In February, the European Commission decided to shelve all its plans to tackle online privacy. As the end of the insitutions' current mandate approaches, Brussels wanted to keep away from a topic which had become "too controversial", according to an official close to the dossier.
The French 'graduated' approach
Since the French government brokered a deal in November 2007 between Internet service providers and content producers, meaning music, film and book associations, Paris has been trying to extend its model all over Europe, especially during the French EU Presidency in the second half of 2008.
The so-called 'accord de l'Elysee' is based on a report written on behalf of the French authorities by Denis Olivennes, a former chief of the culture distribution company Fnac. With the objective of protecting authors' rights, the report supports the idea of a three-step, graduated approach to countering piracy, the last step of which would be to suspend or cut the connections of users who illegally download copyrighted material.
Under the French proposals, a new authority would be set up to apply sanctions on serial offenders. Internet service providers, which are often big telecoms companies, would implement filtering measures and apply sanctions on behalf of the new authority. The industry deal is currently in the process of being transformed into French law.
Other European countries are less keen on introducing such measures, but many are considering warning messages, which would be a sort of one-step approach and would not be followed by the enforcement of sanctions against offenders.
Controlling the Internet is controversial, because it raises highly sensitive issues like censorship. It is also technically very complex and prone to mistakes. Indeed, ISPs could end up cutting the wrong connection or punishing an entire building for the alleged misdeeds of a single user. What's more, it is not easy to decide who should implement such sanctions.
Internet providers: Turning into policemen of the Web?
Internet service providers are lobbying hard to prevent such an unappealing task from falling on their shoulders. "We don't want to become policemen of the Net," they have underlined in many occasions. In this battle, they could rely on the support of consumer groups, which are strongly against filtering the Web and support peer-to-peer websites.
So far, their efforts appear to have been successful, since no EU-level initiative has been introduced to mirror the French model, despite a number of attempts to introduce similar measures via various legal instruments.
MEPs, mindful of authors' rights and favourable to the French cause, tried to introduce explicit anti-piracy amendments to a review of EU rules governing electronic communications, which has been under discussion between the Union's institutions since November 2007. But their attempts have so far failed (EURACTIV 25/09/08).
Fear of all these legislative procedures prompted the Commission to shelve its review of the e-Commerce Directive and a new Communication on online content, both of which had been expected before the end of the current executive's mandate (EURACTIV 16/02/09).
Maintaining the status quo, however, is far from an adequate solution. The vagueness of the present rules has provoked a whole host of different interpretations in national courts. In France, online auctioneer eBay was forced last year to pay significant damages to the designer Louis Vuitton for selling fake luxury goods. But in Belgium, the court took a soft line on accusations by Sabam, the Belgian association of authors, that the Internet service provider Scarlet had allowed illegal file-sharing.
In the meantime, illegal downloading is spreading to new forms of content. The music and film industries have so far been hit most by piracy. Broadcasters are also feeling the pain, owing to an increased number of websites streaming copyrighted live sports events for free.
Consumers are not the only ones accused of violating copyright in the online environment. Web giants often find themselves under the spotlight for using business models which allegedly put at risk fair compensation of content producers. Google in particular is involved in all the major legal battles concerning online copyright.
Publishers lock horns with Google News
In the eyes of publishers, the most controversial service offered by Google is its news aggregator Google News. Many love it, because it attracts readership by reproducing short abstracts of their content. They acknowledge that "not being on Google News means not existing as a media".
But not everybody is happy. Big news agencies such as Agence France Presse (AFP) and the Associated Press (AP) have sued Google for illegally reproducing their material. After lengthy negotiations, the Internet search giant managed to strike deals with them. Belgian publishers' association Copiepresse, which represents the country's main francophone newspapers, went further, requesting Google not to reproduce its news and obliging the US giant to pay a fine. Similar cases are ongoing against the news services at the other two major search engines, Yahoo! and MSN (Microsoft), which are much less popular than Google News.
A new chapter in the battle over Google News could be soon written, after Google in February started to use advertising on its US news aggregator, which will bring the American giant direct revenue from the service.
Formal and informal deals with major media companies have so far been based on the implicit assumption that Google would not make a profit from the content it is taking for free from their websites. A new scenario is now emerging. "We're certainly not surprised by the move, which places Google News in a position to compete with news publishers, giving us cause for concern," said Alisa Bowen, a senior vice-president at Reuters.
The publishers' approach to Google, and search engines in general, has turned even more sour owing to their refusal to use a new protocol to index content online, called ACAP (Automated Control Access Protocol), developed by publishers and designed to boost the monitoring of copyrighted content.
The current de facto standards are Web robots: the original 'robot.txt' developed in 1994, and a more advanced version 'robot META tag', which followed a couple of years later. Website managers use robots to tell search engines what they should and should not index. A number of new specific functions are being developed, but ultimately search engines retain broad autonomy over indexing, and often indirectly index content which they are not supposed to grab.
This is a problem for publishers, because it limits their ability to use and profit from their own Web content. New, more complex business models are being developed, with newspapers only wanting to show limited parts of their content in search engines or to limit the period for which it is available. Web robots are not considered to be efficient enough, and ACAP would solve the problem, according to publishers.
However, the main search engines are adopting a wary approach to the new protocol, and have so far refused to implement it. Empowering content producers regarding the indexing process of a search engine can indeed bring nasty surprises if website managers have cruel intentions, such as introducing porn material being introduced by an abstract referring to a cartoon. "Parents will not be happy if something like this happened to their kids," a spokesman for Google pointed out.
The legal battles over Google News have been mirrored by similar disputes in the US about Google Book Search, the revolutionary project to digitise books out of print. After lawsuits filed against the project in 2005, Google struck a deal with the Association of American Publishers and the American Authors Guild in October 2008, agreeing to pay them a share of every book in copyright but out-of-print sold through Google Book Search.
The agreement was a victory for Google, which overnight became a major bookseller, dwarfing Amazon and all other competitors in terms of number of books offered. But it has been welcomed as a landmark step forward by authors and publishers too, which expect a new wave of revenues from out-of-print books, usually considered as dead assets. In-print books, which earns publishers and authors the majority of their income, were not covered by the agreement. Ultimately, readers will also gain from the increased number of books availalbe that are otherwise difficult or impossible to find.
The deal concerns only books under US copyright. In the EU, there is no agreement at this stage. The European Commission does not intend to take any action in the immediate future, but is in principle favourable to the substance of the American deal, because it goes in the direction of increasing access to knowledge, which is a priority for Brussels.
However, the issue of orphan works still remains open. These works are under copyright, but the rights holders are not identifiable. Since they cannot be exploited and yield no financial benefit to the author, "they are unproductive both in economic and social terms," concluded the Commission in a recent document.
In 2006, Brussels recommended member states to find a common solution at EU level to solving the problem in the general interest.
Another front in the online copyright battle concerns video, and again primarily involves Google and its outlet YouTube, the most popular video-sharing website in the world. In this case, broadcasters are complaining of unfair competition. A range of suits have been filed by top media companies, such as Viacom (the owner of MTV and Paramount), Mediaset (the media group of Italian Prime Minister Berlusconi's family) and TF1 (the main French private television channel) against YouTube for its allegedly illegal use of their content.
Indeed, it is often possible to watch TV series or famous sketches on YouTube, even if they are copyrighted. Mediaset estimates that its losses owing to unfair compeition from YouTube amount to at least €500 million.
One possible solution could be 'Video ID', a technological device through which YouTube is able to track videos and movies that have been illegally downloaded or watched on its channels. The right owners can then decide whether keep them on YouTube, withdraw them or make money from their usage. The association of European publishers (EPC), which is usually very suspicious about Google's technology, welcomed the move as a good means of "building confidence and trust with rights holders".