January 22, 2001
Lobbyists Ready for Assault
On EU's Copyright Directive
By BRANDON MITCHENER
Staff Reporter of THE WALL STREET JOURNAL
BRUSSELS -- Enrico Boselli is steeling himself for a showdown.
When the European Parliament's Legal Affairs Committee meets Wednesday,
armies of lobbyists from music companies, film companies, consumer
electronics companies, broadcasters, publishers, blank CD and tape makers
and telephone companies will descend on Mr. Boselli with one thought: Pepper
the European Union's draft Copyright Directive with amendments before it is
set in stone.
Mr. Boselli, for his part, is hoping to hold his ground on the law, which
aims to protect European musicians, directors and publishers from piracy in
the Digital Age. "Better a law that doesn't please everyone than not have
any protection for years to come" for lack of pragmatism, said the Italian
Social Democrat, who is the Parliament's rapporteur for the directive.
Already three years in the works, the Copyright Directive is the
most-lobbied piece of legislation ever to work its way through the
labyrinthine regulatory corridors of Brussels. Setting out for the first
time the rights of everyone who wants to create, produce, sell, transmit or
use something protected by copyright in a digital
environment, the law will touch the lives of every citizen and business
inside the 15-nation EU -- and millions outside it. And its imminent
discussion in the European Parliament, the next-to-last step to passage, is
whipping up an almost religious fervor among many of those whom it seeks to
Fear of Loopholes
For music, publishing and film companies who have camped outside Mr.
Boselli's office, the law is about protecting them and their works from
pirates and the likes of Napster. They fear the directive could create
loopholes to legalize widespread copying and "sharing" of digital music and
images over the Internet. "It's hard to develop a legitimate market if you
have a huge illegitimate market that's free for all," says Olivia Regnier,
legal adviser to the International Federation
Of Phonographic Industries in Brussels.
But many broadcasters, consumers and electronics companies see IFPI's
last-minute demands for changes in the law as a power grab that threatens
the legitimate rights of citizens and businesses alike. "[Rightsholders]
want to decide how, when and which phonograph we
should broadcast," grouses Heijo Ruijsenaars, a legal adviser to the
European Broadcasting Union, which represents EU public service
"It's all about control," agrees Thomas Vinje, an American copyright lawyer
whose client list includes eMusic, Sun Microsystems Inc. and Nokia.
The original idea of the Copyright Directive was simple, and not even
terribly controversial: Extend the protection that "rightsholders" enjoy in
the analog environment to new, digital media such as the Internet, digital
television, cellular phones and other personal
digital devices. The U.S. passed such a law, the Digital Millennium
Copyright Act, in 1998, giving its creative industry a competitive advantage
over nations that don't provide their artists such protections.
Both laws represent a desperate attempt to keep up with technology. Whereas
analog copies of music, films and other works by means of cassettes,
photocopies or broadcast suffered a gradual deterioration of quality, a
digital copy is usually identical to the original, posing a
potential threat to any creative industry. "Private copying in the digital
age is cloning," says Frances Moore, European affairs director for IFPI.
"We'd like to have gotten rid of private copying in the digital age."
They didn't win that argument, however, because governments, consumer groups
and others saw lots of legitimate reasons people should be allowed to make
copies of something they had purchased, digital or otherwise. Libraries want
to make backups. Music lovers like to make copies of their favorite songs
for the house, the office and the car. Film buffs want to be able to record
television broadcasts so they can watch them later -- a common practice
known as time-shifting. There are dozens of such practices considered
exceptions to the copyright-holder's right to protection.
Governments did throw creative industries one big bone: the right to protect
their digital creations with encryption technology -- something they
couldn't do before, with analog works. Encryption instructions embedded in a
digital music file, for example, can tell the machine copying it how many
times the file has already been copied and
draw the line when a pre-defined number of copies is reached.
The EU Copyright Directive might additionally draw a distinction between
traditional broadcasts and new, interactive services such as "on-demand"
music and pay-per-view television, allowing rightsholders to put a complete
stop to copies of the latter.
But music producers and others are still arguing over the wording of the
so-called "private copying exception," which means different things to
The draft law would allow a "natural person" to make a copy of protected
material for "private use." Rightsholders say such language is ambiguous,
and could, for example, be construed as permitting one private person to
make a copy of something, give it to
a friend for his or her "private use" and so on, either on a recordable disc
or via a file-sharing system such as Napster.
"Private copying robs the industry of legitimate sales," says Ms. Moore, who
suggests the directive be changed to allow copying "by a person for his or
her private use."
IFPI also wants to require any European government that wants
to tinker with the legislation on a national level to first hold a
debate on the changes. Broadcasters want unrestricted rights to use footage
from their archives. Mr. Vinje wants to erase the distinction between
off-line and online music sales.
Mr. Boselli, a neophyte in EU politics despite two decades of
experience in Italian politics, is trying to limit such changes to
the absolute minimum. He calls the compromise stance adapted
by European governments last year "substantially correct." He
fears that the avalanche of 297 amendments that fluttered into
his office over the past several weeks could force the package into a
time-consuming conciliation process that delays the implementation of the
"The important thing is to get started," he says. "The directive's objective
is to protect the activity of artists in Europe. The U.S. law gives its
industry a degree of legal certainty that Europe doesn't have."
After this week's debate over amendments, the draft directive is scheduled
to be adapted in the Parliament's legal affairs committee a week later and
voted upon in a plenary session of the Parliament in mid-February.
If the directive is approved without major changes, European governments
would rubber-stamp it and ratify it at the national level in the following
If saddled with amendments, the draft would head into a conciliation
committee, delaying the process by two to three months.
Write to Brandon Mitchener at brandon.mitchenerATwsj.com2
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