When a technology proves disruptive and ubiquitous enough to power networks that attract 2.2 billion users – one third of the world’s population – daily, is it reasonable to pretend that nothing is happening and to support status quo?

A variety of regulatory props have been designed to nurture creativity over the last five centuries. Legislation on copyright is one of them. Not surprisingly, the picture looks patchy at best to whoever embarks on assessing how the many items of this basic construct have weathered the tidal wave of the digital era. In the case of the compensation for damage possibly caused by private copying, this picture is definitely pitch-dark: systems currently enforced across Europe are deeply flawed. Acknowledging this fact, Commissioner Barnier has asked Mr Antonio Vitorino to recommend a fix. Digital Europe is keen to contribute to this major endeavour and aware that a sustainable solution can only originate in a wide consultation. Accordingly, we have suggested that a public debate be opened urgently on alternatives to private copying levies in order to leave no stone unturned. As matter-of-fact and sensible this invitation might look, it managed to wrong-foot some rights holders.

Tunnel vision

Instead of rising to the challenge of discussing openly the many options worth contemplating, five “creators’ organisations active on this dossier” singled out our proposal on State budget, only to dismiss it summarily as “difficult to justify”. DIGITALEUROPE had suggested a thorough and transparent debate with all stakeholders because none of them taken individually can grasp all the parameters of this multi-faceted, fast-changing issue. Only by confronting the whole gamut of perspectives will the light be found, our admittedly candid reasoning went. The exception taken to public funds by the “gang of five” may betray their fear that governments made cautious by “a time of austerity and unemployment” would borrow a leaf or two from the relevant Recitals of the 2001 Copyright Directive and from more recent CJEU case law. In turn, this closer scrutiny may well peg compensation to the harm actually done by private copying to the rights holders concerned and drive the hundreds of millions resulting from the unilateral and brutal application of a self-serving “rule of thumb” down into single-digit territory. A dire perspective indeed…

An exclusive approach

More worryingly yet, the same myopia that led these organizations to shy away from an open-ended debate on the ground that they feel uneasy with one particular proposal makes them see culture as created by and intended for the happy few. Should it belong to all, tax payers would be naturals for supporting the preservation and enhancement of their regional or national legacy. It defies logic instead to put the onus on importers and manufacturers of the devices that give access to the most popular forms of culture. A deep-rooted, time-honoured tradition of our democracies endows parliaments with the prerogative to vote budget by way of a contradictory debate that secures transparency. Expanding this process to include private copying levies could generate the “disaster” dreaded by the gang of five: the massive returns ensured so far by the tightly-knit circles in control may shrink into a mere trickle. Democracy proves uncomfortably disruptive at times…

Illustrious sources misquoted

Beyond the exception for private copying, it looks intriguing that “creators still struggle to make themselves heard” – as argued by Europolitics on 17 October – at a time when digital technology enables artists to enjoy direct, instant engagement with their followers. Perhaps these unsung creators fall victim to their overwhelming concern to qualify for subsidies, like those 18th century playwrights obsessed with the King’s patronage and mocked by Molière in “La Critique de l’Ecole des Femmes”: “If playing by the rules is a sure prescription to making a flop, if ignoring the rules may result in smash hits, then the rules must be flawed”. Indeed the litmus test afforded by the internet is more ruthless than any of those available in the 18th century to gauge the public’s taste for works of art: only quality content will pass muster; other production, however much subsidized, will not.

Another luminary from the birthplace of the cultural exception, Pierre Caron de Beaumarchais, shares the dubious privilege of being regularly misquoted. He is rightly hailed as the chief crusader of “droit d’auteur” for setting up in 1777 the “Société des Auteurs Dramatiques” whose remote successor will still convene in the shade of his bust to devise the many steps that foster the cultural exception. Yet, Beaumarchais was also the staunch supporter of freedom of expression who helped the US insurgents give birth to a new nation. His foresight and boldness were not lost to the figureheads of the internet addressed in May 2011 by then French president Sarkozy kicking off the eG8 forum: “This man is your kin: starting from scratch and with intelligence as only baggage, he turned upside down an order thought to be immovable and perennial”.

Digital technology spells the beginning of a new era

Commissioner for Research, Innovation and Science, Máire Geoghegan-Quinn said on October 26: “Media and content industries are innovative and of great social and economic importance for Europe. Managing and reacting to the challenges of globalisation and the digital shift will be key, and that means new business models that turn these challenges into opportunities. This [JRC] report provides a valuable insight both for the industries and policy makers and will help us shape the right answers together”.

The shift to digital thus portrayed as a game-changer echoes a vision shared on November 5, 2010 by Vice President Kroes: “Today our fragmented copyright system is ill-adapted to the real essence of art, which has no frontiers. Instead, that system has ended up giving a more prominent role to intermediaries than to artists. It irritates the public who often cannot access what artists want to offer and leaves a vacuum which is served by illegal content, depriving the artists of their well-deserved remuneration.” Interestingly, Ms Kroes made this most perceptive statement on addressing a conference held in Avignon, France, i.e. in cultural exception territory.

Digital technology contributes more to cultural diversity than the eponymous exception

Proper reference to timeless luminaries of world culture and to current policy makers with a vision helps set in the right perspective the “current efforts to set up a coalition of countries supporting the cultural exception” as reported by Europolitics following the “Rencontres cinématographiques de Dijon”. Actually who needs these crutches to cultural diversity arbitrarily allocated by governments made immune to rule-based trade now that the internet affords everybody an opportunity to create online and to check instantly if there is a public for their production? However inconvenient this truth might sound to supporters of administered culture, bold, open minds ready to engage with their followers wherever they might be have been spearheading creation from the dawn of mankind. They stand for genuine creativity as opposed to the strand claimed by creators’ organizations: in digital times, the former hardly needs the latter to send millions into rapture.

The very future of Europe’s diverse creativity and of its ability to innovate is at stake. Therefore the call of the European ICT industry for an open debate on alternatives to private copying levies must be heard by the EU institutions. Equally critical is the involvement of consumers in this debate: as recognized early on by true creators of sterling value such as Molière or Beaumarchais, the public is the ultimate arbiter of creation that stands the test of unrestricted space and time.

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