--- Upon
commencing on Wednesday, October 3, 2007 at 3:14 p.m.
MR. OXLEY: We
are going to go pretty much directly into the next session. It's on Confidence and Competition in the
Internet Economy.
Stream B is just starting right about now, and Hugh
Stevenson, the deputy director of the Office of International Affairs for
Federal Trade is leading a conversation on Confidence, Privacy and Security.
Now, in this room, we have got the luxury of having a
great conversation which sort of follows the user content creation with
Creation, Access and Competition.
The chair of this panel, editor‑in‑chief,
Intellectual Property Watch, William New.
So make your way over to Session B, for those that are
going, and for those that are staying, I turn you over to the lovely hands of
William.
Go ahead.
MR. NEW: Thanks
very much.
I don't see any reason why we shouldn't begin
immediately. For those of you who are
leaving, you may get ensnared in the interest of our panel.
I'm William New.
I'm at Intellectual Property Watch in
We are a new media method. We are a fusion of blog and traditional
journalism model using creative comments licence. I'm happy to talk more about our project in
another forum or after the event.
Let me tell you a little about the panel you have
today. We have a terrific panel. I can't help, because I'm feeling it myself,
to throw out there that if I'm not mistaken, this is a European, and further,
much further, group and I'm sure it must be at least closing in on, I don't
know, 10 or 11 at night for most of them.
For at least one of them, it's already tomorrow. So I hope we will be lively, though, and I
look forward to a lot of participation from the audience. I think we should not let this opportunity go
by.
You know, a topic doesn't really become, it doesn't
really exist, until the OECD holds a conference on it, in my estimation. We need to address the key elements of these
issues, and these issues for this panel are creation, access and
competition. These are three of the core
issues, I think, from a policy standpoint, from a legal standpoint, from a
consumer and user standpoint and from a business standpoint, and it's going to
be very important that we try to hit the key elements of these topics.
During this short time that we have, I plan to ask
each of the speakers with us, I plan to introduce them before they speak and
ask each to speak for about 10 to 12 minutes, after which we will take
questions. We have possibly some
questions coming in on the web, but we will see about that.
The topic of access, creation and competition is
fairly widespread. It definitely
involves intellectual property rights, but access reaches far beyond that, and
competition could be seen as a business issue as much as a consumer issue and
reaching into technologies and beyond intellectual property rights, so you will
have a wide range of ideas being presented to you.
I couldn't help but throw out one or two quick
anecdotes and then I'm going to move on to the real speakers here. Today, actually, was the conclusion of a
world intellectual property organization assembly. One of the issues there was related to copyrights,
and in that committee they are going to address in the coming year possibly new
proposals, new ideas. I think that this
may be a turning point at the international level for a discussion on some of
the new and other ideas that haven't been addressed on the copyright front when
it comes to access to knowledge, and you might be hearing more.
But a film industry representative at that event told
me, he's still there and he's working hard to try to control the use of their
material that's showing up in user‑generated or user‑created
formats, but many of his colleagues are leaving now to join companies or start
companies that are getting involved in mesh‑ups, and this was sort of the
way it's going for him.
The old models seem to be under some stress, but maybe
there's enormous new opportunities for those models. I hope some of those questions come out
today.
And then I couldn't help but paint two other quick
anecdotal images. One was in the old
days I recall that if you made a home movie with famous brands or borrowing
copyrighted material, your only chance of widespread attention there was with
your family, friends and pets, as you showed it on the livingroom wall. But now, of course, you have the opportunity
or the prospect of massive popularity worldwide should it strike the right kind
of cord. Things have changed.
And the other thing I would point out is we are going
to, on this panel, also address the concept of a generation of people for whom
living in an Internet environment, an Internet‑driven world, is their
only reality.
I recall that my six‑year‑old, I was worried
that perhaps he was behind the curve because he didn't' send his first email
until he was almost four and he was already five before he said, before I
didn't know the answer to something, Daddy, why don't we just Google it?
Anyway, I bring your our panel. We are going to begin with a very
distinguished speaker. We have the vice‑minister
of Policy, Coordination at the Ministry of Internal Affairs and Communications
in
Thank you.
MR. MORI:
Thank you, Mr. Chair.
My
name is Kiyoshi Mori, Vice-Minister for Policy Coordination, Ministry of
Internal Affairs and Communications in
It
is my pleasure to be here at the Technology Foresight Forum on the
Participative Web with all of my friends from around the world, friends who are
among the most influential in the ICT field.
I really appreciate the efforts taken by the OCED Secretariat and
Industry
Today
let me just briefly mention the status of and the future issues facing the
participative web in
Also,
as shown by the graph at the bottom, the mobile phone use, specifically
high-speed Internet use by 3G, that means IMT-2000 is also growing rapidly.
Under
these circumstances, participative web services such as SNS, blogs, on-line
games, and net auctions are also growing. For the development of participative
webs, as in the case of video sharing sites, for example, a Broadband
environment is essential.
As
participative web services increase in quality and quantity their power to
affect the society becomes stronger.
The
benefits of the participative web are as follows:
Firstly,
it leads to glutting of the society.
Everybody becomes able to possess social and economical influence to a
certain extent through the interactive exchange of information. Wisdom of crowds and collective intelligence
may change the society.
Secondly,
it leads to a change in the business model.
User-generated, or user-created contents may well make the market more
user-oriented.
Lastly,
services like SNS and websites that share video clips allow the simultaneous
and interactive exchange of valued information.
They enable the realistic communication and close long distances.
To
expand these benefits of the participative web I think the following issues
will be considered:
The
first issue is an increase of traffic. It comes to a matter of traffic
congestion. I'll explain this in the next slide.
The
second is the need to build a new registrative scheme. Discussions have just started in
The
third is to ensure the information distribution legally. To expand the participative web free flow of
information is important. However, there
is a concern of infringing copyrights or intellectual property rights and
disclosing personal information. And
there is also a concern that illegal and harmful contents are distributed to
the youth. To cope with these issues
appropriate legislative and technological measures should be considered.
Concerning
traffic congestion, I have some data to show.
The left graph shows the amount of downstream traffic of a major
provider during 24 hours in November 2005.
The
right graph is that of April 2006, six months later.
I
can point out four things: First, there was a significant increase in
overall traffic over the six months.
Second,
according to the data of April 2006 its traffic occupancy rate sometimes
reached nearly 90%.
The
third, peer-to-peer, so called P2P traffic -- the colour is red, purple and
brown, was larger than streaming and web surfing -- that is blue and
green. This means that P2P traffic has a
major significant impact on network than streaming and web surfing.
The
fourth, the average P2P occupancy rate increased by 30% at the peak level and
the at 10% at off-peak level for the half year.
Next
shows upstream data. We see that there
was network congestion in both upstream and downstream traffic. And the P2P occupancy rate was higher in
upstream than in downstream. And it is
almost clear that P2P users was a major cause of network congestion.
Maybe
movie sites such as u-Tube and fibreoptics enabled and accelerated the growth
of upstream P2P data flow.
How
should be cope with this problem? The
advisory study group submitted the report to the government on the network
neutrality on September 20th this year.
It covered a wide range of matters on the telecommunication competition
policy. As for the equitable cost
allocation of networks it reported the easing network congestion by the active
us of P2P was a powerful way to make efficient content delivery. It also recommended that in order to keep a
certain level of quality of service of the network some guidelines for a basic
framework on packet shaping should be developed.
As
for the equitable access to network, it recommended to make interconnection
dues regarding energy and developed my MTT and to review the existing dominant
regulations.
So,
we are now planning to do a joint experiment between government and industry on
P2P to find the best way to disperse traffic, and also other necessary measures
will be taken soon.
The
participative web, due to its nature, causes problems out of the traditional
regulatory framework and that close quarters.
To solve these problems I believe it is necessary for people to consider
and cooperate at forums such as the OECD.
I would like, therefore, to recommend two ideas:
The
first point is that we should include program awareness and the policy
challenges in dealing with the participative web in the Seoul Declaration which
will adopted in the Ministerial Conference next June and to facilitate program
awareness in OECD member states and non-OECD countries.
The
second point is that we should continue to hold this forum to encourage future
discussions and to create a global scheme for cooperation.
I
hope that we can move on with the things we have discovered and the
relationships we have built that this forum, and we can build participative
relationships in the future.
Thank
you all for listening.
---
applause
MR.
NEW: Thank you, Vice-Minister. That was very interesting. Thank you.
I
would like to invite Professor Urs Gasser, the Director for the Research Centre
for Information Law at the
MR.
GASSER: Good afternoon, everyone.
Please
let me take two steps back and approach this panel's topic from a slightly
different perspective by reporting about joint and ongoing research project
between the
If
you want to learn more about the project, we're here with a stand.
This project aims to
explore how the first generation of kids born digital, children who don't know
or couldn't imagine a life without Google, live their lives on how they use the
Internet.
So my remarks are more about the question: What kind of issues are emerging once
children got access to the Web, because these experiences in turn will also
affect a kid's willingness to go online in the first place, as we know from
several surveys.
At the core of the lives of digital natives is, to one
extent or another, as Shenja van der Graaf pointed out today, what we discussed
today, an increased level of participation.
In our view, and I believe also in the OECD's view, it
is important to frame participation in a broad way. Participation is not only about creating
fancy mashups featuring George W. Bush or creating your own Web blog or
contributing to Wikipedia. It is also a
story about increased social participation, as we learned today, and social
networking sides, as well as virtual worlds and social spaces are probably only
the tip of an iceberg.
It also means increased opportunities for economic
participation of young people. The key
word here might be young digital entrepreneurs who are coming up with probably
the next wave of cool applications.
Maybe we will have an opportunity to discuss that later on.
And, as we heard in this morning's session, of course
it also means new forms of political participation and activism.
This broad understanding of participation also makes
clear that the challenges associated with the participatory Web go far beyond
intellectual property rights issues and competition law issues. These two issues, especially IPR issues, have
gained so much attention in the past and they are still such a dominant theme
in the room, but I think in the years to come we need to shift our attention a
little bit to other very important issues as well.
In our research on digital natives we propose three
clusters of issues.
The first one is to question how the participatory Web
changes the very notion of identity, security and privacy. This was mentioned in the previous
panel. If you talk to kids, they have a
completely different relation to personal information and a different
understanding what it means to disclose personal information.
Second, the second cluster is about the implications
of the participatory Web for creativity, for creative expression, for free
speech, but also for the business of creativity.
Third, we are interested in how digital natives
navigate cyberspace, how they get their way through billions of Web sites,
how they find the information they are looking for, how they access the
quality, the credibility of information.
The role of governments in these three clusters is
very different from cluster to cluster and even from issue to issue. It may even change over time.
So what we are looking into right now is, how could we
define the role of governments based on a case‑by‑case
analysis? I will give you a couple of
examples.
Today we learned that digital natives have multiple
identities. They have their profiles,
for instance, on MySpace or Facebook, but they also have their virtual
representations in Second Life, and so forth.
All these profiles, these virtual representations are parts of their
identities.
Now, in this area of multiple online identities, we
currently don't see an obvious need for governments to step in and
regulate. However, this morning someone
mentioned that there is probably an emerging regulatory issue there, for
instance to ensure the interruptability between different platforms that
provide identity.
In the area of online privacy, another very important
policy area, we see a clear role of the government in contrast. Probably the role is less about making
additional laws, enacting new laws protecting privacy, but about implementing
and enforcing existing rules about international collaboration and also
harmonization to a certain extent.
In the creativity cluster we generally believe in the
power of market forces and bottom‑up approaches. Innovative business models, as well as new
and more permissive licensing regimes such as creative comments, to name just
one example, are key elements of this bottom‑up approach.
However, there may be a very specific role of
governments at the margins. For
instance, when governments legislate about technological protection measures,
so‑called anti‑circumvention legislation, they may use their leeway
under the different international contracts to create the conditions for a more
participatory environment.
Or when it comes to limitations and exceptions to
copyright, there too governments may play an important role in shaping the
legal framework.
My colleague, Professor Senftleben, will talk in great
detail about the options and possibilities regarding limitations and
expectations in a few minutes.
With regard to information quality issues and the
participatory Web, identified actually in this OECD report, we see only a very
limited role of governance, for instance by providing some minimum quality requirements,
either the ban of child pornography or certain forms of hatred speech, or a
more active role by providing high quality information in the context of
digital service publique.
But otherwise, as far as information quality is
concerned, the emphasis should be on education, on learning, on media and
information literacy.
Here of course the private sector plays a very
important role too. It can make
important contributions.
These few remarks also illustrate certain trends
when it comes to policy issues in the context of the participatory Web on the
one hand side and digital natives on the other hand side.
First, multiple stakeholders are shaping our kid's
online experiences in the future, ranging from peers, parents, teachers,
coaches, the companies and policy‑makers.
The challenge of course is to coordinate the different roles and
contributions of each group of stakeholders.
The second point is the challenges we have identified
and discussed during this day, and will continue to discuss, are global in
scope, which calls for a harmonized legal framework in some instances and in
other instances for other forms of coordination.
I hope we will get the chance to talk a little bit
about the question as to what extent do we want to harmonize legal frameworks
and as to what extent is it a bad idea.
Third, I believe that we need a more flexible approach
in understanding what regulation means in this place. I use the term "regulation" in a
very broad sense. It goes far beyond
command and control regimes.
Someone mentioned today, incentive‑based
regulation which is an important element in the policy mix I think, but the
emphasis in our research is currently education and learning with special
attention to media and information literacy.
I think if we map these challenges and trends it
becomes clear that the OECD's work is increasingly important because I think,
as you pointed out, Bill, OECD has an awareness‑raising function and an
agenda‑setting function and contributes to our understanding of the
digital environment and of the use of the Internet by different populations.
It also clearly plays an important role in
international coordination and harmonization efforts and makes great
contributions to alternative forms of regulations such as soft law by providing
recommendations, guidelines and best practice approaches.
That's it for my side.
Thank you.
--- Applause
MR. NEW: Thank
you, Urs.
I would like to invite Anne Bucher, head of unit for
the Information Society and Media Director‑General of the European
Commission, to give us her remarks.
MS BUCHER: Good
afternoon.
I'm going to take the general question on the role of
governments and I will say some words on competition.
On the role of governments, I'm not going to present a
European Commission line because we don't have one. I mean, what I will tell you is what I tell
my bosses internally when they ask me:
what should we do about participative web?
Basically, if you take that question, my reply is
policy‑makers have largely not anticipated the development of
participative web, they have not anticipated the business models, the size of
the communities, the purpose of the exchanges that take place. This has happened with the current
legislation. This has happened with the
current legislation on IPR, on privacy, on protection of minors, on liability
of service providers.
When governments are confronted with disruptive trends
and with things which change very quickly, it is wise and cautious to try first
to understand the long‑term implications before rushing into legislation
and policy changes.
In the meantime, what you see is that a lot of the
social networking which is happening is basically ruled by self‑regulation,
and self‑regulation has a role to play, and will probably keep a role in
the future development of the participative web.
Self‑regulation is a fairly adequate tool. I mean, if you think, it is able to respond
very fast. It is innovative. If you think of the creative common licence,
it is an innovative way of licensing content specific to the participative
web. It is coping with millions of
users, spread across different jurisdictions, with different legislation and
you can say one thing is that we do not have massive court cases.
So my recommendation is be very cautious before
moving. It doesn't mean do nothing. I mean, there's a certain number of areas,
and it's been mentioned. I mean, I have
heard several advisors and warnings from the audience this morning and this
afternoon, as well, we have to. IPR is
certainly an area where there are long‑term challenges.
The other challenges which we are coping with is the
fact that self‑regulation interacts with legislation, and in some cases
it potentially could raise problems. I
mean, you go on SecondLife. Now
SecondLife has started to give copyrights to the creators under the
I mean, there are some cases, for instance, and it happens
on games online, where users invest a lot of time in defining their identities
and in creating virtual objects, and then suddenly, I mean, they could be
expelled from this community by the service provider just because they are
suspected of having breached the rules.
In that case, they are still on their objects, but they have no right to
use them and they have no system of appeals.
So there are some areas where the legitimate interest
of the users will need to be protected.
But as I said, it's a bit prospective because we do not have real cases,
not that many. Therefore, the
recommendation in the short term is try to figure out what are going to be the
long‑impacts of what we are seeing now as innovations, and then think how
to integrate this into the policy.
As I said, I wanted to say a word on competition. Competition is definitely an area where
policy‑makers might have to step in earlier than they think. The participative web, it's true, it's really
a typical case for network effect. I
mean, if we believe that the value of the network is the square of its size and
if you see the business model relying on capturing advertising income, there
will be continuous incentives for developing horizontal or vertical integration
and further concentration.
We saw it from the beginning. I mean, Yahoo! and Google had a first move
advantage when they developed the business on search engines. They diversified the services available with
the chatting, with the videos, and maybe they will move into IPTV and other
services, and this will carry on.
The way we see it in the European Commission is that
it's not new compared to the other networks' effects we have seen, and we know
that anti‑trust policy has the means of restoring competition. I think, on participative web, I mean, our
first test is in fact already there because last week we have been notified of
the takeover of DoubleClick by Google, and it's one of the first cases of,
really, vertical integration in that business.
So we can rely on anti‑trust policy, and these are rather
classical network effects.
At the same time, I wanted also to say that maybe we
should not underestimate the competitive forces which are also at work in this
area, and I would mention two.
One is the long‑tail argument, and the second
one is the demand of users for open environments. On the long-tail arguments, I think the
long-tail argument definitely applies to the participative web. In
Similarly, you can say that the participative web has
not extended very much yet to professional purpose. I mean, we see some medical communities, some
education communities, but just think of the communities which could develop
with specific interest.
It's not obvious when you look at these communities
that there would be an interest for one or two major players to put all these
communities on one platform to channel, for instance, advertising
revenues. I mean, the logic is not very
strong on this.
The other argument here on the demand of users for
openness, I think we have heard this morning that all this marvellous
participative web exists because they are all open standards and they are open‑sourced. True, but it is not unusual in our
environment, as well, to have had more innovation models which have developed
on the basis of walled gardens.
And the participative web operates on the basis of
walled garden. You belong to a platform
and you exchange your communities within that platform and you are not
exporting your community outside and you are not exporting your profile outside
that platform.
But this is a rather typical form of innovation. And then when the market develops and then it
reaches a level of mass market, there's an increasing pressing of users for
interoperability and for openness. I
think what we have seen in the last 24 months, for instance, on the music
industry, the music download, is quite representative of this.
I mean, Apple has been very successful with the iTunes
Store as an innovative model, but there has been some resistance of the users
to the lock‑in of the model. Now
what you see, you see the competition of the music service providers being
exactly on business models, DRM Free or with other types of DRM, but responding
to the demand of the users to be able to migrate content from one platform to
the other. So this model for interoperability
exists.
And we see the trend
in the participative web happening. I
mean, the technology is there for having open identities, for having social
graphs. Facebook, for instance, has announced that they will make the profile of the
users public. Google will probably
follow. So there is a trend for making
this environment more open, and that should favour competition in the medium
term.
I
see have zero minutes left, so I'll stop there.
I
didn't talk about net neutrality which I think has more important implications
for competition than just the participative web as such, but I assume that will
come in the discussion.
Thank
you.
--- Applause
MR.
NEW: Thank you very much. I wonder what
double-click Google's chances are? I
won't ask you that.
Finally,
wrapping us up before we move to questions I would like to invite Martin
Senftleben, Professor of Intellectual Property at the Free University of
Amsterdam, to join us. Thank you.
MR. SENFTLEBEN:
Thank you, Mr. Chair. Ladies and gentlemen, good afternoon. Welcome to the fascinating world or
intellectual property.
We
already touched upon this issue today, already in the first presentation, when
I remember it correctly. So, I would
like to add some thoughts to the general questions regarding intellectual
property rights, and the participative web.
I
would like to place this issue in a broader context in order to approach
it. In fact, many of the questions that
I discuss now, at the moment, are not necessarily new. From the very beginning when the Internet
emerged, there have been two approaches:
The
first approach saying well, listen, the Internet is a perfect medium for
collaborative efforts for increased autonomy, participation, diversity. So, an instrument of the free flow of
information. And this argument is a
valid one, I submit.
Another
argument was that if we really want to encourage content providers, the media
industry, the information industry, to offer content on-line, then, of course,
we have to offer protection as well, otherwise this will never happen.
And this is a valid argument, as well.
So,
the question here is how to reconcile these two approaches, and the
participative web is just another phenomenon raising this issue another
time.
How
to reconcile the two approaches? I think
participative web is rather about the freedom and the free flow of information
part. So what are potential interfaces
of this new instrument with the protection of IP rights?
To
approach this question, let's first look at the stakeholders, what is at stake
in this context?
First
of all, we have on the Internet, of course, right-holders, copyright holders
are very prominent and then, again, database rights, people holding rights in
databases. And, there, again, we see
that we can't draw a black and white picture.
Platform
providers in the field of user-created content, for example, are very keen on
intellectual property protection when it comes to protecting their
databases. So we can't just say
intellectual property protection is something that is not valid in a
participative web context.
Then
we have lots of trademark issues arising here, as well. I do not concentrate on this one, the issue
gets too complex. I only raise certain
issues like giving the false impression of sponsorship or offering inaccurate
information about certain branded goods.
But, as I said, I don't focus on this issue here. So, this is the side of right-holders.
Then
we have users who want to transform, not themselves, but content, pre-existing
works, material. I submit that these
users are predominantly private users.
And
then we have users who add value to something that is already there. Users that build some new services on
pre-existing work, some material that is there that might be protected by
intellectual property rights, like search tools, content aggragators,
recommendation engines. And, here, we
have also a mix of users. Some of them
might be private users, others will certainly be commercial users.
And
then finally we have platform providers and, as the slide indicates, we cannot
draw a clear boundary line. Platform
providers might, to a certain extent, also end up offering something that can
be regarded as a value-added product.
So, in this sense they are users that add value themselves.
So,
what is the answer? The answer to the
question I raised: How to reconcile the
world, the fascinating world of the participative web with the protection of
intellectual property?
Let's
answer the question step-by-step. The
first group, transformative use. Users
who transform pre-existing material want to know "Can I be sued for
infringement? Copyright infringement,
for example?"
What
are the factors to be considered?
I
think there are three main points to make here:
These
users engage in an activity that is related to freedom of expression and
democratic participation, so we have a very strong human rights underpinning
here.
Then
we have the idea of inter-general equity among creators. In fact, we can say that every creator, every
author, builds to a certain extent upon pre-existing material as a source of
inspiration, or he uses building blocks from something that is already there. So, this idea of inter-general equity also
adds a strong argument.
Then,
finally, as we got to the participative web we have to admit that there is a
promising creative potential out there, a promising creative potential of
individuals who just wait for a platform to offer their ideas, and I think we
should try to use and realize this potential.
And so I think we have strong arguments in favour of saying there should
be copyright limitations.
These
users, transformative users, should be exempted from copyright liability, and
they also have traditional solutions, traditional answers to this problem,
limitations for quotation, parity criticism review. We find that in international conventions
that have been in place for more than a hundred years. So this idea is not new.
I
think what we can do now is to broaden and diversify the already existing rules
in this area. And, also, this idea is
not necessarily new, if we look at the UK Gowers Review, there we find similar
recommendations.
I
want to add another point. All these
limitations, quotation parody, are based on one basic idea, and this is that
intellectual debate takes place. A
quotation necessarily implies that the user adds some critical comment. That he uses the reference to a work as a
reference point. And I think this is the
criteria that should necessarily -- that should in any case be maintained
because this can also help to solve the problem of content quality. So, in order to qualify for this kind of
limitations, users should really make an effort to enter into an intellectual
debate and not just to free write on pre-existing work and not just to engage
in mere copying.
The
second group: Value-added products.
Also, these users want to know is there infringement. And the factors to be considered here,
according to my insight, is:
First,
these value-added products are important engines of competition and
innovation. They create more and more
demand and so they are important players in the field of the participative web.
A
second argument is they are important because they help to disseminate
information. We see that information is
diverse and fragmented in the participative web, so we need services who
filter, who bundle information.
And,
thirdly, and this is the most important point, you may not overlook that it is
about the distribution of markets.
Basically, a valued added product is the new secondary market that is
built on the primary market of the original product. So, in any case, value-added products should
not kill demand for the original product.
This is one of the basic rules.
We
find traditional solutions also in this area.
There have for a long time been limitations for press summaries, press
reviews, library services who offer value-added products as well. So, the recommendation here would be that
limitations for value-added products are a good thing, but only if they do not
erode the primary market, the demand for the original work, and if equitable
remuneration is paid, because many of these users are commercial users and in
this case I think it is fair to impose an obligation to give some payment in
the form of a flat rate or levies, to the content providers.
Finally,
platform providers, they want to know "Am I liable?" There might secondary liability, contributory
liability factors to be considered here.
They are indirect beneficiaries of limitation. If a limitation exempts the user from
liability, then of course the content -- the platform provider is also not liable.
Then
I already mentioned this connection with value-added products. Many of the platforms may be regarded as a
value-added product itself, so in this case, the rules for value-added products
should apply. But then the hot potato
here is the heavy burden of general monitoring. Who
should spend time and money on sifting through all the material that is placed
on the participative Web every day?
There is a traditional solution, this is notice and
take down procedures. Basically it says
that the platform provider in this case would only have to take action if he
receives a notice saying "Listen, on your platform there is some content
that is infringing".
These notice and take down procedures have been used
in the field of Internet service providers, to a certain extent also in the
field of trademarks, the uniform dispute resolution policy refers to this
one. I think that to platform providers
this mechanism applies only to certain extent.
I think notice and take down procedures should be
introduced only if the platform plays a rather passive role, so
the closer the platform provider is to the content offered on the
platform, the more it should be under an obligation to check what is on the
platform.
If there is a platform provider who redistributes, who
restructures the Web page anyway, I think then it is fair to say he should have
a look at the material that he finds and, in any case ‑‑ this
goes for all platform providers ‑‑ proper precautions should
be taken. I think it's fair as a minimum
standard to offer information to users pointing out the risk of infringement,
and in case some kinds of use are typically infringing the platform providers
could take action.
I think YouTube for example reduced the time for video
clips that can be placed to 3.5 minutes, so you can't find entire
Finally ‑‑ I'm already at zero
minutes ‑‑ two horizontal issues.
Technological protection measures. These are a good thing also in the field of
the participative Web, but in any case limitations should prevail. If they don't, then there is no need in
introducing new limitations. There are
rather bad examples in current legislation.
I refer to article 6.4 of the European Copyright Directive where we
don't find the means for beneficiaries of quotation and parity limitations to
assert these limitations against rightsholders, whereas other types of
limitations, for prisons for example and for hospitals, can be asserted against
rightsholders.
I think that core limitations like these freedom of
expression limitations in any case should give a strong position and in this
case limitations should in any case prevail.
Second, we have to enhance legal certainty in order to
have limitations be efficient so we can encourage contractual solutions,
solutions like creative comments licences, and we should in any case reduce the
impact of abstract control mechanisms, abstract legal rules that are imposed as
an additional control on limitations. An
example here is the famous three‑step test of international law.
The influence of these kinds of regulatory means
should be reduced in order to have more legal certainty.
Thanks for your attention.
‑‑‑ Applause
MR. NEW: Thank
you, Martin.
Well let's move to questions.
Unfortunately, we don't have a great deal of
time. I would put it at about
20 minutes, if I'm not mistaken. So
I would ask the floor if there is anyone who would like to ask a question at
this time and, if not ‑‑
Oh, sorry. Yes,
please.
QUESTION:
Jonathan Taplin from the
I was astonished by your slides of the growth of
bandwidth. If you pardon the pun I might
posit a new Mori's law that the amount of content expands to the amount of
bandwidth possible in the network.
Obviously we all look to Japan as the leader in fiber
optic, but to see that astonishing growth in content leads me to wonder: Do you feel that the principles of new
network neutrality are still possible given this experience that you have in
Japan with the amount of streaming video, peer‑to‑peer traffic and
yet you can still allow open access to various networks by anybody who is a
content provider so to speak?
MR. MORI: Thank
you very much.
Just I mentioned the discussion in
How should we cope with that is a very big
problem. Tomorrow I will talk to this
matter with Martin so I will find an extreme answer later.
MR. NEW: Thank
you.
I think we have a question at the back.
QUESTION: Hi
there, my name is Danielle Par(ph) and I am from the Entertainment Software
Association of Canada, so I represent video game publishers in
One of the issues I guess we touched on a little bit
in some of the presentations was about technological protection measures and
digital rights management and the ability of content creators to control access
to content and I would be interested to hear a little bit more from the
panellists about the concept.
Because I know our industry I think has taken a fairly
innovative approach in terms of, you know, having technological protection
measures but allowing some user manipulation I guess of the intellectual
property.
MR. NEW: Would
anyone like to take that?
Perhaps, Martin, you could say little something on
this.
MR. SENFTLEBEN:
I'm not sure whether I understood the answer correctly. So it's about the question of digital rights
management technological protection on the one hand and creating new content on
the other or transforming content?
QUESTION:
No. I was just saying, I would be
interested to hear your views about the rights of the creator to control access
to their own content.
Because we have talked a lot about the participative
Web and all the benefits, you know, from being able to manipulate content, but
what about the rights of the creator and their ability to control access to
that content.
MR. SENFTLEBEN:
Well, I think this is a fair claim.
As I pointed out there have been traditionally two
cultures, the free flow of information culture and also the traditional
approach of protection of works of creative effort, and I think both sides are
valuable and there is a good point on both sides.
I think creators should have the choice and nowadays
you have the choice. You can opt for a
creative comments licence if you want to make your content available, also for
informative use and other sources.
But there are also users who just want to exploit
their works. I think
this is perfectly understandable and should also be accepted.
So what I was proposing are certain limitations,
offering transformative use options, but to the extent that intellectual debate
takes place and that you really depend on pre‑existing works in order to
express your own thoughts.
MR. NEW: Madam
Bucher, do you have a remark on this?
MS BUCHER: Yes,
maybe an additional remark.
I mean, first of all, in a lot of game environments
users own their content only on the platform and it's not something they can
export to other platforms. So already
this problem of how a user ‑‑ what are the real rights of
using his own creation.
What is the right of using your own creation? It's not very clear always in the terms of
use of the end user licence agreements of games. So it's something which needs to be clarified
before even thinking of DRM solutions which would be more for cases where you
would really be able to make your content freely available everywhere.
I mean, on the DRM aspect, I think there were ‑‑
we still have to have the debate on DRM's, yes?
There was a lot of hopes that the DRM technology will enable the
migration of traditional content online and this is not happening. This might happen maybe for films, but now
DRM have lost their credibility. They
are seen as very rigid technologies.
I'm not an expert in technology, but what I understand
from my colleagues who do with that is that there are some forms of DRMs which
are quite more flexible than what we have been seen used by the traditional
content owners, that in fact you could have solutions and some software
providers have thought about that, of having a DRM, which you would have as
part of your normal package of software in your office, on your desktop, where
you could decide to DRM any document you wanted to define the conditions of
use.
I mean, if such a solution existed, and apparently it
is technologically feasible, it would be wonderful and would solve, I mean,
partly the problem you mentioned for content creation in a games environment.
MR. NEW: Yes,
Urs.
MR. GASSER: I
will jump in here and be a little provocative.
I believe DRM and technological protection issues are
dead. It just failed as a response to
piracy. So if you look around, even
industry representatives are acknowledging today that the role of DRM is no
longer about the fight against piracy rather than supporting new business
models, but more like the accounting part of it, to measure the use and, you
know, to do some price discrimination and so forth, so....
But as a means to an answer to piracy, I believe, I
strongly believe, DRM's dead.
MR. NEW: Okay,
thank you.
It raises a question that I'm going to try to fit in
quickly, but I will ask it after this, to discuss just for a moment what are
these new business models. Maybe we can
get that out in the open a little bit more.
Please.
QUESTION: Eddan
Katz, from the Information Society Project at
I wanted to ask the question about who owns this stuff
or, better put, who should own the stuff, or whether we should be thinking
about it differently entirely.
Especially from the Europeans, we heard three different perspectives,
one of which is about the liability of the platform, sort of underlying that an
assumption that the platform would probably own everything that takes place on
these networks.
There's also moral rights, which I would expect,
especially from a largely European panel, that this is owned individually by
people contributing to these networks, and for it to be taken away from them is
sort of degradation of their rights.
Then we hear from Urs that people have multiple
identities and exist in this post‑modern world where they are a mix of
self and community, and all of that, and I'm wondering if, in trying to address
the intellectual property part, whether there's some real big challenge here
going on in regards to authorship that requires a fresh look and whether or not
government regulation can contribute and nudge along in one way or another.
MR. NEW: Did
you get that question? It looks like
Martin.
MR. SENFTLEBEN:
Well, this is, in fact, a very good question, who owns the stuff.
I think it's basically a problem of bargaining power
as regards certain platforms. If you
want to have your material placed on a specific platform, then you certainly
have to subscribed to the terms you find in the licence that is offered by that
platform. This is, of course, a big
problem, potentially, if there are only specific platforms for the kind of use
you want to offer in the participative web.
But, again, this is a problem which we also have in
the traditional world: the kind of
buyout contracts where authors just simply throw away their works and all the
rights that have been given to them, originally by law, and then with only one
signature everything is gone. But
government policies could perhaps step in here, to a certain extent, as regards
laws.
As regards laws in Europe, for example, one way would
be to ask how to control these general contractual agreements which you find,
and there we have already, if I'm not mistaken, some European legislation, at
least in the member states, you find legislation. I think in the
Of course, there you can say that some very specific
issues, where you really give away, for example waive your moral rights in the
field of copyright, that this should be reserved, that you can't give that away
just by subscribing to a general contractual agreement, that this can only be
achieved on an individual basis. So this
could save some ground for the users.
Then another possibility is, of course, the
switch. I mean, the participative web,
as far as I understood, is evolving every day, new services every day, so if
there is one platform offering really bad conditions, then perhaps the next day
somebody will offer another platform that offers more generous conditions.
I think this is, then, a more market‑based
approach, that you say, Well, finally, we will end up with many different
platforms, offering different contractual solutions.
MR. NEW: Anne.
MS BUCHER: Yes,
this is a general problem on the ownership of the virtual objects or
identities.
Users sign end user licence agreements. It is our experience in the
And his is a problem which is not specific to the
participative web. It is something which
also is seen for software licences, it is seen for services online. I mean, there has been a recent study by the
German consumer organization, which has reviewed end user licences for more
than 50 services of music online, and they have found that none of them was
compliant.
Then what is the role of government for this? I think, then, the role of government is
really to educate people, is really to tell them what are their rights. I think we are coming back to what Urs was
saying, you need to tell people what are their rights: rights to privacy, rights to ownership, and
then afterwards, when they sign a licence, they know what they are doing.
I think that's the main action at that stage that we
can take. I mean, you could think of,
also, some guidelines which could be given.
But in areas where there's much more experience, like in the area of
software, I mean, the software providers tell us, But what's the problem,
there's no case law, after how many years of using software. They are right, there's no case law.
So this also applies to this problem of
ownership. We can anticipate the
problem. We can know the problem is
there in the terms of condition of the licences. It doesn't mean that the users will not
accept the rules and live with them.
My additional point is when you start giving rights to
the creator in an online environment, like it is done, for instance, now with
SecondLife, then the creator has a right, and a copyright you have it in the
place where the content is.
Where is the content?
Is it on the server? Is it where
the user is? I mean, you will get into
discussions which are also very complicated, which we need to have, but it's
very early in the process for identifying completely the implications.
MR. NEW: It
seems like it must be difficult to communicate to the public what their rights
are, and to encourage them to work within their rights and not to be afraid to
do these things when there are so many questions revolving around these
issues. But nobody wants to be the case
law.
Do we have any other questions? Yes, please.
QUESTION: My
name is Taylor Reynolds, from the OECD.
I have a follow‑up question from Mr. Katz here.
I have stopped putting my own content on uTube just
recently after reading through the end user agreement that I agreed to, because
I felt like I was giving too much control to Google for the videos of my own
children that I was posting on the web.
What I would like to do instead, is actually host that
content at home, on a home server, so that I maintain copyright and control
over that, but I can still send it out to people.
The problem is most ISPs limit me and I'm not allowed
to run server software from my home, and the other problem is I don't have a
very fast upstream.
So in countries like
MR.
MORI: Yes, I first thought that if we
install fibreoptics or a wider Broadband environment the flow of information
will go on very smoothly, but the result was different. The more we install,
the more condition happens, not only downstream, but upstream also.
But,
as I said, there is a -- we are now going to make experiments how to make
active use of P2P. That may be the
result or may be a good answer to that question, because there are so many P2P
softwares, and to make over a network, maybe it will help this kind of
question.
But,
one more thing is, how to make package shaping.
We have to admit that each carrier or ISP's have the right to limit
their Bandwidths, because -- and the problem is that on what condition the
limitation is done from the consumer protection point of view. That's the problem. And we will discuss this matter from now on,
in
MR.
NEW: Thank you. Yes?
QUESTION: Michael Hennessy(ph) with Telus.
Just
to follow up with Vice-Minister Mori, a question on, you had suggested that
there were two recommendations from the September 20th report, one being, as
you discussed, the packet-shaping guidelines and the other being
interconnection tariffs, non-discriminatory interconnection tariffs. But I didn't understand quite who is to pay
the interconnection tariffs? Is this the
idea that it would be on large Bandwidth users?
Is that the idea?
MR.
MORI: Yes. In a short word, the person who uses the
network should pay much more. But there
is a problem. How can we measure the
charges? And, the program is that
Internet is -- best efforts service, itself.
So, on what condition is the service good or not? But, anyway, the network carrier has to pay
-- has to invest their networks, so someone should pay for that. So we are now -- began discussion what kind
of payment, charging, is suitable for this situation.
Thank
you.
MR.
NEW: Thank you. Yes?
QUESTION: Good afternoon. My name is Michael Shapiro. I'm with US Patent and Trademark Office. But in this informal, non-deliberative
session, my views are my own and do not necessarily reflect those of the Untied
States Government.
I'm
always delighted to hear from eminent professors of law from the European Union
and other nations in Europe, that the
I
think it is fair to say that notion took US courts by storm, since the seminal Acuff-Rose
case in 1994, the results have been somewhat uneven and certainly uncertain and
unpredictable.
In
the words of one leading commentator "a transformative use is largely a
beauty in the mind of the beholder."
Given
this background, I'm curious how this notion would comfortably map onto
European Union law that is largely a more categorical approach. The transformative use doctrine under
Moreover,
I'm curious, given the
Your
thoughts would be welcome.
MR.
NEW: Thank you. Who would like to take that question? Okay, Martin?
MR.
SENFTLEBEN: Well, as regards the first
part of your question, how can this idea, this concept of transformative use be
translated into EC legislation or the European Copyright tradition? Well, the answer is, it has already been
there for quite a long time.
If
we look at international treaties that underlie European legislation, the Berne
Convention, for example, we find that in Article 10 the right to quotation is
really regarded as a right. "Member
states shall prove for limitations for quotations." So, what you find in EC legislation and also
in the legislation of Continental European Member states is, of course, not the
transformative use doctrine in the shape of a fair use doctrine. Instead, you
find clearly stated limitations, statutory limitations saying that it is not an
infringement of copyright to make quotations, or to engage in parody.
And
the requirements that have been developed in this context then are, as I
pointed out, that really something like intellectual debate takes place. For example, the High Court in
So,
we have the transformative use doctrine already for quite a long time in
Continental Europe, I would say, but of course in the shape of Continental
European laws.
And,
as regards your second point, I think at the moment Continental European laws
are becoming more and more fair use type laws because of European legislation,
and this is a topic that is very dear to my heart, it's about the three-step
test at the international level that is a very open-ended norm, very close to
the use of fair use doctrine, and what EC legislation has done is it has
translated this international norm directly at the community level, and now we
find it at the national level. So, I
would say what we see in
So,
if you want, we have two approaches: The
fair use doctrine in the
So,
I think, for the time being, we face very much the same problems here in the
MR.
NEW: Well, I don't think I see -- oh,
would anyone else like to answer this? I don't think I see any other questions in the
audience. And, in fact, we, I believe,
have come to the end of our time. And,
so I would like you to please thank the panel.
---
Applause
MR.
OXLEY: That was wonderful, William. Thank you so much.
We've
come to a really good part of the day, a nice coffee break. It's getting to the end of the day and I'm
not sure if everyone is feeling the same way I am; I could really use that cup
of caffeine right now.
‑‑‑ Upon recessing at 1630