired for the last 40 years. Can we look forward to the Commissioner putting forth more legislation allowing nurses, gardeners, factory workers, mechanics, lorry drivers etc. to retire at 30 as well, safe in the knowledge that they will have their money woes cared for?

However, there was not all doom and gloom as a result of today’s meeting. Two other proposals were also passed that were in some way, better for the artist AND the consumer. First, part of the provision of extending the copyright is a requirement dubbed ‘use it or lose it’. It allows musicians to recover their copyrights from labels, if the label no longer wishes to market the recording. If, after a year of no commercial availability, then the copyright will be rescinded. This could be seen as an attempt to force recordings back into the market, but it will remain to be seen how effective this will be, or how it will be enforced. If selling copies only at a small back street shop in a small town would qualify, for instance.

Of course, of greatest interest to us, is the actions to deal with the royalty collection groups. Until now, they’ve had country monopolies. You play a song in public, and as long as it’s under copyright, you’ve had to pay a fee, regardless of the artist wishing the collection group to do so. As the final shake up of copyright reform, the national franchises such groups have enjoyed (like cable TV companies) will be broken up, and artists will be able to sign with any agency they desire, bringing about, the commission hopes, competition.

However, none of this is binding yet, as it has to be approved by the Parliament. It is worth noting however, that the proposal document lists the history behind the proposal. That in 2004, they issues a call for comments, and later had meetings with certain stakeholders. Stakeholders in the EU context means businesses involved with the subject, not citizens. Tellingly, the proposal itself lists where it seems to have gone wrong

Summary of responses and how they have been taken into account
Responses in favour of term extension came from performers’ associations, the recording
industry, collecting societies, music publishers, performing artists and music managers. Those
against term extension were telecoms, libraries, consumers and public domain companies.
The arguments of those against term extension were addressed in the analysis of impacts of
the various options.
• Collection and use of expertise
There was no need for external expertise.

From first looks at the impact study, it would appear that it only concerned itself with those who have created and published music in the 1950s and 1960s, and the cost difference between public domain, and copyrighted music. A study that had it’s conclusion written into the brief, and hardly representative of the real facts.

Euro-sceptics have disliked the EU for years, and with the increasing evidence that, in this case at least, commissioners are being lead by their wallets, rather than by common sense and the interests of Europe, it’s a sad state of affairs for a body described as “the only body paid to think European”. Clearly, ‘European’ is a euphemism for ‘greedy’, or possibly ’short-sighted’.

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The proposal is supposed to secure the pensions of long forgotten artists. In a statement, McCreevy said “I am not talking about featured artists like Cliff Richard or Charles Aznavour. I am talking about the thousands of anonymous session musicians who contributed to sound recordings in the late fifties and sixties. They will no longer get airplay royalties from their recordings. But these royalties are often their sole pension.”

According to the Financial Times, the proposal could come up to vote as early as this Wednesday, July 16th. Also up for discussion would be a plan to split up rights societies by the antitrust arm of the commission, potentially making rights societies compete against each other for the rights to collect royalties from artists.

While this would certainly be a better way to curb their less than philanthropic actions, if it comes at the cost of greater copyright, is it that beneficial to the 500 million citizens of Europe? There is a glimmer of hope though. Two commissioners are opposed to the extension plan; telecoms commissioner Viviane Reding and commissioner Antonio Tajan.

The copyright extension plans met initial scorn back when they were first announced in February, with groups like the Open Rights Group and the EFF launching a petition to have it blocked, as well as a website to deal with the issue. Nevertheless, McCreevy kept on going, and the proposal is now ready to be voted on.

McCreevy himself has his pension already planned from a former partnership in a chartered accountancy firm (and he has been in politics since 1977, so he clearly planned early). It is left to wonder then why he feels the need to legislate some sort of speciality pension for artists. If they decide to stop work at 25, why should they be paid for it past 75? If that has been their only source of income, why could they not have done as the hundreds of millions of other EU citizens, myself included, and planned for their retirement?

Commissioner McCreevy had not replied to a request for comment at the time of publication.

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When asked about the purpose of the memo in 2006, party spokesperson Peter Eriksson said: “Our aim is to make laws in line with the new technologies. The other option is to pretend that you can go on like you always have, although it’s practically impossible. Reality has changed.”

One of the driving forces behind the recent “I Wouldn’t Steal” campaign from the European Green parties was the Swedish politician Carl Schlyter, and his initiative seems to have spurred others in the party to join the debate. Earlier this week, an editorial was published in two local Swedish newspapers. It was titled “Filesharing is not theft” and was written by Akko Karlsson, member of the Swedish Green Party’s executive board.

In the editorial, Akko argued that filesharing can’t be compared to theft, as theft is when someone takes away the possibility for another person to use something, whereas filesharing only creates a new copy without erasing the original.

“For me, this is a generation issue,” said Akko Karlsson when TorrentFreak asked her why she decided to write the editorial. “You should always endorse the new technologies’ possibilities.”

In her editorial, Akko criticizes the entertainment industry’s failing to enter the information age with working business models:

“You could argue that filesharing hinders some people from earning as much money as they would have if filesharing was not possible. But now it is possible, the technology is there, and then the industry needs to find new ways of handling it. They’ve had the chance to work on new ways for 10 years but haven’t come up with much else than silly trailers that say filesharing is theft. [...] When new technology emerges, it’s not necessarily it that must be adapted to the old ways. Sometimes, the industry itself must adapt.”

Akko further told TorrentFreak that she’s convinced that filesharing, copyright and integrity will be important issues for Green Party in the 2009 elections for the European Parliament and the 2010 elections in Sweden.

“Because there is also the democratic aspect of this,” she says, “There are so many people under repressive regimes for whom filesharing and the Internet is the link to the rest of the world that inspires, gives hope and makes it endurable to fight for human rights and democracy. The state’s control system is expanding. We used to heavily criticize the intrusions of privacy and control systems in place behind the Iron Curtain, but now we are building this ourselves.”

In Swedish old media, there’s currently a heated argument against filesharing, with novelists like Liza Marklund and Jan Guillou using every inch of their weekly columns in Swedish newspapers to lobby for tougher measures. With the trial against The Pirate Bay coming up, the debate has sunk even deeper in the trenches. In this climate, for politicians to step up to the plate with sound arguments why filesharing should be legalized seems like a bold move.

But Akko Karlsson is not alone.

On January 31, an editorial was published in Gothenburg’s daily newspaper. It was written by Green Party’s Lage Rahm, member of Parliament, party spokesperson on IT issues and substitute member on The Committee on Industry and Trade. On the subject of the ongoing case against The Pirate Bay, he called for reason when it comes to impose tougher measures on filesharing:

“Not only is the struggle [to end illegal filesharing] doomed to fail, it also creates a risk that filesharing on the Internet becomes anonymized and encrypted. An increased availability of untraceable networks will make it harder to fight organized crime.”

As an example, Lage Rahm put forward the bust of a pedophile ring with more than 700 suspects in 33 countries last year. This was done by tracking chatrooms, downloaded photos and e-mail.

“Most people realize that the police and copyright interest groups are fighting against windmills. [...] Convicting sentences against The Pirate Bay would have merely marginal effects on the scope of illegal filesharing. More severe is that the hunt will lead to an increased interest for absolute anonymity among Sweden’s approximately 1 million filesharers. Their activity will move to untraceable darknets.”

He focused on the dangers of Internet communities going underground and concluded:

“New technologies mean we as legislators are faced with an entirely new reality. Tougher measures against filesharing means risking the police’s possibilities of fighting child pornography and organized crime. It is worrying that the Minister of Justice doesn’t seem to realize this. For The Green Party, this is one of the main arguments of legalizing non-commercial downloading. [...] The Minister of Justice should leave to the industry to clear up the mess they have made for themselves. Judicial resources should be diverted to fight severe online criminality instead of hunting filesharing sixteen-year-olds.”

So, what does this all mean for the European filesharer? Well, one thing is sure, political parties that actually have power are taking a pro-filesharing stance. A sign that things are moving forward, slowly, but in the right direction.

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The European Court of Justice agreed with Telefonica in its dispute with the Spanish music rights holders association Promusicae. In order to start civil proceedings, Promusicae had asked for the names of Telefonica subscribers, who allegedly infringed copyrighted material by using KaZaA.

The court said that: “Community law does not require the member states, in order to ensure the effective protection of copyright, to lay down an obligation to disclose personal data in the context of civil proceedings.”

This ruling is a huge victory for EU filesharers, whose privacy is now backed by a ruling from the European Court. For ISPs this should be a huge relief as well, and they can finally put their time and effort in working for their customers, instead of against them.

The tide is changing for European filesharers. Last week we reported that the data protection commissioner in Switzerland criticized the infamous anti-piracy tracking outfit Logistep for helping to breach the privacy of filesharers. A few days before that decision, Greens EFA, a coalition of two political parties that currently have 42 seats in the European parliament, launched a pro-filesharing campaign named “I Wouldn’t Steal”.

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In addition the IFPI was also looking for an extension of copyright, supposedly to help artists whose works will fall into the public domain in their lifetime, which is great for the artist but bad for culture. The extension was said to try and bring Europe closer to the protections available in the United States.

According to Danny OBrien at the EFF, the extensions wouldn’t make any sense: “..five Nobel-prize winning economists concluded that “copyright term extension is unjustified both as a protection to current artists (who rarely earn much from far future extensions), or as an economic positive for society as a whole. Yet the music industry, fearful of losing tight control of its own back catalog, still continues to advocate for more copyright, no matter the cost.”

Now, in what will be a huge blow to the IFPI, Danny O’Brien says that the proposals have been defeated.

He says: “Just got word from the European Parliament all three of the filtering/copyright extension amendments were defeated or withdrawn in the committee vote. We’re still waiting on the official record, but if that’s true, it’s an amazing victory — one was originally proposed by the original author of the report, Guy Bono himself, one was voted in by the powerful industry committee, and one was drafted by an EPP-ED member, the largest bloc in the parliament.”

In December we reported that the IFPI had already convinced several European politicians to support the proposals. However, The Committee on Culture and Education from the European parliament made a wise decision not to turn the proposed amendments into European policy.

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