Getting it Right on Copyright in Europe

The European Union is commissioning some seriously serious research these days. Yesterday I wrote about the impressively named and indeed impressive "Study on the Economic impact of open source software on innovation and the competitiveness of the Information and Communication Technologies (ICT) sector in the EU"; and now here we have one entitled "The Recasting of Copyright & Related Rights for the Knowledge Economy".

I can't pretend to have read all 305 pages of it, but I did spot a couple of sections in the Executive Summary that suggests it has its heart (and head) in the right place:

Holders of neighbouring rights in performances and phonograms have expressed concern that the existing term of protection of 50 years puts them and the European creative industries, in particular the music industry, at a disadvantage, as compared to the longer protection provided for in the United States. Chapter 3 examines these concerns, first by describing and comparing the terms in the EU in the light of the existing international framework and existing terms in countries outside the EU, secondly by examining the rationales underlying related (neighbouring) rights protection and finally by applying economic analysis.

The authors of this study are not convinced by the arguments made in favour of a term extension. The term of protection currently laid down in the Term Directive (50 years from fixation or other triggering event) is already well above the minimum standard of the Rome Convention (20 years), and substantially longer than the terms that previously existed in many Member States. Stakeholders have based their claim mainly on a comparison with the law of the United States, where sound recordings are protected under copyright law for exceptionally long terms (life plus 70 years or, in case of works for hire, 95 years from publication or 120 years from creation). Perceived from an international perspective the American terms are anomalous and cannot serve as a legal justification for extending the terms of related rights in the EU.

This too was perceptive:

An assessment of the acceptance of copyright by the general public is more difficult to make. For this purpose empirical data on p2p file sharing and software sharing were analysed as ‘indicators by proxy’. These surveys make clear that unauthorised use and distribution is the norm for approximately 50 per cent of the populations concerned. However, a much larger share of the European public does recognise the equitability of and the need for copyright protection.

However, in such circles as student communities as well as the ‘virtual communities’ that are p2p networks, the prevailing ethical norm is not so much one of complying with copyright, but rather one of sharing. It was furthermore found that consumer behaviour is also informed by a weighing of the advantages and disadvantages of file sharing versus legally purchasing copies. If a commercial content provider offers the consumer a ‘bad bargain’ in terms of limited availability, high prices or restrictive use conditions (e.g. portability), then the consumer is not likely to find it unethical to opt for p2p file sharing instead.