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net.wars: One ring to rule them all

The heat of the discussions of file-sharing – which a little too often are boiling down to "it's evil" versus "no, it isn't" – tend to obscure the fact that there are very real decisions to be made about the future of copyright. On Monday, there was a Intellectual Property Office to consider these kinds of questions. How best, asked the European Commission paper (PDF) the meeting was convened to discuss, can a single market for creative content online be created?

It was an interesting group – a couple of us sent (as advisory council members) by the Open Rights Group alongside representatives of the collection society PPL, Consumer Focus, several from the IPO itself, and six or seven more whose affiliations I didn't catch. We hear a lot about the smoke-filled rooms in which policy is formed; I can say no one was smoking, but have no idea how much influence the discussion will have on policy. However, the IPO is accepting comments on the paper until January 5

One of the key themes that kept resurfacing is the fundamental mismatch between the way intellectual property law is devised and rights are exercised one one hand, and the way digital data behaves on the other.

Laws and business models are national; digital data is everywhere.

Usually, thinking about that mismatch ushers in a discussion of "evil" file-sharers, but on this occasion the questions were more to do with how to create a framework that would enable commercial services to function across all of Europe.

It says something about the extreme difficulties now posed by copyright law even for professionals that part of the discussion revolved around the acknowledged desire of new businesses to be able clear all the rights for a particular work in one go.

Even something as apparently simple as a single recorded song may have a whole bundle of rights holders: the songwriter/composer, arranger, performer, and broadcaster.

Music already has centralized clearing for mechanical licenses and standard rates across Europe and there is something similar for satellite broadcasting (PPT). The pending European Court of Justice ruling in the CISAC case, however, is expected to determine the availability of pan-European licences.

But such agreement is a rarity: another common theme was the wide variation across Europe. In Germany, for example, creators cannot legally be required to waive their moral rights; in most other EU countries (including the UK), they can. A work may be orphaned in one territory but not in another. In five EU countries (one of which is the UK) there is no private copying levy; in Germany such levies are being applied to larger and larger classes of hardware.

This huge thicket of cross-border disharmonies and conflicts poses serious difficulties in deciding the way forward: no matter what you do, someone is going to lose something.

New business models sound like a great idea, but if the idea is to bundle up large amounts of content for greatly reduced license fees, are we creating these new businesses at the expense of artists and creators? Of course, if you follow that argument to its logical conclusion you would never do anything at all.

The IPO's view seems to be that you make the best decisions you can and then solve the problems they raise as needed. Which is fine, as long as the problems you create don't all disadvantage the same group of people. At the moment, artists and creators are being squeezed from all sides, and the public seems to be the least represented in the decisions that eventually get made.

The PPL's representative argued that one barrier to a competitive market was competition law, intended to prevent cartels from forming, that blocks the four major record companies from talking jointly to ISPs. Instead, all four have the same conversations with the ISPs.

But all of this was leading up the day's key question: is it a good or bad thing to bring in a single, Europe-wide copyright? On the pro side, for rights holders, such an arrangement would eliminate forum-shopping and leveraging competing legal systems. For artists and new businesses, it would lead, hopefully, to a much simpler regime for clearing rights and paying licensing fees.

On the other hand: it would wipe away the traditional business models and notions of artistic control, all of which rely, as already noted, on parceling up rights according to national boundaries (as well as types of usage).

It would also remove control at the national government level: the arguments now taking place over the powers conferred by the Digital Economy Bill, for example, would very likely be happening at EU level. Are artists and creators likely to be better served by copyright law that's created in such a centralized way?

It's not clear to me that the answer to that is yes; it seems more likely that today's grass-roots lobbying would become much harder. The EU government is structurally arcane and difficult to penetrate, even though it's true that anti-software patent campaigners had some success

But overall and in general harmonization has not been kind to public access rights because typically "harmonization" has meant adopting the most restrictive of the existing regimes.