Licenses for Europe update: discussing UGC on rights-holders terms

As a consequence the discussion that followed the presentations was largely circular with various stakeholders stating their positions with regards to what they perceive as the problem at stake (which differs quite widely: depending on who you listen to this can be anything from censorship of free speech, suppression of artistic creativity, piracy, the lack of sustainable business models for journalists or even 'cybersecurity').

There was however one moment in the discussion that clearly illustrated the overall problem with the setup of this stakeholder dialogue: the representative of a large entertainment company reacted to an earlier intervention by a representative from a small NGO (I can't be more specific in the descriptions since the discussions take place under the chatham house rule). He complained that the previous speaker was being imprecise in his terminology mixing up the concepts of 'fair use' and 'limitations and exceptions' and generally not being up to his professional standards. He also implied that therefore the positions advocated by the previous speakers lacked credibility and substance.

This interaction between the two pretty much captures everything that is wrong with the setup of the discussion. While the topic of the discussion is so-called 'user generated content' the stakeholders participating in the discussion are overwhelmingly professional lobbyists with expensive law degrees who are fluent in the complex terminology of copyright law. Out of the 60 or so participants of last weeks meeting there were no more than 5 that can credibly claim not to represent the commercial interests of rights holders and/or commercial intermediaries from the entertainment and telecommunications industries.

What this means is that this stakeholder dialogue is discussing 'User generated content' without any meaningful representations from users (especially after BEUC the European Consumers association stepped out of the process two weeks ago) which is obviously quite problematic in terms of the legitimacy of the whole exercise.

The dominance of the lawyers/lobbyists in the discussion also leads to blind spots. In the exchange described above the representative of the entertainment industry objected to the use of the term 'fair use' because according to him there is no such thing as fair use in Europe. While true from a strictly legal point of view (the fair use doctrine originates from the US and does not exist within the European legal system) it is rather shortsighted to dismiss the term right away:

For practically any non-lawyer the term ‘fair use’ perfectly captures how copyright in the 21st century ought to work: in general, copyright requires that rights holders give permission for uses of their works by others, but there are also uses that don't require such permission because they are ‘fair’ (as in: they do not harm the rights holder). The topic of user generated content is a prime example for this. Using popular music as a background track for a self-made video will be seen as ‘fair’ by many users while uploading complete movies to a video hosting website probably is not.

As long as the majority of the participants in the working group fails to notice that there are other ethical standards than the law they will be incapable of making any real progress. But maybe that is exactly what they want to happen in the first place…

Paul Keller