The goal is an ambitious one and it is essential to achieve it quickly: to create an attractive and legal European market for online audiovisual content to counter illegal downloading that penalises artists, the cinema and music industry, but above all to move the European Union forward on the ‘digital economy’ path by benefiting from all the advantages that the new tools can offer the public.EU officials are aware that the Union is somewhat behind compared to the US and that there are plenty of stumbling blocks on the road to achieving this ambition. However, most of them, officially at least, want to believe that the Digital Agenda, adopted in May by the European Commission on the initiative of Commissioner Neelie Kroes, has been given a boost and that the main problems identified could be solved soon given that the latest deadline for the measures to be in place is 2012.

TOUGH TASK

It is a tough task, which will determine who wins the ideological battle between those internet users used to having free access to all content and exclusive rights holders who complain about economic losses, whose size continues to be very difficult to calculate and verify. This is especially true for the music sector and less so perhaps for cinema. As for the press, the Commission has chosen, for the moment, to allow disputes to be settled nationally.To try to find a fair balance between the industry and the public, the first thing that needs to be done is to narrow the gap between the systems that govern authors’ rights in the EU. These vary a great deal and were not designed with the internet in mind. That would appear to be an essential requirement to give a framework to a sector such as music, which has moved in leaps and bounds thanks to the internet due to a fall in broadcasting and reproduction costs and by allowing lots of young artists to make their names, thanks to a more direct relationship with the public. This legal framework will need to make it possible to avoid extreme situations from occurring.The EU’s Internal Market and Services Commissioner, Michel Barnier, has already looked into this problem. He sees “encouraging creation by ensuring remuneration” as a priority while recognising that it would be very difficult to impose a solution on authors’ rights that is valid for all the interested parties and to reach an agreement in the Council within a reasonable time frame. But it is just as difficult to imagine a compromise that would de facto maintain a heterogeneous legal environment, allowing, for example, songs to be downloaded free of charge in one country and not in another given that, to obtain licences, distributors are forced to manage different rights and to negotiate with collective groups of authors, composers and music publishers. The solution advocated would also go via a “simplification of authors’ rights, with a framework directive on the collective management of rights by 2010”. In other words, a European digital rights management system through simpler solutions for granting transnational and pan-European licences, but without necessarily relying on a European licence, an ambition that could overly delay putting in place an efficient system.

LEGAL DOWNLOADING CULTURE

An evaluation of this approach is underway and Barnier is due to present a proposal by the end of the year. But once the issue of authors’ rights is resolved, the other objective and main issue will be to promote a legal music and audiovisual product downloading culture. To get there, the offer will need to become attractive, with easier access and a wider choice of content. The Digital Agenda’s proposals include the publication of a green paper on the possibilities offered by the online distribution of audiovisual works and creative content and review by 2012 of the directive on respecting intellectual property rights.Although industry is afraid of any increase in piracy, its detractors believe that it has maintained a very conservative position towards its old commercial model over the years and has not made enough effort to propose an offer to meet the interest that downloading music from the internet has generated.

MINDSETS AND HABITS

Today, it is more and more difficult to change users’ mindsets and habits, especially those of younger people. To persuade them to switch to a legal state of play, there needs to be big push for simplification especially as online operations are too often complicated and users give up. Then there is the most controversial issue relating to the system of sanctions to be envisaged in cases where the rules are broken. The French Hadopi law has shown several weaknesses even before being applied. It is criticised for “criminalising all consumers,” in other words its starting point is an assumption that all users are inclined to violate creators’ rights. Many people have seen this approach as not being very realistic. The Commission is thinking about strengthening the directive on respecting intellectual property rights by increasing the weapons that judges have at their disposal to deal with violations. But the legal authority would always be involved, based on the principle, recognised by the French Constitutional Council in June 2009, that free access to the internet is an essential component of freedom of expression and communication.

The systems that govern authors’ rights in the EU vary a great deal and were not designed with the internet in mind