Transcript: Copyright On the Continent

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Copyright On the Continent
an interview with Victoriano Colodron

for podcast release
Monday, January 23, 2012

KENNEALLY: International copyright law. At Copyright Clearance Center, we hear people innocently using the phrase quite often. Of course, there are important treaties that outline basic global principles of copyright, but there really is no such thing as international copyright law, because each country in the world has its own unique laws on copyright, just as each country has its own laws and regulations on property ownership, contracts, and business conduct.

Hello, and welcome to Beyond the Book, the podcast series for the non-profit Copyright Clearance Center. My name is Christopher Kenneally. And for our program this time, we look out beyond the American shore and across the Atlantic to Europe, to find out what the last 12 months have brought to copyright law in France, Great Britain, and all around the European Union.

For our source, we turn to Victoriano Colodrón, Executive Director of CCC’s European subsidiary, RightsDirect. Welcome, Victoriano.

COLODRÓN: Thank you, Chris.

KENNEALLY: Well, it’s great to have you on, and you know, people are going to recognize your voice, of course, as you’re the occasional host of special programs from RightsDirect within the Beyond the Book series, and we might tell people a bit about you by way of background.

Victoriano Colodrón joined RightsDirect in September 2010 when it was launched, and he came from CEDRO, the Spanish Reproduction Rights Organization, where he held the post of Deputy CEO since 2000, the year 2000.

Victoriano, who holds a Master’s Degree from the Universidad Complutense de Madrid, has also held different positions at the Spanish Ministry of Culture, and the National Library of Spain. So, eminently qualified to sort of look out across the continent, and give us an idea of what has been happening.

And, you know, while the point I made at the top, Victoriano, was about that whole notion of national treatment, that every country has its own laws, in Europe, there is something special going on, which of course, is that the European Commission, which is the executive body of the European Union, is making an effort to harmonize copyright law across the Union. Can you talk about what’s been going on in that effort?

COLODRÓN: Sure. It’s very interesting, Chris, because you know, in 2011, last year, was the tenth anniversary of a very important European directive, the 2001 InfoSoc directive, that attempted to harmonize copyright across the European Union.

And precisely last year, in this tenth anniversary of that important directive, the European Commission presented a new strategy for intellectual property for the next few years. And the main goal of that was to promote the effective creation of a single market in Europe for intellectual property rights as a way to boost creativity and innovation.

So, I think it was in May exactly, it was in last May that the European Commission presented this strategy, and it gathered a set of very interesting measures and actions in the field of intellectual property that, as you know, is broader than just the copyright arena.

But going to the copyright part of that strategy, one of the things that the Commission said they would focus on was on trying to push for a solution for multi-territorial licensing in Europe. So they clearly see that there is a market gap – there is a problem, because as they stated it in the document, sometimes it happens that European citizens in one country cannot access efficient licensing solutions online for digital content. And the Commission is very much committed to solving that.

So, they are announcing for the next few months of this year, 2012, they are announcing a new directive, which is going to address that. I think it’s going to focus specifically on the music market, but it’s going to have huge implications in the copyright arena in Europe, for sure.

KENNEALLY: Now, what’s driving all of that, Victoriano? Is it the consumer that really wants to see something come into place? Is it publishers and authors? Who’s behind the push to get this to happen?

COLODRÓN: I would say – I would say that one of the driving forces behind this move is the big companies trying to make business in the digital arena. So, the digital distributors, and the companies who want to make business online with digital content. When they have this pan-European scope, they claim they struggle to get the rights that are necessary to exploit the rights and to sell the online music, for instance, across Europe in different markets.

KENNEALLY: So for the American audience, Victoriano, it would be as if somebody in Massachusetts couldn’t get the rights to some content that was available from a site in California.

COLODRÓN: Yes, more or less, or it’s as if they would need to talk to different collective licensing organizations to be able to broadcast the music in different states in the States. And that is the case in Europe, where these companies that want to serve the whole European market, they need to talk to different rightholders’ associations, or collective management organizations, to have the rights to exploit the content in different countries in Europe.

And so, their claim is that copyright licensing for that purpose is really bothersome for them. It’s really difficult, and they struggle to get consistent pricing, and all of that.

So there seems to be a particular issue in the music industry. What’s interesting is that in the text sector, that organizations already offering multi-territorial licenses, it is the case of RightsDirect, which serves the multinational corporation market in Europe. And there are others trying to do the same. So it’s real interesting how the developments on the market are accompanied by this kind of policy making effort.

KENNEALLY: Well, we’ll watch for some progress there in 2012. I know another area that the European Commission weighed in on earlier in 2011 was around digital libraries, and there are a variety of digital libraries being created or sort of extending the print collection into the digital arena. Tell us about that.

COLODRÓN: Yes, absolutely. Of course, you know and I think our audience will be familiar with the Europeana portal, which is the European portal gathering digital cultural content from – digitized by European libraries, archives, museums, and all of that. And the European Commission is very keen on trying to remove barriers, and to facilitate the digitization of library and archive collections.

So they have identified two issues, and those are orphan works, and out of commerce works. And for orphan works, with this goal of facilitating their digitization by libraries, archives, museums, etc., what they have done the last year is, the European Commission has put forward a proposal for a directive to make it easier for libraries, archives and these organizations to digitize this kind of content.

It’s a bit of a controversial piece of legislation which is not adopted yet, I have to clarify. This has a long way ahead until it’s approved by the European Parliament. It’s a bit controversial, because that proposal of a directive on orphan works says that basically, certain types of organizations, like public libraries, museums, etc., they would be able to make uses of orphan works without any kind of license or permission from rightholders or rightholders’ organizations.

KENNEALLY: Well, that’s, of course, proven very controversial in this country, Victoriano, in the United States. Obviously, that was the intention of the Google Book case settlement, which was, of course, rejected in 2011, and as well, it was the intention of the HathiTrust just last fall, when it began to release some of the materials that had been digitized at the libraries of the University of Michigan and elsewhere, and there’s been a backlash against that. As you mention, this is very controversial in the European arena as well.

What’s the prospects for getting a solution this year? Do you think there’s going to be a vote on this? Is this going to come into play, or is it just going to be a lot more talking for the next 12 months?

COLODRÓN: No, it’s on the agenda. It’s on the agenda. It’s at the top of the agenda now. So, the new presidency of the European Commission – of the European Union, excuse me, this semester, which is Denmark, I think they have this as a priority. Of course, in the framework of the cultural and intellectual property topic.

So, yeah, discussions are going on, and I think we will see something approved this year, I am sure.

KENNEALLY: It will be interesting to see what impact that will have in the US case, so we’ll have to watch that closely as well.

You mentioned out of commerce works, and IFFRO, the organization that we’re both familiar with, the International Federation of Reproduction Rights Organizations. CEDRO, your former employer is a member, as is, of course, Copyright Clearance Center. There was – they attended the announcement of a memorandum of understanding about out of commerce works. Can you briefly tell us what was the import of that particular MOU?

COLODRÓN: Sure. Yeah. As I was explaining earlier, orphan works are not only – are not the only issue that digital libraries face in their attempt to make Europe’s cultural heritage available online. The second main issue is the need to obtain copyright permissions for the online display of out of commerce books.

So, what the Commission did is, they convened this, what they called the stakeholder dialogue, including representatives from the library community, the publishing and the authors community, and also, the collective management organizations in the text sector. And they agreed on a memorandum of understanding last September, where they proposed solutions for the digitization of out of commerce books.

It’s a very interesting document, because it gives room to voluntary licensing agreements that should be negotiated in the country of first publication of the works, between the libraries that want to use the works and the rightholders and their organizations.

And it foresees the need for solutions to situations – I think this is very interesting- to situations where collective management does not represent all the rightholders in the works, in the out of commerce works, that the libraries want to digitize. So, what happens if the collective management organization does not represent the authors or the publishers of some of those works?

So, the memorandum of understanding recognizes that there may be need of legislative backing for these cases in each country.

KENNEALLY: Well, again, what’s interesting about that, I think, Victoriano, is the contrast with the European case and the American one. So far, in America, we’re taking it to the courtroom. Generally speaking, in Europe, it’s being addressed as a matter of government policy, public policy.

COLODRÓN: Yes, well, at the same time – yeah, that’s pretty much true. At the same time, in 2011, we saw a very interesting development in France, where one of the biggest publishing houses, Hachette, and Google signed an agreement. They announced this agreement whereby Google is going to be scanning thousands of out of print books from Hachette.

So, again, legal solutions, but also, you know, agreements between particular stakeholders in the marketplace.

KENNEALLY: Commercial agreements, essentially.

COLODRÓN: Exactly.

KENNEALLY: Well, you mentioned France, and there’s something going on there that I think people in this country might be interested in learning about, and that’s the so-called HADOPI law. And so, I’m going to try to tell people, using my French. You’re quite the master of languages, but if I may, I’m going to indulge my own French.

HADOPI, I suppose one would say is the acronym. It’s Haute Autorité pour la diffusion des œuvres et la protection des droits sur internet, which basically translates as a law promoting the distribution and protection of creative works on the Internet.

And so, with HADOPI, there’s a kind of a three-strikes-you’re-out provision there, and I believe after some extended wait, France is beginning to act on that. Tell us about that.

COLODRÓN: Yes, well, they have been active, if I’m not mistaken, in the last two years. So HADOPI is the name that we give to the law, but also, it’s the name of the body that was created to enforce that law, and fight against online piracy.

So, I think that the new development last year, as far as I know, is that HADOPI, which has – had been active for a couple of years, they now – they’re now looking at expanding their scope. Because so far, what they have been doing in the last couple of years is, they have been trying to fight the illegal sharing of files, copyrighted – files containing copyrighted content over the networks. So, peer to peer and things like that.

And now they’re looking at going beyond that, because they have realized that the nature of piracy, online piracy, is changing, and is not restricted to file sharing over peer to peer networks, that it’s increasingly taking place in download sites and, you know, link farms, and all these kind of new sites.

So HADOPI is clearly looking at being active also on those fronts.

KENNEALLY: Well, it’s a very aggressive response to Internet piracy, and I wondered whether you’re seeing developments around Europe of a similar nature.

COLODRÓN: Well, since I’m talking from Spain, where I live, I have to tell you that the year ended here in Spain with the announcement by the new government that took office in mid-December, they announced – I think it was the 30th of December- they announced the approval of what we call – what was called in Spain the Ley Sinde ), after the Minister of Culture who had fought for that. It’s a Web-blocking – it’s a new Web-blocking regulation.

So, yeah, we’re seeing steps in different countries along those lines. And also, the European Commission itself, they are announcing that they’re going to review the directive on enforcement of intellectual property rights, because they have realized that perhaps some kind of harmonized solution across Europe should be necessary.

KENNEALLY: Right. Well, we are talking right now with Victoriano Colodrón, Executive Director of CCC’s European subsidiary, RightsDirect, looking at the year in copyright 2011 across Europe. And one country stands out, because it really is trying to take a radically new direction in handling all questions around intellectual property, and that would be the United Kingdom, where there was issued a report, the Hargreaves report, for its main author. Can you very briefly tell us the direction that the Hargreaves report is trying to pull the UK?

COLODRÓN: Yes. Definitely, I would say that this report is one of the major developments in the copyright arena in Europe last year. It has – I would say it has an economic drive behind. The UK government commissioned this report to Professor Ian Richard Hargreaves, with a view to see how intellectual property could be modified in the UK in an attempt to pursue economic growth, basically.

So it – this is –

KENNEALLY: Right. I mean, it’s –

COLODRÓN: That’s the context (inaudible).

KENNEALLY: Right. Essentially – exactly. And I think that’s an important point to underscore, Victoriano, is that the government was recognizing that innovation is going to propel growth, and without innovation, they won’t have the economic growth they need.

COLODRÓN: Exactly. So, with that in mind, the report, which was issued in the month of May, made several significant recommendations for the – what they said, they called adaptation of the British copyright environment, to facilitate that innovation and growth.

Among those recommendations, for instance, we have a very interesting one about the creation of a digital copyright exchange, which would be a kind of mechanism to solve inefficiencies in existing licensing procedures. Another recommendation was about looking at exceptions and limitations to make it easier for users in certain restricted areas to make use of copyrighted works.

KENNEALLY: Well, that digital copyright exchange you describe is kind of the dream of many people, not only in the UK, around Europe, of course here in the United States. Where does it stand right now, the Hargreaves report? What’s the next step, and what can we expect to see in 2012?

COLODRÓN: Well, some actions have been taken since May. The British government issued a response to the report in August, basically saying that they would bring forward many of the proposals in the report. And what I can tell now is that in December, consultation was opened by the UK Intellectual Property Office, drawing on the Hargreaves report recommendations. So they are asking for stakeholders to give advice and opinions and views on how to change the UK’s copyright system. That’s one concrete step forward.

And the other thing is that earlier this year, just a few days ago, a call for evidence was launched by the same organization as part of the feasibility study that has been conducted on the development of the digital copyright exchange.

So, there is one person who has been appointed to develop that feasibility study, and – well, they’re going to see whether such a mechanism can be built at all, because it’s a very challenging endeavor, I would say.

KENNEALLY: Absolutely. But you know, it’s fascinating to me to hear all of what’s going on around Europe. We’ve been talking today with Victoriano Colodrón, who is the Executive Director of CCC’s European subsidiary, RightsDirect. And given everything else we know about what’s going on in Europe right now, the troubles with the euro and various governments under fire for all sorts of things, it’s nevertheless – I think we’re seeing a lot of forward movement on the European level, and at the national level, as you mentioned in Great Britain, France and Spain.

So it’s very important for people in publishing and otherwise concerned about the direction for intellectual property rights around the world to keep an eye on it, and we really appreciate your helping us with that, Victoriano. Thanks so much for joining us today.

COLODRÓN: It was a pleasure. Thank you.

KENNEALLY: We look forward to having you back. We look forward to your continuing contributions to Beyond the Book, there from Madrid and RightsDirect. We’ll tell people that Beyond the Book is produced by Copyright Clearance Center, a global rights broker for the world’s most sought after materials, including millions of books and e-books, journals, newspapers, magazines and blogs. You can follow Beyond the Book on Twitter, like Beyond the Book on Facebook, and subscribe to the re-podcast series on iTunes, or at our website, Copyright.com/beyondthebook.

Our engineer is Jeremy Brieske of Burst Marketing. My name is Christopher Kenneally. For all of us at Copyright Clearance Center, and from RightsDirect as well, thanks for listening to Beyond the Book.