Copyright and droit d'auteur in the digital era

-- By KamelB - 31 Dec 2009

Introduction

A bill of law has been passed by the French parliament, and I am somewhat afraid it would create a precedent- let’s say an inspiration, to be more precise- to worldwide legislators that would deal with internet hackers. Under this bill, a hacker is defined as any person that would obtain a file protected by copyright through peer to peer or dowlnoading without a just remuneration. The specificity of the copyright in France led to an intense fight between producers, ‘hackers’, singers and major companies in music and film insdustries. While the conventional US notion of copyright defends the interests of the entrepreneur who bears the project funding issues, the French ‘droit d’auteur’ compensate the ones who are at the origins of the piece, recognizing the idea and the author for 50 years after the artist’s death. However different, the two systems are faced to the substantial rates Internet posed to the remuneration of artistic creation.

• I don't think there's any basis disclosed here or later in the piece for the contention that there is any meaningful difference between French and US copyright law relevant to the issues under discussion. Your description above, which is only approximately accurate, does not demonstrate the existence of such a difference.

The supposed solution

To fight off illegal downloading, the bill established a gradual retaliation that consists in identifying, warning, and punishing. The only person identified is the one who owns the conexion through the IP address, but, as you can imagine, several persons can use the same address to download illegally. While the intiial talks pressed for an obligation to watch for its own connexion, the bill established a crime of non-control, which makes liable the ower of the IP address even when his own connexion is used to illegally download. Effficient deterrent and incitment to more vigiliance for some, others argue that it provides to major disc and movies companies a substatial protection in addition to what the legal system would through illegal downloading claims.

The bill also included warning emails and ground letters sent to the home address, followed by a suspension of internet access for a period ranging from one month to one year. Not only can this suspension substantially affect one’s virtual life, but it is also shot of appeal when users would contest such warnings. They would be entitled to appeal the decision only when the suspension is effective, and not before. Concerned individuals would also be placed on a black-list an internet provider would probably automatically consult.

Big brother and the law

In June 2009, the Constitutional Council struck down the law, on the ground that the Internet is a ‘’component of the freedom of expression" but also because "in French law the presumption of innocence prevails’, a principle that automatically places sanctions under the judge’s province. Following this intense debate on the particular issue, it is worth questioning such a protection granted to art, in conflict with the right and access to culture. Not justly compensating the art industries would probably end up in a decrease of creation, and access to free culture is an utopia under any capitalist system. At the core of the tension between free access to culture and promotion of arts are an alternative, shily developed, but that need further consideration.

From the ‘all rights reserved’ to the ‘some rights reserved’ framework

The licence globale was developed in France as a means to compensate artistic downloading but was until now systematically rejected as a solution. Put simply, it consists in an additional fee on internet access that would cover any download. The compensation paid is to be collected by the access providers and distributed to a common fund of major disk or movies companies. The current context makes impossible to prevent downloading of protected pieces, unless controlling 24/7 in the despise of individual freedoms. Moreover, this system would more fairly take into account the artistic creation at the expense of the traditional distribution cycle.

However, this system has its limits to this extent it fits better in a system that better recognizes the droit d’auteur. Moreover, free riders considerations make it difficult to promote such a system. How can’t we imagine majors downloading their own products to artificially increase their royalties?

The Choruss whistle

Narrowing down the issue to the American purpose, such a system emerged as an alternate to the current one. Originally, it was developed to tackle with campuses’ downloading, and would allow students in a given university to download in exchange of small higher rate of tuition. Such a development echoes the new interest for voluntary collective licensing, and under this model supported by diverse organizations such as the Electronic Frontier Foundation or the Warner Music Group, a flat monthly fee would be collected covering all music access and download. The money collected is then distributed to copyright holders, and the tension between both interests would then be solved. While one country takes one road, the other finds under a a voluntary collective licensing shceme the solution to the rates digital era pose. But while one system would have been better armed to deal with singers or artists royalties, the other still considers the scheme rejected by the former. Can such a system, if generalized, could lead to a better recognition of the artists’ compensation? Can we expect a change in US copyright law that would better recognize the ‘droit d’auteur’?

• Compulsory licensing only makes sense if you know whose works you are subjecting to a compulsory license. The traditional system allowed recording companies a decision about whose work was published, after which collection societies collected royalties for distributions, public performances, transmissions, and other publicly-verifiable events. In the world of the net, no one determines who can publish a work theoretically subject to a piece of this wonderful compulsory license fee. And the act of sharing a cultural work is not public, unless you're going to make everyone publicly disclose every communication she has with everyone else in the net, which is totalitarian in the most literal sense. So a compulsory licensing scheme cannot actually work, it can only collect money from people and give it to people power likes. That's evidently unacceptable.

• Perhaps you have a solution to this problem. If so, you didn't mention it.