Archive for February, 2008

Longer Copyright Terms and Poor Performing Artists

Friday, February 15th, 2008

EC commissioner Charlie McCreevy has proposed to extend the term of copyright protection for performing artists from 50 years to 95 years.
“Performing artists – no longer be the ‘poor cousins’ of the music business”. It sounds good but does it make sense? There are millions and millions of performing artists, now and throughout history. Most of them are not the cousins of the music business and my guess is that 99.999 % of them will not profit in any way, would this proposal become reality. For the ones that will profit, I am sure they have already profited greatly from the 50 year period, which I find rather long already. There are other ways to secure pensions of performing artists, if that would be a problem. In fact, there are ways to do that within the current framework. This is just a way of trying to make it sound good, but it doesn’t.

The proposal made me think of Bobby Farrel of Boney M, who was wildly famous but did not earn much (others like his producers did) and now lives in the least popular area of Amsterdam. This is a commercial of an insurance company.

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For a lenthy, serious and balanced discussion of copyright terms for performing artists (related rights) see the Recast study of the Institute for Information Law, commissioned by the European Commission. Chapter 3 (50+ pages) deals with exactly the subject matter of this proposal.

The report states in the text:

First, it is questionable whether a term extension would really benefit the majority of
performers or rather a specific group of bestselling artists. [...] Moreover, it is uncertain whether revenues from related rights would provide performers with a certain source of future income or enable them to continue to earn an adequate income through their retirement years. At least, it is questionable whether these revenues would provide an adequate pension for most performers. If so, the question must be raised whether there would not be other, more sophisticated means to achieve this goal, rather than prolonging the terms of protection as an ultimate retirement policy for a small group of performers.

and the conclusion whether term extension will benefit performers artists is:

Overall one can say that a term extension would indeed benefit those performing artists that are still popular after 50 years and still receive payments from collecting societies and/or participate in the revenues from the sales of their recordings – providing they have not signed away their rights against a single fee [Like Bobby Farrel above, JvH]. Para. 3.4.2.2 above has shown, however, that the share of recordings that are still commercially valuable after 50 years makes up for only a small part of the overall repertoire. Benefits from a term extension would therefore only accrue to a limited share of performing artists. For the larger part of performers that do not derive substantial revenues after 50 years, a term extension could –depending on the contractual setting– prevent their recordings from either being commercially exploited by a secondary party or by themselves; or from becoming accessible to the general public.

From the conclusion:

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. [...] 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.

And about the need for a robust public domain:

The fact that some recordings still have economic value as rights therein expire, cannot in itself provide a justification for extending the term of protection. Related rights were designed as incentives to invest, without unduly restricting competition, not as full-fledged property rights aimed at preserving ‘value’ in perpetuity. The term of related rights must reflect a balance between incentive and market freedom. This balance will be upset when terms are extended for the mere reason that content subject to expiration still has market value. The public domain is not merely a graveyard of recordings that have lost all value in the market place. It is also an essential source of inspiration to subsequent creators, innovators and distributors. Without content that still triggers the public imagination a robust public domain cannot exist.”

Of course, the idea here is that there should be convincing arguments for term extension, for it to be legitimate. McCreevy seems to think it’s the other way around: “I have not seen a convincing reason why a composer of music should benefit from a term of copyright which extends to the composer’s life and 70 years beyond, while the performer should only enjoy 50 years, [...].” That’s turning the issue upside down. Besides 70 years is rather long as well.

Censorship by Internet Access Providers

Thursday, February 14th, 2008

Electronic Frontier Finland (Effi) and the website of YLE (the Finish national public boradcasting agency) report about censorship of a Finish site. The site in question, lapsiporno.info (“childpornography”.info), by Internet activist Matti Nikki, criticizes a new Finish Law that prescribes Internet Access providers to  the new Finish practices of law enforcement pressuring internet access providers to use their secret lists to filter the internet for their subscribers, aiming to prevent access to child pornography.

The particular site does not contain child pornography. It does have a list of several hundreds of URL’s that are filtered as a result of the new Finish Law.

There are a number of critically important issues here.

First, who decided to put this website on the list and on what grounds? If the site is considered to be illegal, why would it be put on such a filter list if it is hosted in Finland? The site should be targeted instead and possibly taken down after due process.

If public authorities put a website on a filter list for access providers, without that website being illegal, this is unacceptable. It is even more unacceptable in case those access providers are obliged to filter on the basis of that list.

Filtering by access providers should be a last resort, if it were to be accepted as a public policy at all. The filtering of websites by access providers at the request of public authorities, which are hosted in the same country, is unacceptable. It means law enforcement is too lazy to do their job. To put a website on a list is very easy. To start a legal procedure takes time and effort.

Finally, the said list (if correct) contains mostly US and EU based websites. Of the EU based websites most of them are listed as Netherlands based. Two questions arise. First, what does this mean for Dutch law enforcement. Should they already have taken down these sites or are they legal? Second, how does this list relate to the international filtering list of child pornography and the list that is used by Dutch Internet access provider UPC (owned by Liberty Global)?

UPDATE: the idea in Finland seems to be that the filtering by access providers is voluntarily. Thus, the provision of the list by law enforcement authorities is merely a ‘service’ to the private sector. The same is argued in the Netherlands by the national police agency the KLPD that provides the list to UPC. It also resembles the official arguments about filtering by search engines in Germany. I would argue it is not self regulation, but co-regulation and public authorities should be held fully accountable for their role in these filtering schemes. If they are the effective controllers of the list and they argue it’s a child pornography list, they cannot point to the ISPs using it as being the only ones responsible. Also, if it would be completely voluntarily, the access providers run a serious risks of having some other lists provided to them for filtering.

Google Earth Sued for Slander

Tuesday, February 12th, 2008

As reported by international media, an Israeli town has filed a complaint against Google Earth with regard to a user’s note on the map saying the town was built on Arab ruins. (via Wolfgang Sakulin) A very nice example for the paper on intermediary liability I am currently writing for the EuroCPR 2008 conference in Sevilla 31 March- 01 April 2008.

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The note on Arab Ghawarina states: “This is one of the Palestinian localities evacuated and destroyed after the 1948 Arab-Israeli war. For basic information about this locality, including brief history, the 1948 events, its current status, pictures and statistics, visit: www.palestineremembered.com For corrections of coordinates & updates please email [...]

A few years ago, I was in Israel myself for the first time. I stayed in the south of Tel Aviv, near Old Jaffa and was surprised by some of the existing discourse about land ownership. I visited a military/Israeli resistance museum at the beach, which consistently spoke of the liberation of the town of Jaffa, without any attempt to be objective and acknowledge the (partly) Arab history of the town.

EP Seminar on Web Search Privacy and Targeted Advertisement Merger Reviews

Tuesday, February 12th, 2008

Should the European Commission address the privacy implications of the Google Doubleclick merger review and impose conditions? What does the Data Protection Directive mean for the logging and profiling of users by Web search providers? These were the central questions discussed at the public seminar, of the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament, on Monday 21 January 2008. Invited speakers included, Peter Hustinx (EDPS), Pamela Jones Harbour (FTC), Mark Rotenberg (EPIC) , Peter Fleischer (Google), Thomas Myrup Kristensen (Microsoft), Cornelia Kutterer (BEUC) and Sjoera Nas (Dutch DPA).

Although the afternoon started promising, with opening remarks by chair Cavada on the long history of the need for scrutinizing concentration in the information and communication industry, referring to the fundamental issues at stake for individuals and society as a whole, the debate did not bring many perspectives that had not been offered previously.

The discussion about IP addresses, processed by Web search providers in their logfiles, made the news. More specifically, the statements by Hustinx, and Peter Schaar, chair of the Article 29 Working Party that search engines should treat them as personal data, as defined in the European Data Protection Directive. This is just a reiteration of earlier conclusions, most notably the opinion of the Article 29 Working Party on the concept of personal data. The Dutch DPA recently published guidelines on privacy and publications of personal data on the Web, that included the same conclusion. I never heard any sensible legal argument why ip-addresses would not (in general, there are a few specific exceptions) fall under the definition of personal data in EU law. Surely there are many practical reasons, including the lack of will to deal with the provisions on fair and accountable procession of personal data of the Directive, but that’s a different question. In the U.S. there is a similar debate, which is more open due to the lack of any definition or norm of what constitutes personal data under U.S law.

The remarks about the relevance of the possible privacy implications of the merger were not of the same quality and level as the discussion in the United States. FTC Commissioner Harbour restated her opinion that the economic relevance of the personal data and the effects on privacy of the merger should be part of a merger review. There seems reason to believe that the Commission will approve the merger, without privacy conditions. However, merged or unmerged, data protection laws will apply. As Sjoera Nas of the Dutch Data Protection Authority stated:

In her opinion, the privacy directive was adequate, in that it provided a clear, useable framework. For her, it was not
for the data protection authorities to consider the consequences of a merger, but for the companies themselves to continue to comply with data protection rules. She also called for adequate enforcement powers of all data protection authorities.

An official summary of the seminar is available through Statewatch.

A blog meme: Unger and the movement

Monday, February 11th, 2008

I got tagged by Michael Zimmer to participate in a blog meme. I have to write down the 6th-8th sentence on page 123 of the nearest book.

The nearest book, The Critical Legal Studies Movement by Roberto Mangabeira Unger does not contain a page 123 with text (the index starts there) but it does contain a page 24 ( 1 + 23 ) and sentence 6 to 8 go as follows:

According to this modern view, the system of rights would rise above the real social order. Rights would work either as if this order did not exist or as if it could be adequately tamed and justified by the mere expedient of treating it as nonexistent for purposes of rights definition. The critical legal studies movement has committed itself to another change in the conception of the relation of law to society, potentially equal in scope and importance to the shift to rights indifferent to social rank and place.

The book is rather complex. I seriously recommend it to anyone willing to test his or her limits of comprehension. Besides it is a classic in legal theory, criticizing formalism and objectivism resulting in a proposal for a constructive outcome.

I forward this little game toTheo Rohle at Netzmedium, Samspung at HiLaws, Peter Ryan at PR networks, Thomas Boonstoppel and Masters of Media.

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