Culture is future » Financing and economic models

09.25.2011

DEBATES 2011 - Intellectual property - How is it possible to enforce copyright in the digital environment? by Bernard Miyet

Mr. Bernard Miyet is the Chairman of the Board of the SACEM. He has been interviewed by members of the Forum d’Avignon about his analysis on challenges arising from the digital economy and the recent technical revolutions for the protection of creative works.

 

Legal and political considerations

In Mr. Miyet’s opinion, it has been and remains very difficult to find a satisfactory solution to the issue of the enforcement of copyrights in the digital environment.

To explain this point, Mr. Miyet pointed out that, for the first time in history, users such as telcos and internet services providers (ISP) benefit from intellectual property creations because of the indirect economic effects deriving from the exploitation of the creations without being compelled to remunerate their rightholders in return. He also disagrees with the former CEO of France Telecom Didier Lombard statement that the telecom companies should be considered as the heirs of the postal services which don’t have access to the content they deliver (a postman does not open the envelop).

For Mr. Miyet, this cannot be a valid argument as long as telcos and ISP are able to determine which content (music or videofiles) they offer access to and take profit from. The solution would be to reexamine the issue of the financial and legal responsibility of such providers.

Mr. Miyet also points out that the purpose followed by the SACEM is not to prevent the dissemination of creative works but, on the contrary, to promote it effectively, in the best interest of the authors and consequently of creation in general. That is the reason why according to Mr. Miyet, it is necessary to find a way to make the telecom companies and ISP aware of their responsibilities in a context where the sale of hard copy media such as CD and DVD lost 50% in four years. 

Mr. Miyet stresses that no collective management agency in the world has found a satisfactory solution yet and recognizes that it may be difficult for two reasons: telcos have major economic and potential influence all over the world and politicians do not want to hurt consumers and citizens’ aspiration to free or cheap access to contents.

Actually, Mr. Miyet underlines that it is necessary to make users aware of their responsibility in the cultural economy because piracy is less the fact of professionals or commercial companies than a matter of individuals who have lost the conscience of the value of music and massively use peer-to-peer or other way to access content freely at the expense of authors.

Technical solutions

For the record, in the late nineties before the creation and implementation of the Digital Rights Management, the SACEM tried to find an alternative way to control the dissemination of music on the internet and experienced a technical solution allowing monitoring the exchange of protected music titles based on the IP addresses of the users.

For Mr. Miyet this was an efficient way to help the author to monitor the access to their work or ensure continued revenue streams. However, the increasing importance of data privacy laws has prevented the use of these technologies based on IP addresses which are considered as personal data.

Today, the DRM technologies can be seen as another attempt to control the use of digital media by preventing access, copying or conversion to other formats by the end users. But DRM are also a way to manage digital rights, instead of preventing access.

In parallel, Mr. Miyet thinks that HADOPI (French law on copyright’s infringement) initiative is an interesting step to improve the awareness of users. However, given the limited sanctions and the proliferation of alternative methods of hacking that are not monitored by this agency, it cannot remain as it is.

Contractual solutions

There is an unclear responsibility of ISP, especially the video-sharing websites, which cannot control the contents directly but allow the right owners to control the kind of content they want to allow on these services. A legal security for telecom, ISP and right owners has to be found, with at least a financial responsibility to guarantee revenues for the right owners.

The SACEM and YouTube entered into a license covering the broadcasting of the SACEM’s musical repertoire in music videos and audiovisual content viewed in France on the website.

Mr. Miyet stresses that this agreement demonstrates the willingness of the SACEM to promote the legal use of creative works online, especially on video-sharing platforms. Indeed, it is important and symbolic that YouTube, the largest video-sharing site, pay French creators when their content is discovered and viewed on the site while gaining itself a legal security for the distribution of such works. For Mr. Miyet it is a huge step forward: a balance could have been reached, allowing surmounting difficulties inherent to the negotiation of an agreement concerning an innovative but complex model, and it brings a win-win model.

International cooperation

The development of digital environment and dissemination of protected creative contents online are challenging the functioning of collective management agencies. This new paradigm requires an effort of cooperation at an international scale to ensure a coherent cross-border licensing framework.

Collective management agencies have always tried to adapt their functioning to technological changes.

In 1980, the conclusion of the agreements of Sydney between author’s societies, established a one-stop-shop system for transnational satellite broadcasters. Little more than a decade later, authors' societies have developed a similar solution for the exploitation of music in the digital environment with the so called Santiago and Barcelona agreements. According to these agreements, each of the participating societies may issue multi-territorial licenses for the on-line use of copyrighted works of the repertoires of these societies. Users wishing to obtain a license for a pan-European or transnational exploitation of a repertoire only had to contact a one-stop-shop: the agency of the country of its main economic residence.

This system allowed at once to avoid "forum shopping" leading to a devaluation of the rights and facilitate cross-border licensing.

However, the agreements of Santiago and Barcelona have been considered by the Directorate General for Competition, incompatible with competition law.

Due to this decision as well as the EU Commission Recommendation of October 2005, the management of copyrights is now fragmented. Consequently, it is not possible anymore to obtain the rights for a transnational exploitation from one agency which is a supplementary obstacle to an efficient enforcement of the legal solution to disseminate creative work online.

Propositions

At an international level, Mr. Miyet keeps on militating for a system restoring as far as feasible both one-stop-shop and blanket license principles in order to respond to the practical requests of users and to provide them with easy and safe access to a wide variety of works while offering a solution respecting the legitimate interests of the rights owners. To this end, he reminded that he had proposal the establishment of a paneuropean platform in order to reaggregate all non anglo-american repertoires.

For Mr. Miyet, a paneuropean platform would allow offering a diversity of repertoires and creators, avoiding the disappearing of many independent publishers who may face difficulties to negotiate the licenses whit a myriad of users, or be subject to piracy.

Such a system would allow preserving an equal treatment of the rights’ owners and would promote a secure legal framework for users who may sometimes get confused about whether an offer is legal or not.

To illustrate his proposition Mr. Miyet takes the example of the United States:

In the United States, the collective management of rights is less developed than in European countries. There is no obligation of collective management as it is usually understood, in other words by an organization representing the rights holders.

The collection of rights for downloading musical works online is based on a statutory license which is an exception to exclusive copyright that permits anyone, subject to certain conditions and the payment of statutory license fees, to make certain uses of a copyrighted musical work without the copyright owner’s prior permission. 

The rates of the license fees are set by the Copyright Royalty Board, which is composed of 3 full-time judges appointed by the Librarian of Congress. 

Concerning musical work the Harry Fox Agency is the largest agency collecting and distributing license fees on behalf of music publishers in the United States.

However, without any obligation of collective management, it is necessary for this association to enter into individual negotiation with each rights holder. In this context, it has been proven impossible to constitute a global catalog to locate and effectively manage the interests of the rights holders.  

This is the reason why, the most efficient system should rely on, as far as possible, the three following principles which have been the basis of the management of rights in Europe for decades:

-          One-stop-shop;

-          Blanket license;

-          Collective management of rights

At a national level, Mr. Miyet thinks that the enforcement of author’s rights must be improved based on the responsibility of providers. He considers that to enhance the protection of creation, it is necessary to make telcos and ISP aware of the unlawful system they are fostering and to make them more vigilant about the contents they provide access to. According to Mr. Miyet, enacting a new frame of liability on providers should create an environment more favorable to a collective change of mindset as regards piracy.

To the same extent, Mr. Miyet suggests the creation of a compensatory allowance for the fight against infringement. This contribution which could be borne by ISP would be calculated regarding the volume of unlawful practices. The purpose of this measure would be to create a virtuous circle because the more infringement there would be, the more the financial contribution to be paid would be high.