The debate participants, photo: Miłosz Poloch


Ruben Maes

The following debate on freedom in culture took place during the European Culture Congress in September 2011 in Wrocław

9 minutes reading left

Moderator: Ruben Maes

Participants: Rickard “Rick” Falkvinge, Oliver Herrgessel, Ryszard Markiewicz, Joost Smiers, Raquel Xalabarder

Ruben Maes: For the next two hours we will be discussing the future of the copyright law in the digital environment. In childhood we were taught to share things. Nowadays, in the digital world sharing is very easy, but not so fair anymore when we share content that doesn’t belong to us. Which of you, in the last few years, has illegally downloaded music, film, or other content from the internet? (many people sitting in the audience raise their hands) And which of you felt guilty towards the author of the downloaded content? (most of the people lower their hands, the moderator approaches a person whose hand is still raised)

Member of the audience: I couldn’t afford to buy the music CD that I wanted to have. In Poland CDs are expensive. However, I do feel guilty because it was stealing.

R. Maes: Do you own a car?

Member of the audience: Yes.

R. Maes: Did you buy it or did you steal it?

Member of the audience: Of course, I bought it.

R. Maes: So, what’s the difference?

Member of the audience: There’s no difference.

R. Maes: Is there anyone in the audience who doesn’t feel guilty? Someone who believes that it’s just about accessing obtainable information.

Member of the audience: I do feel guilty, but I’d also want to point out, that if I steal a car the owner won’t have it anymore, and when I download a program, there are two programs. These are two different situations.

R. Maes: So, it’s about sharing?

Member of the audience: Yes.

R. Maes: Thank you. Now, I will introduce our panelists one by one, staring with Joost Smiers. In the book Imagine there’s no copyright and no cultural conglomerates (with Marieke van Schijndel as the coauthor – ed.), you are discussing the issues that are the subject of our debate. What is the most important thing in this book?

Rickard Falkvinge and Joost Smiers, photo: Miłosz Poloch

Human rights and the law of the jungle

Joost Smiers: The essential thing is the answer to the question “what kind of society we would like to live in”. Would it be a society with a few major concerns deciding what we read, watch and listen to, or would we prefer a diversity of those companies and enterprises? A society where a bunch of celebrities tells us what is nice, or a society with space for many artists who would be able to make a living by their work? Do we accept censorship – copyright is actually an extreme form of censorship, or do we prefer the freedom to interfere with existing works and to comment on them in our own works?

For me, the answer is clear. Copyright and censorship should be abolished, in order to end the protection of giants, who invest only in bestsellers, and significantly undermine this diversity that we would really need to have. Furthermore, it would enable, for example, the modification of Disney films – if we could do it, they would be better. We should revitalise competition policies and cut the cultural enterprises dominating the market into many pieces, ensuring equal chances for everyone. Artists could present their works without censorship, and the public could liberate itself from the influence of marketing, and make its own choices. I would like us to live in a democratic society once more, to stop being passive consumers and to make our own choices.

R. Maes: Let’s leave some ammunition for the rest of the debate. Our next panelist is Rick Falkvinge, the founder of the Pirate Party. You don’t look like a pirate with a peg leg, one eye and a parrot on the shoulder. What’s the Pirate Party?

Rickard “Rick” Falkvinge: We’re a civil liberties movement of the next generation. We disapprove of the way in which some politicians treat the net – as a toy that you can take away from naughty kids. We believe that the net is an integral part of society – a tool allowing citizens to exercise their fundamental rights. Anonymous access to the unfiltered and unmonitored internet is as fundamental a right, as the rights that we exercise through it. As a politician, I have the obligation to protest if the copyright law and the copyright monopolies allow business interests to take precedence over the citizens’ rights. Business must adjust to the rules enforced by society, not the other way round. Even to the detriment of profits.

R. Maes: Why did you call yourselves the Pirate Party? The associations are not positive.

R. Falkvinge: It was Hollywood that called us pirates because we popularised the idea of “sharing is caring.” Our civilisation has always depended on interpersonal communication, sharing the culture, exchange of knowledge, and now, all of a sudden, all of this is a crime? That does not make sense and it’s against evolution. We decided to take a clear stand about it, and today we are present in 50 countries, in the European Parliament, and we expect to take seats in the Berlin parliament next weekend (in the elections, which took place on 18 September 2011, the Pirate Party received almost 9 percent of votes and, in turn, 15 seats in the Berlin parliament – ed.).

R. Maes: I would like to introduce Oliver Herrgessel, executive vice president for communication, public affairs and marketing at the RTL Group, as well as former journalist. We are talking about sharing content.

Oliver Herrgessel: The idea sounds good only in theory. In practical terms, anarchy or the absence of authority, which have been proposed here, create an exactly opposite situation. If there is no authority, there is the law of the jungle, and in the jungle the strongest beast wins. The digital revolution that we’re facing just now has caused fragmentation, and turned the rules upside down. The biggest brands are still doing very well, because in the situation of confusion people turn towards the familiar and want strong leaders. But not only big corporations benefit from copyright. It is also important for the individual creators and artists because that’s their chance to receive payment for their work.

R. Maes: We’re going to return to this issue in the further part of the discussion. First, let’s have a crash course in copyright. It’s not easy to talk about it, because even if we understand the background, the regulations vary depending on the country, and they change frequently. Luckily, we have Raquel Xalabarder and Ryszard Markiewicz who know everything about the copyright law.

Social pact

Raquel Xalabarder: Before we state that we are allowed to do something because the technology permits it, let’s take a step back and think about the things we could do, but we don’t because we see them as bad and unfair. I believe that copyright is the best tool that we have to enhance creativity, and to enhance the authors, who – as Oliver had mentioned – attempt to earn a living with their work. I agree that it requires fundamental amendments and adjustments to digital reality, but despite all the flaws, it’s still very beneficial. However, it will be beneficial only if we, the society, agree that it’s beneficial. Of course, we can decide that it’s not a good solution.

R. Maes: We are talking about the new conditions of the digital environment, but what are the roots of the copyright law? What was the primary purpose of copyright?

Ryszard Markiewicz: The primary purpose of copyright was to protect the interests of printers and authors. It was supposed to protect their economic interests, but also their moral interest. It was short-term and covered a small range. The copyright law is needed because it reinforces the implementation of universal values, however, it requires restructuring and recalibration to the real needs of the information society. We’re dealing here with a strange type of ownership. Everything we write is immediately protected all over the world by the copyright law. And it should stay this way. The changes that extort new conditions should initially concern potential exemptions and new legal licenses, which have to be invented and applied. Second of all, it’s extremely important to support the Open Access movement. It’s a significant issue associated with the voluntary movement, but also with the scheme for project funding with governmental budgets.

R. Maes: Maybe, due to the general and immediate access to information, the protection ensured by the copyright law becomes theoretical?

R. Xalabarder: The disruption between legal theory and its enforcement is one of the challenges faced by copyright. It’s very difficult to ensure respect for the copyright law. I’m intentionally using the word “respect” instead of “protection” – the property laws of every person have to be respected by the users all over the world without exception. However, there are no tools for efficient enforcement. Therefore, the social pact is important, so that we, a society, agree that somebody else’s property, interest, copyright – whatever you want to call it – has to be respected and enforced.

R. Maes: The three-strikes law cutting off the internet access after three violations of the law is this attempt to enforce the law.

R. Xalabarder: There are many efforts made all over the world, in terms of legalisation as well as criminal justice, however they are completely useless. We, a society, have to answer the question whether we want to do this or not. And that’s it. It’s more a cultural question, a question of values.

R. Maes: Of good manners?

R. Xalabarder: Well, that’s a good start.

Rauel Xalabarder, Ruben Maes and Ryszard Markiewicz, photo: Miłosz Poloch

Gain or loss?

R. Maes: Some people identify piracy with creativity. Is there any connection between creativity and the copyright law?

R. Falkvinge: Many artists are creating not on account of copyright, but despite copyright. The entire remix culture is, to a large extent, illegal, and yet it’s still created, although the copyright law doesn’t protect it, and it may even be punished with jail. Simultaneously, the copyright monopoly is functioning à rebours, protecting the intermediaries rather than the individual creators. We are dealing here with a group of influential intermediaries and the mechanism of “regulatory capture” – regulations which protect them instead of controlling them. The intermediaries’ efforts towards their profitability at the expense of the creators are in compliance with law. The most effective actions are undertaken by the music industry – artists can upload their music online and reach the customers all over the world within seconds, and yet they’re still dreaming about publishing a record. Since the advent of the file-shearing era, the incomes of the musicians have risen by 114 percent, although the sale of copies of records is still going down. They’re finding new sources of revenues that do not depend on the copyright monopoly.

O. Herrgessel: I’ve never met an artist who would claim that the copyright law prevents him from becoming an artist. However, I’ve met many journalists, writers and photographers who – afraid of the thieves of ideas – saw the copyright law as protective towards their creative freedom. I think that copyright is also a guarantor of the free media, and the free media constitute one of the cornerstones of democracy. We have to protect them by copyright.

J. Smiers: The prohibition to use works of other creators threatens democracy. It freezes our culture, and turns us into passive consumers instead of active citizens involved in the creative processes. The argument that the copyright law protects artists is a misconception. Some celebrities make loads of money, and the rest doesn’t make a penny from copyright. There’s a gap resembling that between the incomes of a CEO and an ordinary employee. You have raised the question of the enforcement of law. Business environments ask of the society to designate significant police forces and judicial forces to protect their individual interests. That’s a shame! Are the individual interests more important for the wellbeing of the society than the resolution of problems that we are still not focusing on, such as the rights of women and children, corruption, dirty laundry? Business should be conducted within the market structure.

R. Xalabarder: The copyright system is adapted to the capitalist society that we live in. And this is why it is so useful for corporations that invest in creation. However, it shouldn’t serve to protect the existing business models. The copyright law has always been adapted to technology that we had at the moment. And that’s what we’re facing just now.

R. Maes: According to Joost, the association between creation and the copyright law not only exists, but it is also a negative one, because it is blocking creativity.

Original and copy

R. Xalabarder: The copyright law works in a simple way: it grants some exclusive rights for a limited term to the person who creates something. After this term is over, the work passes into the public domain and everybody can use it. In the long term it enhances cultural richness and creativity. During the time when the work is protected, every act of exploitation requires a license that either results from the law that accepts certain actions – making private copies, education, quotations, parody, or it is granted by the author or the owner of the rights. The only negative aspect of the copyright monopoly that comes to my mind are the transformation rights. By making a decision of how his work can be exploited, not only in the original form but also when it comes to transformation, the author can limit the creativity and freedom of expression of another author who wants to create a derivative work. The discussion whether copyright should extend on transformation right, or whether it should only cover the original work and its exploitation goes deeply into the heart of the copyright law – the definition of an original, of the amount of changes that have to be applied to create a completely new work subject to protection, and of when are we dealing with a derivate work that requires authorisation of the original author. I agree with Oliver that there is nobody who doesn’t create just because copyright exists. However, it is possible, that the copyright law prevents creation of some works similar to the works that already exist.

R. Markiewicz: This situation influences a variety of things. It’s not just about the fact that the legal licenses are too narrowly defined – they only allow quotation and parody. Uncertainty is the worse thing – you are never sure what you can and what you can’t do; which work is subject to protection and which isn’t; how can we draw on a work without violating the copyright law; what is an original, and where does an idea end and the realisation begin. It’s easy to speculate about it, but if somebody comes to me with a concrete example and asks: “Is this a violation of the copyright law?”, I answer: “I think so”, or “I don’t think so”. But what would a court decide? Of this, I’m not sure. If I, with all my years of experience, don’t know the definite answer to this question, how can an author know it? We need to specify the regulations.

R. Maes: Especially when Disney or another big enterprise is one of the parties.

R. Markiewicz: I don’t want to differentiate Disney from a young kid making some drawings.

R. Maes: If I make Mickey Dog out of Mickey Mouse I’ll be dealing with 20 lawyers.

R. Markiewicz: I agree that we have to give more freedom to the creators of derivative works, provided that these new works wouldn’t compete with the original work. It’s easier said than done…

R. Falkvinge: There’s a Latin saying “Ubi non accusator, ibi non judex” – “Where there is no accuser, there is no judge,” sometimes provided in a free translation: “Where there is no police, there is no speed limit.” You can’t separate law from enforcement. What are the social costs of enforcing the copyright law? How to control the illegal transmission of digital works via private communication channels? After all, somebody would have to separate legal information from the illegal ones, and in order to do this he would have to have access to all of it. In result, we would have to give up the right to private communication, give up the whistleblower protection (authors of “leaks” about the-top-of-the-ladder public administration scandals – ed.) for people contacting the press, and also other fundamental rights. Frankly speaking, I am not prepared for such sacrifices for someone’s business interests. The copyright monopoly shouldn’t have access to the bedrooms of honest citizens.

J. Smiers: The concept of “an original” has been mentioned three times already. It’s a romantic idea from the Enlightenment. But does something original really exist? Is Mickey Mouse something original? Absolutely no. It is based on stories that had existed before it. Is Harry Potter original? No, it’s a reconstruction and paraphrase of ancient stories. And there is nothing wrong with it. The concept of “an author” is a construct. It all started in England with business interests and offering the monopoly to the printers. In turn, there had to be someone who would be called the creator. The concept of an author was not given to us by God, but by lawyers. But that’s nonsense. It’s a one thing to respect the works of an author, and another thing to give him an absolute right, according to which his works cannot be touched. The same law forces the creators to keep their hands off the products made by big enterprises, out of fear of their lawyers.

I’ll tell you something. I have a friend in Calcutta, a playwright. We were preparing a performance around the Harry Potter story with a group of friends for their local carnival. Just for fun. And there came a letter from the owner of the rights – the Warner Bros enterprise. They didn’t allow it. So, it’s not only about the fact that you can’t use or modify a certain work – the industry is even trying to control the ambiance and the surroundings created by the works. We live in a heavily controlled society.

O. Herrgessel: I am still not buying the argument for the law of the jungle. The law of the internet says that the winner takes it all. Search engines, online auctions, microblogging, web browsers… The list is long, and basically behind every one of these branches there’s a company with the minimum of 50 to 80 percent market share. I’m not sure if it’s a good thing. Many of the branches I’ve mentioned are closed environments, not open to everyone. In the case of social networking media, if the website decides that we are abusing our rights we will be banned and we won’t even have the opportunity to talk to anyone who could explain why it happened. There is no state authority. I believe that everyone who creates something should be able to decide for themselves whether they want to share their work with everyone in the world or whether they want to have it copyright protected. I’m for contractual freedom.

Olivier Herrgessel, photo: Miłosz Poloch

The Wild West

Member of the audience: I would like to give an example of the destructive effects of piracy. I come from Turkey and a while ago I discovered a label company Cavern Records releasing records by the Turkish minorities. No one else was doing this. The label, entirely independent from the state, existed because people were buying their records. The artists benefited as well. I interviewed the owner of this record company last year and he said that the business is ailing. Everyone is downloading music from the internet for free. It was also confirmed by a Kurdish artist – concerts are his unique source of money. He cannot afford releasing his own records. The cultural effect of piracy is unambiguously negative and it doesn’t just concern the mega corporations. It’s about the small producers and the niche artists who suffer the most.

R. Falkvinge: The CD sales have been falling for a long time. That anyone today even buys them is a sign of the underdeveloped infrastructure. If the net was fully developed, there wouldn’t be any CDs sold. It’s an archaic form of information distribution.

R. Maes: I’ll give another example: someone had made a movie by investing money and energy that he won’t get back, because someone else shared the film on the internet for free. In turn, the author won’t make any more movies.

R. Falkvinge: Unfortunately, there is no such thing as the right to profit. Every entrepreneur is subject to the same rules – they have to deliver something that someone else is ready to pay for. If you can’t do this, no law will save your business. We are currently in a transitional period – some people will find a solution and hit the jackpot, others won’t, and they will lose. We have many tragedies but also many successes ahead of us.

R. Maes: So, let’s return to the member of the audience from the beginning of the debate who said that the content shared on internet is free to use. It’s not a business model at all.

R. Falkvinge: Let me repeat: the copyright monopoly must stay away from the non-commercial arena. It can regulate the book sales in a bookstore, but it can’t sneak into the e-mails I send to my mum. Business models will have to change.

R. Xalabarder: Rick, when you are saying that the copyright law should be only about commercial exploitation, than this is exactly what that record company attempted to do. It’s a good example of the damaging effect of piracy. These issues don’t only concern big or small companies, but all of us – we’ll be poorer if people stop creating and investing in creativity. Therefore, it’s so important that we pay the salaries of those who do it.

R. Markiewicz: I have a few remarks. We can e-mail a book to our mum or a friend – private use is allowed. The uncertain issue is if downloading music or film from the internet is legal. In some countries it has already been decided, in other this issue still raises doubts. In Poland downloading is not an infringement of copyright per se, but the simultaneous sharing of the downloaded content is. In my opinion, the act of downloading from obviously pirate sources violates the copyright law. We must substitute the legal model based on property with a model based on liability rules. What does it mean? That somebody who is using a work without permission has to pay for it.

Member of the audience: I’m a film director and I’m representing the Federation of European Film Directors. In the name of transparency, I would like to ask Mr. Falkvinge who is actually funding the Pirate Party and why do your financial plans include a step about acquiring 10 million dollars from the Silicon Valley. You portray yourself as the counterpart of Robin Hood. What is in the programme of your party that would actually motivate the Silicon Valley to invest 10 million dollars? The scenario of reading your e-mails is exactly what these companies are doing in order to personalise the advertising message. I find it extremely hypocritical.

R. Falkvinge: In the name of transparency, I will try to give as full an answer about our funding as possible. When I realised that our civil rights were at jeopardy I took a large bank loan and quit my job, in order to devote to what I am doing full time. Eventually, that money ran out. So I had started begging for donations and they had assured funding for 18 months before we got into the European Parliament. I am currently formally employed by the European Parliament and our office there. The Pirate Party is not funded, at least in Sweden, by big corporations. It’s true that I did a fundraising tour around the Silicon Valley. The collected sum would have covered a taxi back to the airport. The Party as such is funded by the students who devote approx. 10 euro a month of their student grants.

Circulatory system

R. Maes: Oliver, in the case of RTL, the quality of the program is assured by the investments. Would it be possible without the copyright law?

O. Herrgessel: Of course not. Let’s take the year 2009 as an example, the critical year of the current crisis. In that period RTL had invested over 3 billion EUR in content. Of course, it was possible because the prognoses gave hope for return and reinvestment. Copyright is our circulatory system. If the circulation was interrupted, there would be a question of who would be ready to pay those 3 billions.

R. Maes: I guess, that in the case of popular programmes it wouldn’t be a problem.

O. Herrgessel: Territory and exclusivity have the key significance for television. It’s completely different in the case of music – a hit becomes popular everywhere at the same time. On TV a product is always exclusive. If someone copies it and broadcasts somewhere else, and makes money on advertising, we lose profits. Television is a bit like squaring the circle, because we give our product to the customer most of the time for free, and we pay to the right holders – the creators – at the same time. We finance it with advertising and partially also from other sources.

R. Maes: Corporations can reinvest money thanks to copyright. But isn’t the copyright law abused at some stage?

R. Xalabarder: The copyright law allows investors to plan their investments. Money is one of the goals but also a benefit of copyright. The industries start to abuse the copyright when they attempt to change the law because they want it to allow them to continue their activities in compliance with the old rules despite the fact that the external conditions had changed. The music industry won with Napster (service for sharing MP3 files – ed.), but now, 15 years after the trial, people are still using peer-to-peer solutions and they are still infringing the copyright law. What does a spectacular victory in court mean, if the reality and society are going in another direction? Industries should accept the fact that they won’t have everything, but consumers should also give up something and pay for other people’s creative work. We need a compromise, but not all industries are ready for it.

J. Smiers: Shouldn’t we change the entire economy and think about other priorities, such as environmental questions, social issues, pharmaceutical industry, agriculture? Let’s ask about them, not whether we can watch television for free. We have it for free but we are forced to watch advertisements that include ideological messages, for example about the way to treat women. Advertisements that Oliver and his colleagues make are not woman-friendly, and they are sometimes even racist.

R. Maes: I am a simple consumer. I like this kind of discussions, but I still love music that I download from iTunes to my iPhone. I am more than ready to pay for content produced by corporations, because – simply enough – I like them.

Member of the audience: Not everyone can afford them.

R. Maes: That’s true, 99 cents for a single track.

Member of the audience: There are plenty of people who don’t have those 99 cents.

R. Maes: Those people don’t have iPhone’s either. That’s a subject for another discussion.

J. Smiers: I am not discussing individual preferences, but I know that taste is shaped by advertising and marketing. Freedom of taste? There’s no such thing! If people relied on their own preferences, a simple information, for example that a new film is on, would be enough. The flood of advertising is aimed at convincing those in doubt. Allocating 50-60 percent of budget for advertising is an unfair competition. Is this a normal market? What should we wait for? After all, nobody knows why and when there will be changes. In the beginning of 1989 nobody assumed that the Berlin Wall would fall by the end of the year. We have to be intellectually prepared for the new situation.

Member of the audience: We should ask the authors if they want their works to be copyrighted, or not. I don’t know any author who wouldn’t. Perhaps Joost knows some; maybe your book is available for internet download for free. Rick, you are not a creator, so it’s easy for you to say: “Download everything from the internet”. Perhaps, for artists who give concerts lifting copyright is a good solution, but I don’t give concerts, I am a composer. If my work was for free, I wouldn’t make any money at all. I want to be in charge of my copyrights and I don’t want to give my work away for free.

R. Maes: In this case, is the author in charge?

R. Markiewicz: I believe so. It’s the decision of an author whether he wants to allow somebody to use his music. If yes, he can use an appropriate license, for example Creative Commons, and then it’s a clear case. On a normal market, the copyright law could exist without changes, but on the internet it is blocking the free flow of information. On the other hand, rejection of copyright would destroy the normal market within a year or two. Nobody would buy books and records, if they could download them from the internet for free. I know that the argument I am using is not entirely fair, but should we give access to the society, just because it demands it? We have some examples of rejecting the copyright law in history – such as the nationalisation of land – and the terrible after-effects.

J. Smiers: That’s not a good comparison.

R. Markiewicz: I know it’s not entirely fair but there is an analogy – we have a producer who makes something and we are saying that he has to give it to society because it needs it.

J. Smiers: You are not an economist. And that’s the problem. Everything is in the hands of lawyers and entrepreneurs – you are not thinking about new economic models.

R. Maes: The composer has admitted that he wants some protection. It’s not in the hands of lawyers or economists.

J. Smiers: Protection can come from the groups playing his music and paying him for it.

photo: Miłosz Poloch

New business models

R. Falkvinge: There was a question: if I was an author how would I publish my works. I am an author, I write articles and books. All of them are entirely devoid of any copyright.

R. Maes: Is somebody paying you for the articles?

R. Falkvinge: I don’t receive any money for them. I treat them as a form of advertising of my way of thinking, and I make money on public speeches. You have to separate the use case – why someone needs your product, from the business case – how to make money off somebody wanting your product. These are separate issues and they are both required for successful entrepreneurship. I would like to point your attention towards something. We’re here because something has changed. Fifteen years ago we were doomed to being passive receivers – we were told what to think, what to know, what to talk about, what to listen to. Now we can also express our opinions – what the world should know, what to listen to. The elite that used to hold this privilege is in panic. It hasn’t realised just yet that they had lost control over our minds and culture. For the first time in history we are equal. Nobody conducts an authoritative selection of what will be included into the knowledge of humanity. In the global collective mind, a nine year old girl from Venezuela, who’s just got her first laptop under the “One Laptop Per Child” programme is worth as much as a white, middle-aged European male. It’s absolutely fantastic.

R. Xalabarder: I think that we are confusing two issues here. Nobody questions the fundamental right to the freedom of expression. But it has nothing to do with using somebody else’s property without any license or authorisation. It’s a dogmatic attitude that distorts the debate. Internet is a wonderful platform for creators who previously didn’t have the opportunity to reach the customers with their work, but downloading music from a peer-to-peer network is not a realisation of the freedom of speech. It has nothing to do with the free flow of information.

R. Falkvinge: It is a freedom of speech.

R. Maes: So, we have two fronts here. Let’s think about the future solutions to these issues. Oliver, are you planning to change your business models? Or maybe you’ve already changed them?

O. Herrgessel: So far, I don’t think that digitisation, the internet or social networks have changed the rules of the operation of the free market. These phenomena exist, whether we like it or not, and we have to deal with them. Before I started working in television I had met Shawn Fanning, the creator of Napster. I saw how a large part of the music industry had been ignoring him at the start, but once it realised what is going on, it tried to take control over him and the battle began. In turn, Apple is dictating business conditions. Publishers were the next to face the internet. Of course, everyone was saying “Give us your content for free”. And despite the fact that newspapers and magazines were funded by selling paper copies on newsstands, on the internet they were for free. Is it a good thing? I don’t think so, considering how they are now struggling for survival.

Television industry has experienced all of this as well. Traditional television format based on hourly schedule still dominates, but we can also observe migration to the internet. All big channels have platforms on the net, where you can download data with accordance to the current business model – of course – for free. But there are also new players with big popularity. Google makes approx. 50 billion dollars on advertising and it wants to make more, so it launched a Google TV platform and said to people: “We will reorganise your television.” But Google doesn’t make television, just as Apple doesn’t produce music. They are platform owners. In the broadcasting industry the situation is clear – we have rules regulating how we share our content. One of them is that our actions are big. If we are to be present at a platform, we want to sell our advertising, against the popular tendency to give content away for a fraction of its value. Content has its value that must be reinvested, and you need revenue in order to do it. This business model hasn’t basically changed since 1924 when RTL started broadcasting. Despite several revolutions and evolutions that it has experienced. This applies to the internet as well.

R. Maes: But this will only work as long as the law protects you. In the beginning of operation of YouTube, 80 percent of most-watched content was illegal. How do you make sure that there won’t be another Napster in the future?

O. Herrgessel: Most broadcasters don’t care about YouTube as long as nobody makes money on the content. If we start loosing money and our broadcaster rights are violated, we inform our lawyers, they call YouTube, and it takes down the content.  

R. Maes: And do you monitor everything in order to find a teenager in Russia who adds videos on YouTube using Google Ads and makes money on it? 

O. Herrgessel: Allowed use – yes, a free ride – no. If you are sharing content with, broadly speaking, friends, than most likely it will be considered private use and won’t be prosecuted. But if you have a list of 1,000 so-called friends on some social network, and you market some content there and violate copyrights, that’s a substitute for commercial use, and you’ll be in trouble.

Joint liability

R. Xalabarder: This model is sustainable as long as the internet service providers are willing to cooperate. The current safe harbour provision allows them to provide services and look the other way when something is going on (regulations that eliminate liability of the ISPs for the actions of the users – ed.). When it gets hot we have notice and takedown procedures (notification of illegal content on the internet – ed.). But it’s not enough. I don’t think that the ISPs should control or enforce the copyright law, but they have more responsibility than they currently accept. We are complaining here about copyright, intermediaries, producers and publishers, but the ISPs are the key players. Google, T-Mobile and whoever is providing internet access has a very significant role to play on the copyright market.

R. Maes: At the moment they can offer loads of free content.

R. Xalabarder: The money should go to licensing deals. The market participants should get together at one table, acknowledge the fact that they are operating within the same market – some of them produce content, others ensure a highway for distribution, and think what they expect of each other. So far, the ISPs haven’t been forced to act rationally and pay. And at the same time, they explicitly emphasise that by selling their services they allow downloading the content for free. That’s an evident violation of copyright. They should become responsible for their business models. If a website resembles a peer-to-peer activity than it’s owner is infringing the copyright law, as a paid client. Therefore, the ISPs should actively show respect and become involved in enforcement of copyright.

Member of the audience: The majority of sharing doesn’t happen on websites, but between single computers. The only way to track it is to control the activity of individual people in the net. I’m totally against it.

R. Maes: Another solution would be not controlling it at all.

Member of the audience: Yes.

Another member of the audience: What do you think about donations? E.g. I come across something nice online and have a possibility, in an easy way – without the necessity to log in – to donate a voluntary contribution.

O. Herrgessel: We’ve already had such experiences in Germany. There was a film financed with crowdsourcing. As far as I remember, there was 300 thousand Euros collected within two months.

Member of the audience: I represent the Modern Poland Foundation. It’s a small non-profit organisation creating an internet library. I am a little disappointed with this discussion because anything can be ridiculed with extreme arguments. The problem isn’t whether we want the copyright protection or not, but its scope and limitations. According to the current regulations, the rights owner receives the copyright laws for 70 years after the death of the author, so I have to wait another 20 years in order to publish the works of Thomas Mann in our library. It’s ridiculous. In reality, the current exceptions connected with educational purposes don’t work on the internet, and the a little broader fair use allows for much more than we can do right now, but just in theory. This is the problem we need to face. How do we create a reasonable copyright that covers the problem of copying on the internet? I was hoping that during this discussion we would think about what we want to pursue. Beyond a shadow of a doubt, we have passed the critical point, and we cannot rely on more enforcement and more restrictions anymore. We have to take a step back and find the sweet spot. My question is: where is it?

R. Maes: What is your suggestion?

Member of the audience: Let’s go back to the solutions of the Berne Convention – to 50 years of protection. Afterwards we should think about broadening the exceptions and allowing commercial re-use. We live in the era of remix culture. Non-commercial re-use should be legal.

Another member of the audience: I believe that we should grant libraries, museums and archives with more rights. I would like to encourage everyone to look at the just-signed Washington Declaration. It appoints an interesting direction in which the copyright reform should go. We can now observe a trend to limit fair use, especially on the online market. The example could be e-books, which have a limitation on the number of times they can be borrowed. That was never the case of print – you could borrow a book endlessly.

R. Maes: I would like to devote the last 10 minutes of our discussion to the presentation of suggestions of our panelists. If we had this discussion in 5 years, how would it look like, what would change?

J. Smiers: We should be aware that many fields of knowledge and creativity were largely privatised, the pharmaceutical industries, for instance. All the knowledge that we have on new drugs is in the private hands. I am trying to convince the economy, law, or sociology departments to analyse the catastrophic consequences of the privatisation of knowledge. We can’t use it, or communicate it, because we would have to deal with lawyers. We could come up with completely new business models. Let’s research these issues.

O. Herrgessel: A couple of years ago we were conducing research on audiovisual content and the ways of using it online. The outcome was that if people can get something for free, they will always choose a free option. This is the business model for television. The copyright law is crucial for investing, and thus for creation and innovation.

R. Falkvinge: In the short term, it seems that we agree on the fact that extending the copyright wouldn’t bring any results. However, next Monday the Council of Ministers of the European Union is going to vote on extending the copyright for performers from 50 to 70 years in EU. Most probably, this solution will be accepted with a very small number of votes. Poland is planning to vote in favour of it. If somebody here can convince Poland to vote against it, the extension will not be passed. [The Council of Ministers voted through the extension of the copyright for performers to 70 years – ed.]

R. Xalabarder: We need a balanced system and I agree that the current copyright system isn’t balanced. But let’s not throw the baby out with the bathwater – we need copyright, but a better copyright.

R. Markiewicz: In the long term, I am dreaming about a European copyright code, not a directive, but a code based on regulations.

R. Maes: Our discussion is almost finished. (moderator approaches the person from the audience) Don’t you feel a bit guilty after listening to this debate? At the beginning you claimed that this is not piracy but sharing information.

Member of the audience: I feel guilty towards the artists who are not rewarded for their work, but at the same time I don’t feel guilty because of the prices enforced by the record companies stealing from artists. Artists should produce their own works.

Wrocław, 10 September 2011

This article has been originally published on the European Culture Congress website.

transcription: Michał Banasiak
abridgment and editing: Agnieszka Berlińska
English editing: Klara Naszkowska