Copyright battle rages over ‘caching’

Date: 22/04/1999

By Peter Chapman

THE lobbying battle over the EU's copyright regime for the 21st century has moved to the Council of Ministers, following February's dramatic vote in the European Parliament.

Member state copyright experts are now attempting to pick up the pieces after MEPs demanded significant amendments to the European Commission's plans - changes which attracted high praise from some and bitter condemnation from others.

They can expect to receive the same barrage of letters, press releases and position papers on this highly technical subject which often baffled members of the Union's legislative assembly.

The debate over the complex web of detailed legislation has so far proved, surprisingly, to be one of the most glamorous and heated in EU policy-makers' memory.

It stars the heavyweights of the international music industry, led by France's Jean-Michel Jarre, desperate to secure as much control as possible over the use of their works in the online sphere amid fears of wholesale digital-quality copying via the Internet.

The music industry was relatively pleased with the outcome of the Parliament's first reading of the proposals. MEPs voted to give artistes the right to control and seek payment for copying of their works in digital format. Record companies also won the right to control the distribution of their works delivered 'on demand' over networks.

But those on the other side of the argument - the telecoms operators and Internet services providers (ISPs) who transport information over the networks of the World Wide Web and the Internet - were not.

They have been left perplexed by a controversial Parliament amendment concerning the temporary copies of music, pictures and other 'content', known as 'cache' copies, which are automatically made when data is sent across networks. The amendment in question would allow such copies to be made, but only if they were authorised by the rights holders.

The telecom companies and ISPs have warned that this would force them to keep track of everything which crossed their networks to ensure it did not breach copyright rules. One alarming side effect of this would be that they would have to stop 'cottage industry' websites selling music and specialised or new artistes marketing their own content via their networks, to avert the risk that these might be in breach of the law.

Another piece in the copyright jigsaw angered those representing special interest groups such as public libraries and disabled people who are seeking 'fair use' exemptions from copyright rules.

MEPs said they wanted to give disabled people the right to make copies of content in order to transform it into more easily readable forms such as Braille. But they also agreed to allow content owners to use technical devices such as scrambling to prevent anyone from copying their works, including the disabled.

However, lobbyists in all three camps know there is still everything left to play for as they turn their attention to the committee rooms of the Council of Ministers.

Member state officials are already working on their positions on the copyright proposals, and are anxiously awaiting the Commission's formal response to the amendments demanded by the Parliament, in the shape of a revised text.

The fiercest arguments between EU governments are likely to centre on demands that individual countries be allowed to grant certain groups exemptions from the new copyright rules.

Insiders claim France has already called for a waiver for works of 'parody', while Greece wants one for religious works and others are bidding to exempt photographs of public buildings.

Experts fear that too broad a list of exemptions could undermine the single market by creating a different set of regulations in each member state. That is why the Commission concentrated on a narrow list of opt-outs in its original proposals.

Another battle is likely over the 'fair compensation' which rights holders must receive for private copying. The UK, Ireland and Luxembourg do not operate blank tape levy schemes to repay artistes for lost earnings and are likely to resist any moves to set up such a system either for analogue or digital recording media.

In theory, the German presidency could push for agreement on the issue in time for a June meeting of EU internal market ministers. However, no one believes Bonn has a realistic chance of clinching a deal before Finland takes charge of Union business in July.

Article forms part of a survey 'Converging technologies', p13-20.