back to article El Reg eyes up Article 13 draft leak: Will new Euro law give Silicon Valley more power? Some lawyers think so

The EU's copyright reform is being watched globally as an experiment in taming Big Tech – but fears grow that it may make Silicon Valley even stronger. The Register has seen a draft law dated 4 February that gives some credence to this. For those who've not been following, Article 13 of the EU Directive on Copyright in the …

  1. Ledswinger Silver badge
    Thumb Down

    "two parallel liability regimes"

    Ah yes. Most of Europe has already pioneered that with tax laws.

    Big Tech: Do what you want boys, no tax bill.

    Small tech, contractors, SMEs, regular corporations: We're taking you to the cleaners.

  2. Duncan Macdonald Silver badge

    Why bother

    If the directive goes ahead, the net effect will be to transfer money from Google etc to UMG etc. Do not expect the money to reach the performers - it will just go from one set of shareholders to another set of shareholders.

    Andrew is of course in favor of the directive being as harsh as possible as he seems to hate Google. (What was the last time that he praised anything that Google did?)

    1. Dan 55 Silver badge

      Re: Why bother

      Has Google done anything praiseworthy recently? Or over, say, the last decade?

      1. Duncan Macdonald Silver badge

        Re: Why bother

        Yes - it has produced very worthwhile maps and street view and also google earth. It is by far the best search site for most searches. YouTube is also very useful as a background music application as well as a source number of original videos (eg the videos on lock picking by bosnianbill).

        I agree that it enables a lot of advertising (NoScript and AdBlockPlus tames this fairly well) but it does at least give some value for its advertising.

        1. Dan 55 Silver badge

          Re: Why bother

          Maps, Earth, and YouTube were all developed by other companies and then bought by Google, all more than a decade ago. StreetView was a project at Stanford Uni sponsored by Google, but over a decade ago.

          If they have done something useful in the last decade you'll probably find it's been knocked on the head and sent to the Google graveyard (Google Code), or there are plans to knock it on the head soon (Google+).

          Google lost its mojo a long time ago, it's just an advertising company playing it safe and slurping your data.

          (I didn't downvote BTW.)

        2. LDS Silver badge

          "YouTube is also very useful as a background music application"

          And where that music comes from? Were rights holders paid the right? Or your own satisfaction trumps every other people right? What about if a lock-picker starts to use your house for free? <G>

          And what it gives are just baits for its ads - even better if it has an army of "users" uploading that baits so Google is not liable and has to spend nothing.

  3. This post has been deleted by its author

  4. whitepines Bronze badge
    Mushroom

    Oh wonderful. A battle between two types of organization that, in the immortal words of Mark Twain, one wishes would both drown together* -- copyright "rightsholders" (note these are almost never the actual artists) which are busy strangling artistic freedom and all types of fair use, and then the Silicon Valley above-all-laws types busy strangling every other type of freedom including privacy.

    How about making things real simple: Strict copyright liability for everyone no matter how small or large, but in turn copyright is limited back to a more reasonable 14 years, and DRM is explicitly allowed to be broken on out of copyright works. Either finish the job** and make artists turn to a copyleft / prepay model, or make copyright sane for once. Multiple generations required to *die* before any works fall into the public domain and can even be preserved (and now with DRM permanent effective copyright and instant at-a-single-request book burning and censorship) is just asking for a citizen revolt on many levels.

    Or maybe just the expedient of preventing sale or effective transfer of copyright to a third party. Things might be a bit different if each and every artist involved in, say, a movie could license the resultant work independently with a proportional cut of the proceeds going to the other named authors. Right now we have Disney controlling most artistic audiovisual works *and* the people allowed to create them -- people would do well to remember tyranny can come from both from out of control government *and* out of control effective monopolies (e.g. company scrip, worker abuse w/ debtor prison, etc.).

    Note that I say this as someone who's livelihood depends on IP protections. It's that far out of control. When piracy becomes the lower moral hazard in comparison to ideas and works being permanently locked into a cloud rental / third party beg for permission model, I end up losing the protections I need to retain any income from sale of IP "protected" works. A lower term copyright that fits into people's innate internal morality is a much better and safer idea for all parties involved....Disney can't actually sue every single person on the planet even if they think they could.

    * "But the reader of the Deerslayer tale dislikes the good people in it, is indifferent to the others, and wishes they would all get drowned together.”

    ― Mark Twain, Fenimore Cooper's Literary Offences

    ** Where copyright itself is as Mr. Bunbury: "I think it is high time that Mr. Bunbury made up his mind whether he was going to live or to die. This shilly-shallying with the question is absurd."

    ― Oscar Wilde, The Importance of Being Earnest

    1. John Brown (no body) Silver badge

      "...and DRM is explicitly allowed to be broken on out of copyright works.",

      This brings to mind a point I made when DRM first started doing the rounds and again when laws were brought in making it illegal to "hack" or reverse-engineer the encryption. What happens to a copyrighted work when the copyright expires but the only copies available are DRMed? Does the law allow for "cracking" DRM on a work with an expired copyright or was that scenario never envisaged by the lawmakers?

      No doubt the copyright holder will have a non-DRMed version of the work, but they are under no obligation to release that once the copyright expires. They can just keep selling the DRMed version.

    2. Carpet Deal 'em
      Flame

      I'd say the copyright period could be a bit longer(40 years sounds about right), but it definitely needs to be fixed. None of this "life of the author" nonsense - as it is, somebody who published young and lived long enough could have his copyrights last multiple centuries.

      Frankly, we just need to tear copyright down and rebuild it from first principles.

      1. whitepines Bronze badge

        With the current implementation of copyright I'm more of the opinion that even 14 years is too long. There's a definite trend toward requiring people to individually ask the rights holder for permission to view a work each and every time (for movies this is uniformly the case, especially with streaming and "digital downloads", but even Blu-ray is problematic). Either that gets fixed (including explicitly allowing breaking DRM for any legal reason including format shifting and resale of a work) or really I'd suggest a 5 year or less "exclusive marketing period" to replace all of copyright as it stands today.

        Or we can all stick our heads in the sand and either 1.) commit mass civil disobedience through "piracy" (granted this does seem to be happening already) or 2.) tear down the entire old system by embracing copyleft works only (there's a minority doing this as well). I'd think changing the law is preferable given those two outcomes, especially as the latter will lead to a lot of real life starving artists...

        Bootnote: There was a German study that concluded copyright is beneficial up to around 20 years and definitely harmful after that. It should be required reading for incoming lawmakers in all Western nations. I don't think it factored in DRM and streaming though; those "innovations" likely shorten the beneficial period even further.

        1. MacroRodent Silver badge

          Study relegated to the X-files?

          Bootnote: There was a German study that concluded copyright is beneficial up to around 20 years and definitely harmful after that.

          Interesting. Never heard about that. Probably suppressed efficiently by the copyright industry...

          1. whitepines Bronze badge

            Re: Study relegated to the X-files?

            I'm a bit embarrassed to admit I don't seem to have saved the original, and trying to dig it up has been nearly impossible. I did however run across a (very hard to locate) statistical analysis with much the same recommendation, though in that case decay modelling predicted an optimal copyright duration of just 15 years:

            https://rufuspollock.org/papers/optimal_copyright_term.pdf

            Funny how I got such a close number (14 years) just from a quick mental review of decay of interest in movies / reasonable time to wait to view the movie outside of a theatre or streaming rental service.

            In any case, copyright is way out of control even compared to patents and other forms of IP -- why else do we see people putting so much effort into copyleft and making nothing, if not even going in the red financially, to create that copylefted content. The end of permanent, generational copyright is coming one way or another; will be "interesting" to see which path is taken (reign it back in or replace it entirely with copyleft works) and how ugly things have to get (complete loss / rewriting of cultural history? mass arrests?) before we reach that point.

            1. LDS Silver badge
              Facepalm

              "rufuspollock.org"

              "Rufus Pollock is an entrepreneur, researcher and technologist working to create an open information age"

              It looks to me the report could be easily biased....

              1. whitepines Bronze badge

                Re: "rufuspollock.org"

                OK, try this one. From the EU, as an officially commissioned study*. Conclusion? Piracy has no real effect on revenue, or a possible positive effect, for the studied categories. In particular these gems:

                For no DRM:

                "For music, recent literature found generally small positive or negative effects of illegal online transactions, and the estimates of this study are in line with this."

                For DRMed formats that are relatively difficult or expensive to consume legally (movies):

                "the negative effects in the analysis of this chapter have large error margins." They proceed to basically discount the negative results on that basis.

                The study goes on to show that willingness to pay is not as much a factor of the content itself as ease of consumption (download speeds, etc.). I can anecdotally confirm this -- I'd only be willing to pay *maybe* €0.25 for a single viewing (whether that's a stream or remote unlocked physical media) of a really good movie at home, €0.01 for a mediocre remix "popcorn" one, and that's with a group as a social activity (so total fee / people in group). €20 or more for a DRMed copy that is illegal to format shift, remix, or view on custom A/V equipment is completely outside of my willingness to pay, full stop. (For those that think I'm just trying to leech off those poor starving execs at Disney, bear in mind my willingness to pay for a 4k non-DRMed, standards compliant, resaleable, watermarked copy of a good film would be in the €100-€200 range as all the sudden one actually owns something "real" and can start building an actual collection of art).

                Oh, one last thing. If we were just allowed to enjoy our legally bought content in peace in private however we wanted to (e.g. if DRM wasn't enshrined above fair dealing etc.) then I wouldn't care much about the duration of copyright. But, since DRM is so important (mining data on what is watched when, pushing ads, rent seeking on old works instead of creating new ones, etc.) then we have to start looking at tearing down or bypassing copyright. If that means promoting amd using copyleft works instead (since copyright, on which copyleft is based, will never be reformed it seems) then so be it.

                * https://juliareda.eu/wp-content/uploads/2017/09/displacement_study.pdf

        2. John Brown (no body) Silver badge

          "Bootnote: There was a German study that concluded copyright is beneficial up to around 20 years and definitely harmful after that. It should be required reading for incoming lawmakers in all Western nations. I don't think it factored in DRM and streaming though; those "innovations" likely shorten the beneficial period even further."

          That's interesting because when copyright lengths were "harmonised" across the EU 20 or so years ago, the various lengths were not averaged out as you might expect. They were all increased to match which country had the longest copyright periods. It was Germany who had those longer copyright periods which meant that in many EU countries, works which had fallen out of copyright were suddenly back in copyright again. We were actually working on a project involving the use of out of copyright works so had to look very, very closely at the new rules. The only exception was already running projects had one year to get published under the old rules so we had to accelerate the project.

      2. John Lilburne Silver badge

        Most works are ephemeral and have no economic value well before copyright expires. Few publishers are gagging to be able to reprint most of the books from the 1920s. Not many are wanting to re-release many of the recordings of the 30s or 40s. Most of the films haven't weather the years well either. OTOH a number of the works that people want to consume they didn't at the time they were first published. Sometimes it takes years before a published work becomes popular, in other cases it takes years before technology reaches a point where the work can be adequately performed (LOTR being a prime example).

        Suppose an author dies the day after a work is published, why should the authors heirs have the same expectation of inheriting the copyright as those of an author that dies 50 years after publication.

        1. Grikath Silver badge

          Sharks

          "Few publishers are gagging to be able to reprint most of the books from the 1920s. Not many are wanting to re-release many of the recordings of the 30s or 40s. Most of the films haven't weather the years well either."

          You're looking at it the wrong way... Want to make a movie/derivative work of a book/short/novella from the 1920's? Cough up, we have the rights ad perpetuam.... Want to use that catchy 40's tune in a movie, or do a cover as a band? Cough up, we have the rights ad perpetuam. Want to make a reboot/remake of a classic movie? Cough up, we have the rights ad perpetuam.

          It's not re-printing/issuing the rights holders are interested in. They are waiting for someone else to go through the hassle after sometimes more than a century, then send in the Lawyers.

    3. LDS Silver badge

      "note these are almost never the actual artists"

      Please, back your assertion with facts and references.... what may be true for movies, may not be true for many other forms of art.

      I also hope you routinely work for free and don't expect to be paid for your efforts.... probably both Twain and Wilde would have given up writing if they didn't make money out of it. They were lucky internet hoarders were yet to come.

      1. Voyna i Mor Silver badge

        Re: "note these are almost never the actual artists"

        A very small number of creative people - Clemens, Rowling, for instance - make a lot of money from their work. Most of them do not. Most published novelists make a lot less than minimum wage.

        And show business lawyers are well known for having fewer ethics than ethically challenged primaeval slime when it comes to contracts, at the bidding of the studios. Many performers in reality would be better off working a zero hours contract at Tesco.

        The industry is able to exploit them because they will do the work even if they earn nothing. In fact when it comes to classical music, the musicians usually have to pay to perform.

        1. LDS Silver badge

          "In fact when it comes to classical music, the musicians usually have to pay to perform"

          At La Scala theatre in Milan, a musician gets between 73,000 and 118,000 euro. It is true this is a top theatre hiring top performers, and in others you may earn less. They can earn additional money as teachers and if performing elsewhere when allowed.

          Evidently these are jobs when you have no warranty of success - and sure, there are many who earn little and have to work somewhere else until they become successful. But that's a reason more to protect the rights and earnings of less-known, less-lucky artists who don't make millions easily.

          The fact that the entertainment industry is as exploiting as Google & C. is not an excuse to remove even more rights from creators, and ensure they get even less money for their works.

          Also copyrights extend far beyond the movie/music industries, there are reporters, designers, cartoonists, photographers, etc, all of them usually not making the big money an actor or singer could make - their earnings could be made by smaller but steady payments for the use of their works. Take them away, and the risk is to run into the ground a lot of people.

      2. Anonymous Coward
        Anonymous Coward

        Re: "note these are almost never the actual artists"

        >I also hope you routinely work for free and don't expect to be paid for your efforts.... probably both Twain and Wilde would have given up writing if they didn't make money out of it.

        Scientists and engineers make a healthy living out of 20 year patents, copyright should be the same i.e. 20 years or do you advocate the same degree of length for patents because at the current level of copyright extensions we may see the wheel come off patent by 2207.

        1. LDS Silver badge

          "Scientists and engineers make a healthy living out of 20 year patents"

          There's a big difference - which is that creating whole new works based on a patent is far more difficult and expensive than simply copying someone else's work and distributing it to make money - especially today where digital copies made copying and distribution costs close to zero. Evidently, in amanuenses times, copyright was a far smaller issue.

          Also, as explained elsewhere, some make millions in a few years (even months) from a work, other could make little over a far longer period of time. Shortening copyright length will greatly favor the former at the expense of the latter - which are usually those making far less money.

          I wonder how many talking about what copyright should be actually created at least once in their lives something that has value for others, and how many just hoarded other people creations without ever creating anything.

          Because it is far easier to tell others should have no rights when yours are not impacted...

          BTW: you know, for example, what could happen if the Linux kernel copyright expires? <G>

          1. Anonymous Coward
            Anonymous Coward

            Re: "Scientists and engineers make a healthy living out of 20 year patents"

            >BTW: you know, for example, what could happen if the Linux kernel copyright expires? <G>

            Personally I think it's absurd to copyright code, it's a technical solution to a technical problem, it's most certainly not Nicholas Nickleby and it's even more absurd to be death +70 years for code.

            >I wonder how many talking about what copyright should be actually created at least once in their lives something that has value for others, and how many just hoarded other people creations without ever creating anything.

            Chances are someone else already created it, after all someone else created language long before you did or took a photograph, wrote a story etc. How many of Harry Potter's ideas were lifted from previous works ?

            Old saying, monkey see, monkey do. Copying is built into our DNA, literally.

            1. LDS Silver badge

              "Personally I think it's absurd to copyright code"

              Still, licenses like the GPL can exist only because of copyright - otherwise they would become not enforceable. As most copyright haters are also open-source supporters (because they get more stuff for free, mostly), and especially of Linux and its GPL license, it becomes quite funny and surreal.

              Anyway, most works are created taking inspiration from previous ones. Virgil's Aeneid is obviously inspired by Homer's Odyssey, and we could trace many plots still used today to Gilgamesh. It's called a "topos".

              I don't remember what painter said that a white canvas is not empty - because when your start painting your mind is already full of previous images you have seen or made. In some ways, it makes the creative process even more difficult as being original becomes increasingly difficult.

              What matter for copyright is how much is original content, and how much is just plainly copied. There's a big difference between inspiration and copying. Something creators understand, plagiarists and hoarders don't.

              1. Anonymous Coward
                Anonymous Coward

                Re: "Personally I think it's absurd to copyright code"

                >Something creators understand, plagiarists and hoarders don't.

                I'm glad you mention hoarders because that's exactly what is going on with copyright as the rights to a majority of works are being held by a few huge multinational media companies who are bashing us with copyright to maintain the perpetual monopoly, revenue stream and vastly inflated prices; this is something the very sensible 20 year patent endeavours to avoid.

                1. whitepines Bronze badge
                  Pint

                  Re: " the rights to a majority of works are being held by a few huge multinational media companies"

                  Epic trollback, moreso because it's what's been bothering me about Disney but couldn't quite put my finger on it. Have a (virtual) pint on me!

      3. This post has been deleted by its author

      4. whitepines Bronze badge

        Re: " also hope you routinely work for free and don't expect to be paid for your efforts"

        Yeah, I do. And the reason for it is copyright. Specifically I have to re-do solutions that were made unacceptable by the DRM, lock-in, IP theft, data slurp, and legal problems that come with just *using* copyrighted software (e.g. Windows 10). I have to do this instead of purchasing something that just works, depriving the author and myself both of revenue, because of the insane licensing terms that come with the copyrighted software.

        Either we decouple DRM from copyright, strengthen fair dealing to include modifying copyrighted software to remove objectionable bits, or both copyright and its associated DRM will go down together...eventually.

  5. The Central Scrutinizer

    It's even worse....

    https://www.techdirt.com/articles/20190205/09342741530/eu-copyright-directive-has-been-made-even-more-stupid-some-are-still-trying-to-make-it-even-worse.shtml

  6. John Smith 19 Gold badge
    Unhappy

    Copyright's a good idea *if* it's easily enforcable by individuals

    Then it can create more independence for creators.

    As for this BS about copyright for 70+ years.

    Stop Disney f**king up the legislative process.

    For them it's all about the rat.

    1. Steve Davies 3 Silver badge

      Re: Copyright's a good idea *if* it's easily enforcable by individuals

      For them it's all about the rat.

      When was the last time Disney released a new work featuring said dead rat?

      When was it eh? 20+ years ago?

      cue tumbleweed blowing across DisneyLands the world over.

      No matter, I never saw the point of MM. Now Tom and Jerry were a different matter entirely.

      1. LDS Silver badge

        "When was the last time Disney released a new work featuring said dead rat?"

        Actually, in many places outside US - i.e. Italy - Disney publishes weekly comics with new stories featuring Mickey Mouse.

      2. Killfalcon Bronze badge

        "When was the last time Disney released a new work featuring said dead rat?"

        Last week, co-published with Square Enix.

        No, seriously.

    2. John Lilburne Silver badge

      Re: Copyright's a good idea *if* it's easily enforcable by individuals

      You do know that Disney had nothing to do with the US copyright extension don't you? That came about to bring the US into line with other countries and had nothing to do with Disney at all, rather it was that the USA wanted international protection for the works of its creators and to do so they needed to adopt the Berne Treaty.

      OK so Disney was part of the lobbying for ratification of the Berne Treaty and they did make some donations to political campaigns around that time. The maximum they gave was $6,000 to Trent Lott, the average was $1,000. Now hands up all those that think that US politicians can be bought for $1K.

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