Newsletter
September 2011
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Debates 2011: four debates, four studies. This month "Intellectual Property, a universal value". Prepare the debates and discover exclusive interviews.
With in exclusivity for the fourth edition of the Forum:
- Study 2011: Intellectual Property, a universal value
- Interviews : Françoise Benhamou, economist, Lorena Boix Alonso, Deputy Head of Cabinet of Neelie Kroes,Olivier Bomsel, economist, Nicolas Dussart, Deputy Director General, Théâtre Marigny, Laurence Franceschini, Managing director of the Media and the cultural industries, Minister of Culture and Communication of France, Pierre-Yves Gautier, law professor, Bernard Miyet, Chairman of the Board, SACEM and Thaima Samman, lawyer.
Presentation of the 2011 study:Intellectual Property, a universal value
 Why is intellectual property a universal value? How
is it possible to promote intellectual property in the following
decade, beyond the agreements of principle, and to reach which goals?
Who will artists and creators entrust with the management of their
rights in the following years? Can the different players agree on a new
distribution of the value? Under which conditions does intellectual
property’s protection encourage innovation?
The Ersnt & Young study realized in exclusivity for the Forum
d'Avignon 2011 not only has a pedagogic purpose but also tries to
highlight some answers to these questions.
Aims of the study
1. Presenting an
international benchmark on the stakes of intellectual property based on the G20
countries, and especially regarding literary and artistic property. The
study lists laws and regulations in terms of copyrights and presents
convergences or divergences between the different countries. It is
clear that the legal framework is widely accepted, due to the impulse
of the WTO and of the WIPO. The difference rather is in the way of
implementing the laws, depending on the choices made by the countries
and on the level of economic and technological development.
Nota Bene: This benchmark will be completed, with country sheets set up
by Ernst & Young offices of all around the world: Germany, Saudi
Arabia, Australia, Brazil, Canada, China, South Korea, the United
States of America, France, India, Italy, Japan, Mexico, the United
Kingdom, Russia, and Turkey.
2. Supporting authors, protecting the investors, promoting innovation.
Intellectual property covers many rights, including copyrights,
neighboring rights, moral rights, patents, and the brands’ right. It
has many objectives depending on the different rights: protecting and
encouraging investment, promoting implementation of technologies,
warranting the integrity of an artwork, allowing the creators to live
thanks to their work, allowing an always greater number of individuals
to have access to a real diversity of creation, stimulating R&D and
innovation. Crossing one another, these different objectives raise
questions, more and more numerous with the digital development: should
the protection of an artwork’s integrity be adjusted to make fragments
of a work available and useful? Does the effectiveness of the
intellectual property rights’ protection support innovation? Will
brands and copyright come closer?
3. Comprehending contractual and technical stakes, the role of the different players.
To the questions raised by the rapprochement of intellectual property’s
different rights, such as literary and artistic property with patent
rights, are overlaid those related to the techniques’ evolution and
players’ behavior. Can the latter imagine new collaboration forms to
guarantee at the same time the respect of the intellectual property,
and the creativity which is inherent with sharing and accessing to
contents? To what extend will the increase of cloud computing offers
redefine intellectual property rights’ management? What kind of
security issues will they raise? Are contractual solutions like the
Creative Commons - authorizing sharing and offering protection tracks
among which some are compatible with the moral right, without entering
in heavy industrial processes -, be a realistic improver to the laws on
copyright? How is it possible to handle the increasing flows, the
audience’s growing expectations regarding a global access without
rethinking the offers?
Methodology/Scoping:
The study will be directed by the International Media &
Entertainment Network, with the help of the Ernst & Young
Continental Europe Law network and the Ernst & Young Knowledge
Center. The research work will be completed by interviews of artists,
academic lawyers and economists, politicians, and business
representatives.
The E&Y Global Technology Technology and Telecom Centers will also
participate in giving their view on the impact of new forms of hosting,
storing and sharing content.
Learning more about the 2011 studies of the Forum d'Avignon
Learning more about the 2011 edition of the Forum d'Avignon
Interviews
The
Forum d’Avignon, in partnership with Ernst & Young leads
interviews to enhance the study "Intellectual Property: a universal value" that will be
published in November 2011.
Copyright from an economic point of view by Françoise Benhamou
 Françoise
BENHAMOU is an economist and professor at University Paris 13. She is
also teaching in many foreign universities and at SciencesPo. She
published notably Droit d’auteur et copyright (Author’s right and
Copyright) with Joëlle Farchy.
Economists see copyright as the introduction of a monopoly in
the marketing of a work, in favor of the author or the financier. It
restricts the circulation of the work but also encourages creation
thanks to the possibility of paying the author and his financier. Thus,
copyright creates a tension between this monopoly, meant to ensure a
return on investment (ROI), and the possibility of distributing the
work. The duration of copyright is limited in order to promote the
diffusion of works, after an eventual redemption.
In this respect, at the time of Internet, the present duration of
protection (author’s life plus 70 years after his death) seems an
eternity.
The copyright’s history shows that this period keeps being extended.
Then, the central question is what the optimal duration of copyright
is. From an economic point of view, there is no strong argument in
favor of extending it. On the occasion of the Sonny Bono Act, in the
United States of America, which extended the duration of protection, a
memoir written by a panel of economists - including several Nobel Prize
winners - refuted the need for an extension of this period, showing
that it would have no additional incentive effect. In 1998, the US
Congress passed under that name the law on the extension of the
copyright duration, which enables works to be protected up to 70 years
after the death of the author and up to 95 years after the first
publication, if the copyright owner is a moral person.
Tendencies and stakes of Intellectual Property by Lorena Boix Alonso
 Lorena Boix Alonso is Deputy Head of Cabinet of Neelie Kroes.
Is there a parallel between the development of internet services in a country and the regulation on IP protection?
Real-time
entertainment traffic continues to grow steadily and today is, both in
North America and Europe, the largest percentage of internet traffic in
fixed networks. Immediately after comes P2P. In we talk about
trends, studies say that by 2012 Internet video will account for
over 50 percent of consumer Internet traffic In 2015, 1 million minutes
of video content will cross the network every second.
These services require for their provision content which is often
protected by copyright. It is therefore evident that the way copyright
is regulated, in terms of both licensing and enforcement has an
influence in the availability of internet services. A copyright system
which makes the acquisition of licenses burdensome, will increase the
cost for providing a service and diminish the incentives of providers
to offer legal content. On the other hand, a copyright system which is
not sufficiently protective will diminish the trust of content right
holders in the internet and deter them from providing licenses. This is
why, in order to foster legal content services, it is necessary to act
on both fronts. On the one hand, it is necessary to ensure that the
legal framework enables content providers to obtain licenses as easily
as possible. On the other hand, copyright law has to be seriously
enforced to give confidence to right holders.
This is why the two angles need to be tackled together. Let's indeed
not forget that the objective of any enforcement measure is to protect
what is legal.
Other questions asked to Lorena Boix Alonso:
Is enforcement of IPRs less efficient on the internet than enforcement
of criminal offecences (racism, antSeitism, etc.)? Is there a lack of
political awareness or willingness?Do you think that new rules are
needed to organize the links between IT providers and right owners in
order to improve the protection of IPRs?How can public policy reinforce
IP protection by creating a strong desire for action on the part of
governments and the courts?What changes in copyright law in Europe do
you suggest, especially regarding the matter of the private copy which
is an outdated notion in the digital era? Do you have insights on
regulatory trends in this area?
How could regulation or other elements contribute to meeting both
citizens/users’ expectations of free or cheap Access to contents and
IPR’s holders’ expectations to a fair remuneration?What are the next
steps to improve cultural preservation in the digital and physical
fields?
© European Union, 2011
The content of this written interview does not reflect the official
opinion of the European Union. Responsibility for the information and
views expressed therein lies entirely with the author.
Reproduction is authorised provided the source is acknowledged.
Read the interview online
Intellectual property, a recent concept by Olivier Bomsel
 Olivier
BOMSEL is an economist, professor of industrial economy at MINES
ParisTech and director of the ParisTech chair « economy of the media
and brands».
It should be noted first that the economy often
comes after law. Law answers in a concrete and pragmatic way to
temporal and political imperatives. Eeconomy observes the functioning
of institutions, so it starts from positive law and tries to interpret
it and analyze what it allows in terms of organization of the society.
(Reading of legal and economic institutions of property.) The right of
property appears to be an institution that allows the coordination of
the society.
If property is an ancient concept, it began to be interpreted by
economists in the 1960s, as a structuring institution (Demsetz, Coase).
As for the category of intellectual property, it was unthinkable in the
early 20th century: for example Schumpeter never refers to the concept
of intellectual property even if he made innovation the motor of
capitalism. Intellectual property designates the exclusiveness of the
use of information and its commercial utilization. There are three
types of umbrella institutions which protects creation and innovation:
copyright, trademark and patent.
Read the article online
The MarignyTheatre by Nicolas Dussart
 Nicolas Dussart is Deputy Director General, Théâtre Marigny
Can you describe your profession and in what way questions concerning intellectual property influence your institution?
Backed
by its Director, Pierre Lescure, the Théâtre Marigny has been engaged
in an open and ambitious policy in the past few months. The
quality of the programme, the diversity of formats and genres, events,
circulation of the public, and modern installations have turned this
historical place into a platform for exchanges, creations and emotions
that are at the forefront of cultural innovation.
With the emergence of new practices and cultural expectations linked to
the development of technologies, the challenges of intellectual
property have become crucial. At first glance, one might believe
that the constraints imposed by a performance, with its “fleeting”
temporality and the necessarily “living” presence of actors, could
preserve the theatrical space of the contemporary debate on
copyright. But the opposite is true. More than ever, the
theatre must adapt itself to new modes of consumption. What is a
theatre in the age of the net? The Théâtre Marigny has
deliberately chosen the future: captation and retransmission,
publications and smartphone applications, digital “channel” for debates
with artists and the audience… These innovations obviously require an
effort to adapt and pay particular attention to the mechanisms of
intellectual property.
Other questions asked to Nicolas Dussart :
What in your opinion are the 2-3-4 current challenges of intellectual
property?What links together artists and labels, or institutions and
labels, or creators and labels?
Read the interview online
Intellectual Property on the international agenda by Laurence Franceschini
Laurence Franceschini is General Manager of the media and cultural
industries of the French Minister of Culture and Communication and
member of the Board of the Forum d'Avignon.
According to you, what are the major issues related to intellectual property? What are the undertaken actions?
Intellectual
property is one of the main themes of the cultural Summit that Frédéric
Mitterrand will chair the 17th and 18th of November in Avignon. The
summit was wanted by the French President of the Republic alongside of
the G8 summit, after which the Heads of State and Government of the
countries have unanimously stressed the importance and topicality of
the fundamental principles of author right in the digital era.
On the occasion of the Cultural Summit, the Ministry of Culture and
Communication will release a study about several major issues of
remuneration for the creation in the digital age - because digital is
not only changing the means of disseminating culture, it also changes
intellectual property, becoming a new lever for creating and by
offering new opportunities for rights management.
Other questions asked to Laurence Franceschini:
In which countries do you see changes (public or private initiatives,
legislation, regulations, case law, ...) that could inspire France?
Conversely, what are the French initiatives that arouse other
countries’ interest? And how are they taken into account by these
countries?
Read the interview online
Law enforcement stakes by Pierre-Yves Gautier, law professor
 Pierre-Yves
Gautier explains that the main problem for IP protection is not the
evolution of law. The copyright, which describes what an immaterial
property in the creative field is, exists since a long time. The
existing law has to be enforced, which is not well done in all the
countries.
Pierre-Yves Gautier considers that the development of Internet has for
consequence a limitation of the intellectual property: consumers behave
differently and they want to have creative works for free or as cheaper
as possible. Besides, technological innovations are promoting this
trend by facilitating free access. The revenues are consequently
redirected to the IP providers and not the authors, a situation that
cannot be a long term perspective.
The existing law on IP protection is therefore inefficient, because
there is no application of penalties. For example, the movie Joyeux
Noel has been made available on DailyMotion without authorization.
After a notification to DailyMotion, the film was still available. In
February 2011, the French Supreme Court decided that DailyMotion was
not guilty, by referring to the e-business law (LCEN) and not the IP
law. A law suit is in that case too expensive for the authors and their
producers because they don’t know if they will win. There is a paradox
between the IP law and others law, especially the e-business. This
paradox relies on the will of the governments to encourage e-business
development, the spread of culture, instead of guaranteeing the
efficiency of their right to the rights owners. Besides, it is very
difficult to get the efficiency of a decision in other countries.
If new rules have to be imagined, we will need a global framework for
agreement between IP providers and right owners in order to organize
the revenue sharing and the protection of IP. The technological answer,
with DRM, will also be inefficient, even if DRM are useful to manage
the rights.
Another option is to develop the education on IP and the need of its
protection in order to maintain the creation. But education has limits
and the possibility of a free access will continue to satisfy the
Internet users, even if it penalizes the right owners. The “clic” can
be a proof of content consumption in order to manage the payment and
give back to the authors a decent revenue.
Read the article online
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.
Read the article online
Author's rights X.0 by Thaima Samman, lawyer
 What is - really - new about author's right?
Without
making the exegesis of intimate relationships between technology and
copyright since the spread of printing in the XVth century, marking the
beginning of mass publication and the need to protect authors’ rights,
questions are More and more raised as cultural works are spread over
the Internet. Technology forces copyright to adapt itself because of
the challenges it creates. The issue is not new: the young Mozart, then
aged 14, during an audition of the Allegri’s Miserere, which was
jealously guarded by the Church, only to be played within the Sistine
Chapel on special occasions, managed to reproduce from memory the
Miserere’s nine-voice score, thus allowing its circulation and
resulting in the ultimate lifting of the papal prohibition a few years
later. Sometimes considered a pirate before his time, Mozart managed to
lift the exclusivity the Church claimed for this work. This type
of geniuses thinly spread, the greatest challenges faced by copyright
today come from technology.
Read the article online
CULTURE IS FUTURE !
DEBATES 2011 – Intellectual property - Apple, a patent to prevent from filming concerts
 Apple
filed a patent in June regarding a new generation camera for mobile
devices, a technology that would prevent users from recording
concerts illegally. The system could be used by music and film
industries to enforce the protection during shows and in movie theaters.
 The
Society of Audiovisual Authors represents 25 European
collective management societies of audiovisual authors, that is to say
more than 118,000 authors and filmmakers in 17 countries. A White
Paper has been published in February on audiovisual copyright and
remuneration in Europe, quoted by the European Commission, the
World Intellectual Property Organization and UNESCO.
New challenge for the music industry: thanks to a clause in their contract, artists can reclaim ownership of their records.
Indeed, the copyright law was revised in 1976 in the United States,
saying that artists can, by appealing “termination rights,” claim
ownership of their recordings. Thus they would have the right to take
over the control of their works after 35 years of exploitation by their
record company, if the request is made two years in advance.
Read the article online
DEBATES 2011 - Intellectual property - Graduated response in Great Britain, the USA and New Zealand
Following
the publication of the Hargreaves’ report, the British government has
clarified its position. First, format shifting from CDs and DVDs to
digital format for private use will be allowed without any compensation
for content producers. In many countries, especially France, Spain and
Germany, supports allowing private copying are subject to a tax. A part
of the price is paid back to copyright collecting societies.
Read the article online
Always Further - Intellectual Property and Growth: new approach of the copyright in UK
 The 18th of May, Ian Hargreaves, chairman of digital economy at the Cardiff School of Journalism, published his study « Digital opportunity, a review of Intellectual Property and Growth »
commissioned by David Cameron. Hargreaves exposes clearly the
deficiencies of the current system and proposes new measures for an
effective intellectual property that protects and engenders the
creation. Its main conclusion is that laws should be adapt edto the
digital development and answer particularly this question: how is
it possible to protect the interests of copyright owners without
preventing entrepreneurs from exploiting opportunities online?
 A Large-scale operation in the United States to limit piracy
Approved last month, the PIPA bill (IP Protect Act - Preventing
Online Real Threats to Economic Creativity and Theft of Intellectual
Property Act of 2011.), also known as US Senate Bill S.968, aims at
fighting against the 'pirate' websites, which provide illegal access to
copyrighted works. This bill will deny access and linking to these
sites - especially those registered outside the United States. Thus, it
gives unprecedented powers of repression to the Federal Department.
 In
May, the German minister of state to the Federal Chancellor and federal
government commissioner for culture and the media, Bernd Neumann
announced copyright law reforms. He stressed that this would be in
favor of authors and creators, not users. It contrasts with the project
of global licence proposing a flat tax for the culture that had
been advanced by the Green politics recently, and rejected.
 Ending
a long legal conflict, Baidu, the Chinese search engine which controls
76% of the domestic market, has signed an agreement on July the 19th
with three majors of the music industry: Universal Music, Warner Music
and Sony Music, represented by the joint venture One-Stop China. The
partnership aims at fighting against piracy by allowing Baidu to make
available a legal offer on its website.
 The
publisher Hachette Livre and Google have submitted on July the 28th
2011 the conditions of their agreement for the digitization of works
commercially unavailable. Almost 50,000 print books, which rights are
held by the French publishing group, would be affected . Three
principles guide this agreement to respect the rights of authors and
publishers. Arnaud Nourry, CEO of Hachette Livre said that "it is
a framework to start all over again, with new bases: fair, balanced and
respectful of our rights".
 40
million pages from one of the biggest collections of historic books,
pamphlets and periodicals are to be made available on the Internet.
Indeed, the British Library announced last week a program to digitize
250,000 books as part of an agreement with Google Books.
Read the article online
Always Further - National Library of France looking for partners to digitize.
 The
National Library of France (BNF) and the French Ministry of Culture and
Communication launched last Wednesday a call for private partnership to
digitize and develop the collections of the BNF. The BNF continues its
program started 10 years ago – especially since the agreement with
Frederic Mitterrand, minister of Culture and Communication to digitize
500,000 books unobtainable in bookstores.
 In
India, the project « adopt an e-book », concerned about conservation
and preservation of ancient Indian literature, has been launched
lately. The online bookstore BookGanga, initiator of the project,
embarks on the digitization of old manuscripts, asking consumers for a
small contribution.
Read the article online
Always Further - The social Netbook
 While
Facebook already proposed to create your visual bookshelf to list and
recommend books to all your friends, the numbers of social networks
dedicated to books are increasing. In France, Babelio exist since 2007,
providing extracts, reviews, quotes, top 10 for each genre, etc. and
everyone can share his reading. With more than 700 000 visits a month,
Babelio is supported by different publishers as Albin Michel, Gallimard
or Grasset: the more active members can be invited to comment new books
in previews.
 Digital
technologies and the Internet question the efficiency of intellectual
property rights. With a promise of an universal access to culture
(democratization of knowledge and instant copy of cultural works at a
lower cost), digital can lead, in the same time, to a destruction
process of creative works and therefore a weakening of economic models
of cultural industries.
 Refusing
the traditional codes of the publishing sector, the publishers of
“orbooks” implemented an innovative model emphasizing the place and
role of the reader. Favoring the selection of books (new as well as
established writers) to mass distribution, they promote design, quality
and an original of their books (Internet, videos, articles…).
 A
KEA study prepared for the European Commission aims at proposing a
working document mapping the cultural and creative sectors of the EU
and Chine in the framework of the project UE-China for the protection
of intellectual property (IPR2).
 What
are the real losses engendered by piracy in the book industry? How do
the main actors of the market react to this phenomenon? This article,
published in march 2010, confronts the reality of piracy to its effects
of the book industry, presenting figures related to the cost of piracy
on American book houses.
Did you know? 65% of the US Internet users have paid to download or access to online cultural contents
 The
American research center Pew recently published in december 2010 a
study related to the consumption habits of Americans on the Internet.
It can be learnt that 65 % of the Internet users have already paid to
download or access to online cultural contents.
Read the article online
 The
Midem published a study with the Institute Nielsen, in december 2010,
related to the music consumption habits of the Internet users. For the
study elaborated in november 2010, more than 50% have downloaded a song
from the internet for free in the last three months (not only
illegally).
Did you know? Streaming vs. download, figures of the online consumption
 According
to the REC barometer of GFK institute about the French’s digital uses
(a survey prepared with 1000 French Internet users aged 15 to 65),
music streaming represents now 51% of listening on the web, more than
the download which corresponds to 49%. The most popular sites are video
platforms (YouTube, Dailymotion) and live listening (Deezer, Spotify),
and then Web radio.
2010LAB.TV
For its fourth edition, the Forum d'Avignon renews its partnership with the 2010LAB.tv.
Find the videos of 2010LAB.tv for the Forum d'Avignon 2010: on the
theme "culture and urban development": an interview with
Philippe Augier (Mayor of Deauville), an interview with Didier
Fusillier (director of Lille 2004 and MAC Créteil) ; on the "digital
cinema", an interview with Ignasi Guardans (former director of the
Institute of Cinema and Audiovisual Arts, Spain) about the challenges
and opportunities in Europe, an interview with Mahesh Bhatt (writer,
director and producer, Vishesh Film) about India, and an interview with
Philippe Reynaert ; an interview with J. Allen Scott about the
emergence of a "cognitive and cultural capitalism " ; an
interview with Arjun Appadurai, (anthropologist of globalization) on
"Culture, economy and society" ; an interview with Ineum
consulting about the study " strategies for sustainable employment and
urban development planning?"and all the interviews collected during the
entire event.
Created at the initiative of the institute ECCE (European Centre for
Creative Economy) 2010LAB.tv is a web TV broadcasted only on the
Internet. With its videos and its blog (including the themes of art,
the economy or education), 2010LAB.tv allows to follow projects in the
Ruhr area and the European partner cities, including the ones that
demonstrate factors of innovation, as well as the "economic power" of
culture. Currently, these are 20 authors from 10 countries
participating in the project, investigating culture and the
transformation of these cities. European portal for cultural and
creative industries, the 2010LAB.tv highlights the importance of
creative industries in the cultural and social evolution.
Next newsletters - Prepare the debates with accurate witnesses :
- Debates 2011: Cultural referencing and prescription (early October)
- Debates 2011: Culture and connected screens (mid October)
- Debates 2011: Intellectual Property, artists' points of view (early November)
Your commentaries, contributions and proposals are crucial!
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