Copyright protection of online content

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As cultural content migrates online on a massive scale, legal battles are multiplying to prevent piracy, protect copyright and make money out of this growing business.

Background

Online content includes music, film, radio, television, newspapers, games, and educational and user-generated content, such as blogs. The European Commission estimates that by 2010 revenue from these services will soar to over €8 billion in the EU, from less than €2 billion in 2005. 

Such exponential revenue growth is in large part due to the increased number of affordable cultural products available on websites such as iTunes (for music), Netflix (for movies) and Amazon (for books). But the largest amount of downloaded material still comes from peer-to-peer websites, on which users share content, sometimes of illegal provenance.

Where does the emerging 'right' of free access to knowledge end? Where does established but endangered copyright of authors and labels begin? These are the main issues of contention between the so-called cultural industries and users, and Europe is still trying to strike the right balance.

A second battle sets content providers against distributors of their material online. Here, Google finds itself in the eye of the storm. The American search giant is under fire from publishers over its news aggregator Google News, and from broadcasters over the video portal YouTube, which it bought in 2006. The key issue is the same: how to protect or make more money from content used or reproduced by Google services.

The American Internet giant is also coping with new potential legal challenges regarding the digitisation of books. In the US, a landmark agreement with authors' and publishers' associations will allow Google Book Search to provide wide distribution and eventually make a profit from out-of-print books, a move which deals a terrible blow to competitors like Amazon. In Europe there is no such deal, and it is still unclear what will happen to so-called 'orphan' works, which are still in copyright but whose owners are unknown.

Issues

Piracy

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.

Revenue sharing 

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.

  • Books

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.

  • YouTube

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".

Positions


  •   Piracy

"It would seem appropriate to instigate cooperation procedures between access service providers and rights holders and consumers in order to ensure a wide online offer of attractive content, consumer-friendly online services, adequate protection of copyrighted works, awareness raising/education on the importance of copyright for the availability of content and close cooperation to fight piracy and unauthorised file-sharing," is the approach supported by the European Commission  in its official documents.

Information Society Commissioner Viviane Reding confirmed: "Do we want to have a strong music, film and games industry? Then we should give industry legal certainty, content creators fair remuneration and consumers broad access to a rich diversity of content online."

The three-step approach under discussion in France to block online piracy is opposed by consumer groups. BEUC, the European consumers' organisation, "strongly disapproves of the French approach to unauthorised use of copy-protected content for non-commercial purposes. 

"BEUC is opposed to making Internet Service Providers become some sort of a private 'Internet Service Police'. It would be equivalent to making the postal services responsible for the content of letters or making mobile companies prohibit any discussions on the phone if they have a criminal content," it said in a statement.

France has a completely different position: "To effectively avoid online piracy, filtering measures could and should be applied, although it is necessary to agree on common filtering targets and on technologies to filter," reads a statement given to the European Commission.

The International Federation of Film Producers Associations (FIAPF) considers that "fighting against online piracy and unauthorised sharing of copyright content in the online environment requires committed and good-faith joint efforts from all the parties involved: rights holders, ISPs and consumers. The content recognition technologies form part of the strategy aiming to fight against online piracy of creative content and to secure the development of the legal content online services".

The association of the main EU telecoms operators, ETNOholds that the French model "raises a range of issues that need to be further considered and analysed. ETNO questions the approach of filtering for the purposes of tackling copyright infringement and asks the Commission to reconsider. Filtering is best performed at the level of the individual. Any broad use of filtering, over and above the specific case of blocking of sexual exploitation of children, would put freedom of expression at risk".

The association of alternative EU telecoms operators, ECTAechoes ETNO's position on controlling online traffic: "We believe that filtering systems are hardly consistent – from a financial and technical point of view - with the normal course of business of broadband network operators," reads a statement.

ICMP, the International Confederation of Music Publishers commented: "The internet has created great opportunities for composers and songwriters, but also led to a flood of unauthorised music which undermines the right of creators to be rewarded for their works.  This is a substantial problem that affects people right across the music sector and other creative industries. There is a solution available by engaging ISPs to help protect creative content and limit large-scale infringements that are happening on their networks".

Helen Smith, executive chair of Impala, which represents independent music companies, thinks "the 'graduated response' is an effective and pragmatic approach that respects both individual liberties and the fundamental rights of creators and producers. For the digital music market to take off, it has become necessary and urgent, across Europe, for systems combining prevention and deterrents to be implemented to put a stop to illegal downloading".

The Association of European Radios (AER) is pushing for better copyright management. "Our sector pays over €323 million per year for copyright and neighbouring rights, and therefore feels entitled to call for transparency and fairness in the management of copyright and neighbouring rights by the collecting bodies," reads a statement submitted to the Commission.

The European Broadcasting Union (EBU), which represents EU public broadcasters such as BBC or ARD, complained of "insufficient experience with respect to so-called filtering mechanisms. Although such mechanisms may be worth exploring, uncertainties would seem to exist particularly with respect to usage of protected material for non-commercial purposes. In addition, the more such a mechanism is supposed to operate in an automated manner, the more safeguards may be needed to ensure that this does not give rise to conflicts with other constitutional rights, such as freedom of speech or the freedom to provide information. This requires further study and discussion".

The Association of European Commercial Televisions (ACT), such as TF1 or Mediaset, fears the growth of online piracy of live sport, easily accessible on the Internet through websites located outside the EU. 

ACT responds to this by saying "it is a matter of culture, education and mentality to foster an attitude of respect for copyright, especially from the younger generations, and all stakeholders must invest in preventing illicit behaviour and campaign for effective detection and eradication of piracy, forming alliances to combat the illicit use of protected content".

  • Revenue sharing

EU culture ministers in November agreed to "encourage efforts to promote the interoperability and ensure the transparency of technical measures to protect and manage rights, for example by means of a system of identification/labelling". 

The European Publishers Council (EPC), representing the main newspapers and printed media, underlines: "Two trends have become very clear over the last two years. First, there is the continued growth of search engines and the pivotal role they play in linking online content to consumers of that content and second, the rise of social networks (like YouTube and MySpace) and other platforms through which content, user-created and otherwise, is shared".

Against this background, "it is important to highlight publishers' freedom to choose appropriate methods of rights management and primacy of direct licensing," such as ACAP. On the other hand, "technology to track and identify ownership of copyright works has a key role to play. YouTube, for example, has recently introduced filtering software which checks newly uploaded videos against a database of copyright protected content. The use of such tools by intermediaries such as YouTube clearly help to build confidence and trust with rights holders".

The European Federation of Journalists (EFJ) believes that "digital rights management (DRM) could be a good device to manage the use of journalistic works online, so long as their use is decided and agreed upon by all parties involved, including journalists. Ideally, DRMs should be managed on behalf of journalists by collecting societies".

However, "it appears the Commission wishes to foster competition between collective management organisations with the aim of getting lower prices for users and lower costs for authors. If a choice is to be made between the advantages of free competition and the advantages of cultural diversity and of not tipping the balance further in disfavour of the great majority of authors and performers, the Commission should chose the latter," reads a statement.

On orphan works, journalists "have identified a need to ensure effective measures to prevent removal of Rights management information from works in all member states," in order to decrease the number of works without a known author, EFJ says.

The Business Software Alliance (BSA), which represents IT companies such as Microsoft, Apple and Symantec, "supports technologies that protect online content and ensure user security. Legislative mandates in the name of 'interoperability' of digital rights management should be strongly disfavoured, in that they cut off important innovation and experimentation in developing these new business models," reads a statement.

Google said in a statement that "the main challenge to be addressed to foster the uptake of online content services and improve respect of copyright in the online environment is to develop content services meeting users' expectations and needs. In this context, Google isestablishing a great number of partnerships and licensing agreements with rights holders to provide innovative content services, allowing users to search and access content online".

Microsoft 
underlines the importance of "addressing the questions surrounding 'content portability', i.e. whether and how consumers will acquire and enjoy copyrighted content in the digital environment. In considering these issues, it is important not to be overly focused on whether devices, content and digital rights management systems interoperate. This is only one technical part of the content portability issue, which involves the intersection of many different stakeholders, technologies, laws and other facets of a new, dynamic and emerging marketplace".

In any case, "interoperability between different types of content or services is best developed through industry led initiatives rather than regulation," Microsoft says.

According to Yahoo!, "the main obstacle to interoperable digital rights management systems has been the unwillingness of certain device manufacturers and service providers to open their DRM systems to other content distributors or device manufacturers. Yahoo! has been involved in discussions in this respect to seek interoperability for many years but has not been able to find commercial and technical solutions to overcome these challenges". 

"We also note that even if technical interoperability were to be established, interoperability at the consumer level can still be derailed by content providers refusing to adopt licensing terms that take advantage of such capabilities, for example by restricting the number of devices or type of devices such content might move between," it said in a statement.

 

Timeline

  • 30 June 1994: Internet experts agree on de facto standard 'robot.txt' for indexing online content.
  • 9 Apr. 2001: Council adopts the EU Copyright Directive, the key legal text for online copyright in Europe.
  • Dec. 2004: Google launches its Book Search project (initially called Google Print Library Project).
  • Sep.-Oct. 2005: Two lawsuits filed against Google Book Search in the US.
  • Oct. 2006: World publishers endorse ACAP as alternative standard to Web robots.
  • 13 Feb 2007: Google is condemned by a Belgian Court to pay compensations to Belgian newspapers publishers represented by Copiepresse for the unfair use of their content in Google News.
  • 23 Nov. 2007Accord de l'Elysee signed in France between Internet service providers and the content industry.
  • 3 Jan. 2008: Commission presents Communication on creative content online.
  • July 2008: Commission presents Green Paper on copyright in the knowledge economy.
  • 28 Oct. 2008: Google signs deal with the American Authors Guild and with the Association of American Publishers over Google Book Search.
  • 25 Feb. 2009: Google starts running ads on US Google News.
  • The next European Commission is expected to review the eCommerce Directive (including its copyright aspects) and present a follow-up document to the Communication on creative content online.

Further Reading

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