For too many years, the copyright industries fought hard against the changes being wrought by the rise of the Internet and the epochal shift from analog to digital. Somewhat belatedly, most of those working in these sectors have finally accepted that this is not a passing phase, but a new world that requires new thinking in their businesses, as in many other spheres. A recent attempt to codify that thinking can be found in a publication from the European Publishers Council (EPC). "Copyright Enabled on the Network
" (pdf) -- subtitled "From vision to reality: Copyright, technology and practical solutions enabling the media & publishing ecosystem" -- that is refreshingly honest about the group's aims:
Since 1991, Members [of the EPC] have worked to review the impact of proposed European legislation on the press, and then express an opinion to legislators, politicians and opinion-formers with a view to influencing the content of final regulations. The objective has always been to encourage good law-making for the media industry.
The new report is part of that, and is equally frank about what lies at the heart of the EPC's vision -- licensing:
A thread which runs through this paper is the proliferation of 'direct to user’ licensing by publishers and other rights owners. Powered by ubiquitous data standards, to identify works and those who have rights in those works, licensing will continue to innovate exponentially so that eventually the cost of serving a licence is close to zero. The role of technology is to make this process seamless and effective from the user's perspective, whether that user is the
end consumer or another party in the digital content supply chain.
Seamless licensing will be made possible through the roll-out of ubiquitous Digital Rights Statements (DRS) containing information about identity, rights and -- you guessed it -- licenses:
The key point about a DRS is that once it exists, it can be searched, read and actioned by any other machine connected to the Internet. And once the DRS is indexed by a search engine, through the machine readable IDs contained in the DRS it will always be possible to find the person or entity who owns or administers the rights and the rights associated with it. From there, it will be possible to link to the service from which the rights can be obtained and the content accessed and, if applicable, paid for.
Furthermore, this infrastructure is well suited to a world of 'mash-ups' where one work will incorporate parts or elements of other works, because the relevant IDs can identify the whole of a work or granular elements of it.
As that makes clear, the EPS vision includes being able to pin down every single "granular" part of a mash-up, so that the rights can be checked and -- of course -- licensed. Call it the NSA approach to copyright: total control through total surveillance. The paper helpfully explores how that would work out in various specific situations encountered today. For example, the European publishers want to be able to use licensing to restrict access even to material on the open Internet:
Legal clarification is needed about the relationship between hyperlinks and licence terms on the websites (or other platforms) to which they link.
It must be clear that rights owners may by their licence terms to "restrict" access to content on an "open website" to a specific category of "the public" (e.g. users who visit the site directly), whether or not accompanied by technical protection measures.
So licenses would be able to forbid the use of hyperlinks to jump directly to pages, even though the latter were not locked down by DRM. The EPC is also worried about an "overbroad" interpretation of a general right to browse copyright material without needing an explicit license:
Whilst the general proposition that Internet browsing does not require a licence is reasonable, there remains a risk that an overbroad interpretation could mean that activities which ought properly to be licensable (e.g. the consumption of press cuttings) might cease to be so.
To tackle that, the EPC wants
(pdf) "a new limited neighbouring right to stop unlicensed use of snippets," and also, for good measure, "[h]yperlinking to illegal copies to be treated as an infringement." Given this relentless focus on creating a permission-based Internet, it will come as no surprise that the EPC hates the idea of introducing fair use in Europe:
this is an issue which would require considerable evidence-based research in order to make a reasoned evaluation of the benefits of introducing a fair dealing exception compared with the uncertainty and other risks which would be caused by its introduction.
That call for "considerable evidence-based research" is rather rich, given the complete absence of it for all the recent changes to European copyright law in favor
of publishers. Indeed, as Techdirt has frequently discussed, there is plenty of research to support reducing
copyright's term and reach, but when this is brought up, publishers are strangely uninterested in evidence-based policy making, preferring to stick with the dogma-based kind. Naturally, the EPC thinks that instead of fair use, what people really need is more licensing:
Europe would be better positioned to reach a dynamic flexibility for increased uses by providing incentives to small scale licensing, both B2B and B2C, and automated licensing solutions.
Part IV of the report is entitled "Meeting users' needs in the new media & publishing ecosystem." That's a welcome emphasis, since it finally recognizes that the users are not just some passive recipient of what the publishers decide to throw at them. However, the section's focus is still resolutely on seeking permission for every possible use of copyright material.
For example, one of the areas where publishers are fighting fiercely against granting new copyright exceptions is for text and data mining. The refusal to contemplate anything but licensing as an option led to a group of researchers, SMEs, civil society organizations and open access publishers pulling out
of the European Commission's "Licensing for Europe" fiasco. Here's what EPC has to say on the matter:
A new exception for text and data mining at EU level carries a huge risk from 'the law of unintended consequences'. A key theme running through our paper is the enabling role of technology in managing copyright. Given the increasing automation of rights management, the full potential of which we have yet to realise, including in the area of specific permissions, access to and use of content, we urge the European Commission to look at practical solutions first for serving the genuine needs of the research community before legislation.
Scare-mongering about an exception for text and data mining is bad enough, but it gets worse. In this same section, we read the following concerning the copyright needs of users with a disability:
There are undoubted challenges faced by this user group in being able to access digital content although publishers have been investing in voluntary solutions, including via ePub3 and voice-enabled services online.
The report then goes on immediately to mention:
The Marrakech Treaty is a recent exemplar. It provides a legal framework to facilitate access to published works for persons who are blind, visually impaired or otherwise print disabled.
That gives the impression that the Marrakech Treaty
was something that publishers backed strongly as a fair way of helping those with disabilities. In fact, quite the reverse is true
. To have that hard-won treaty for the visually impaired presented here as an example of how publishers can be relied on to do the right thing by the public is not just misleading but morally repugnant. It shows that despite some fair words in the rest of the "vision" document, in important ways European publishers are just as selfish and cynical as ever.
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