The Digital Media Project  
Source L. Chiariglione
Title Comments on COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS on Creative Content Online in the Single Market No. 080106chiariglione02

 

Comments on

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS

on Creative Content Online in the Single Market

This paper makes some comments on the Communication posted by the European Commission on "creative Content Online in the Single Market". Text in italic is taken from the summary.

Furthermore, there were various calls for financial support and various requests for promoting standards concerning the interoperability of DRMs.

There is no need for standard concerning the interoperability of DRMs (Systems, I suppose). It is sufficient that the managers of the two systems get an agreement between them.

For policy makers, making the most of this change means meeting three related objectives:

I note that consumer needs are not mentioned as an objective

While legitimate online offer of creative content is widely regarded as one of the means of curbing illegal copying,

Maybe. However, in spite of millions of tracks available online, distribution and copying of music content without remuneration to those who have made the content is continuing.

As a result of copyright territoriality, a content service provider has to obtain the right to make content available in each Member State. The costs incurred, may be detrimental to the exploitation of a vast majority of European cultural works outside their national markets.

If we seek a perfect solution we must solve this. as a first approximation, though, this a problem that is at least one order of magnitude than others.

The uptake of legitimate services passes by tackling the problem of digital piracy by enhancing the cooperation between the various players in the value chain and by developing attractive offers and business models for the distribution of digital content.

Order matters. The sentence above should read "The uptake of legitimate services passes by tackling the problem of unremunerated distrubtion, consumption and copying of digital content by developing attractive offers to consumers. Enhancing the cooperation between the various players in the value chain and developing business models for the distribution of digital content may help achieve the goal."

DRM constitute a key enabling technology in this respect, allowing right holders to enforce their rights in the digital environment and to develop business models adapted to consumer demand and needs.

Any attempt to solve the problems of digital content today that sees DRM simply as a means to rights holders to "enforce their rights" is doomed to fail. DRM is primarily a "management", not a "protection" technology.

Notwithstanding, these developments mainly concern one type of content and business model; i.e. pay per download of music.

This is not true. Creative Commons licences provide the means to distribute content preserving some rights. The very User Generated Content (UGC) phenomenon proves that there are many more ways of distributing content that does not rely on "protection" versions of DRM.

The move to a DRM protected environment results in a major paradigm shift for European citizens and consumers.

It is wrong to concentrate on the "protection" versions of DRM.

As a result consumers must increasingly confront complex contractual terms when purchasing music, film or other creative content online, and are not necessarily fully aware of the usage restrictions applied or the use of their personal data.

Any attempt to discharge on consumers such complexities is bound to fail.

Better interoperability of DRM systems would improve the level of competition and consumer acceptance necessary for the take-up of online distribution of creative content.

It is not acceptable to make consumers pay for the inability of stakeholders upstream to provide a decent user experience.

For consumers, DRM interoperability means that they can choose different devices and still use them with different 'download-to-own' services. For content producers or content aggregators interoperability means they are not locked into one distribution channel that forms a gatekeeper to the marketplace. For device and ICT developers, interoperability means that their products can be used with different content services

This is very good, but it is not "better interoperability of DRM systems". It is interoperability. Period.

As lengthy discussions among stakeholders did not yet lead to the deployment of interoperable DRM solutions, there is in any case a need to set a framework for transparency of DRMs regarding interoperability, by ensuring proper consumer information with regards to usage restrictions and interoperability. Providing consumers with an accurate and easily understood labelling system on interoperability and usage restrictions, allowing them to make an informed choice will improve citizens' rights and provide for a sound basis for a wider availability of content online.

It is not acceptable to make consumers pay for the inability of stakeholders upstream to provide a decent user experience. A target as described before is not going to solve the problem.

Recording music and film industries have expressed the view that the Commission should be prepared to take legislative steps to make sure that the public interest in ensuring an adequate level of data protection is properly reconciled with other important public policy objectives such as the need to combat illegal activities and to protect the rights and freedoms of third parties.

Proposals of such actions will be receivable only when consumers will be offered a decent user experience.

Piracy and unauthorised up- and downloading of copyrighted content remains a central concern. The fight against online piracy involves a number of complementary elements: (1) developing legal offers; (2) educational initiatives; (3) enforcement of legal rights; (4) seeking improved cooperation from Internet Service Providers (ISPs) in stopping dissemination of infringing content. The idea of education and awareness-raising on the importance of copyright for the availability of content is widely supported as a tool in the fight against piracy.

There is first a need to offer consumers a decent user experience.

Content owners call for increased co-operation in the fight against piracy. Annex I to the recently adopted legislative proposal for the reform of the Authorisation Directive includes references concerning compliance with national measures implementing the Copyright Directive (2001/29/EC) and the Enforcement Directive (2004/48/EC)15. Moreover, Article 20(6) of the legislative proposal to amend the Universal Service Directive provides for an obligation for ISPs to clearly inform subscribers in advance of the conclusion of the contract and regularly thereafter of their obligations to respect copyright and related rights

Nothing should be undertaken as long as consumers are not offered a decent user experience.

In France, a Memorandum of Understanding between music and film producers, Internet service providers and the Government was signed on 23 November 2007. Under the agreement, France is to set up a new Internet authority with powers to suspend or cut access to the web for those who illegally file-share.

As long as consumers are not offered a decent user experience and the positive effects of it are not assessed, any attempt at curtailing the fundamental rights of communication of European citizens should be fought vigorously.

It would indeed seem appropriate to instigate co-operation procedures ("code of conduct") between access/service providers and right holders and consumers in order to ensure a wide online offer of attractive content, consumer-friendly online services, adequate protection of copyrighted works, awareness raising/education on the importance of copyright for the availability of content and close cooperation fight piracy/unauthorised file-sharing.

It does not help to turn around the problem and not giving definite answers. Consumers want interoperability, they want to be able to play the content of their choice on the device of their choice. All the rest is placebo.

The remit of the Content Online Platform will include the issues mentioned in this Communication such as: availability of content, improvement of rights clearance mechanisms, development of multi-territory licensing, management of copyright online, cooperation mechanisms to improve respect of copyright in the online environment. The work of the Platform should also contribute to the elaboration of a Guide for consumers and users of Information Society services

I note that the remit does not include interoperability.

Reflecting on the preparation, towards mid 2008, of a proposal for a Recommendation of the Parliament and the Council on Creative Content Online, which would cover the following issues: transparency (labelling) and interoperability of DRMs

How is it possible to make a recommendation on interoperability if there is no discussion on it in the the Content Online Platform?

1) Do you agree that fostering the adoption of interoperable DRM systems should support the development of online creative content services in the Internal Market? What are the main obstacles to fully interoperable DRM systems? Which commendable practices do you identify as regards DRM interoperability?

Offering consumers the ability to play content on a device of his choice is  to establish mutual respect between rights holders and consumers.
Interoperability of DRM systems is not a technical problem as it does not even require standards. To create a regime of interoperable DRM systems requires the solution of complex technical, legal, business and governance issues that will take years - if ever - to achieve.
A practical DRM interoperability solution is the one offered by Digital Media in Italia that envisages the obligation of an operator distributing content using a proprietary DRM technology to also distribute content using a standard DRM technology.

2) Do you agree that consumer information with regard to interoperability and personal data protection features of DRM systems should be improved? What could be, in your opinion, the most appropriate means and procedures to improve consumers' information in respect of DRM systems? Which commendable practices would you identify as regards labelling of digital products and services?

Any action along this line is not going to win consumers back

3) Do you agree that reducing the complexity and enhancing the legibility of end-user licence agreements (EULAs) would support the development of online creative content services in the Internal Market? Which recommendable practices do you identify as regards EULAs? Do you identify any particular issue related to EULAs that needs to be addressed?

EULAs are too complex for consumers

4) Do you agree that alternative dispute resolution mechanisms in relation to the application and administration of DRM systems would enhance consumers' confidence in new products and services? Which commendable practices do you identify in that respect?

Any action along this line is not going to win consumers back

5) Do you agree that ensuring a non-discriminatory access (for instance for SMEs) to DRM solutions is needed to preserve and foster competition on the market for digital content distribution?

Any action along this line would be require the solution of complex technical, legal, business and governance issues that will take years - if ever - to achieve.

6) Do you agree that the issue of multi-territory rights licensing must be addressed by means of a Recommendation of the European Parliament and the Council?

It is nice to have, but priorities are elsewhere

7) What is in your view the most efficient way of fostering multi-territory rights licensing in the area of audiovisual works? Do you agree that a model of online licences based on the distinction between a primary and a secondary multi-territory market can facilitate EU-wide or multi-territory licensing for the creative content you deal with?

No opinion. In any case this is not a priority

8) Do you agree that business models based on the idea of selling less of more, as illustrated by the so-called "Long tail" theory, benefit from multi-territory rights licences for back-catalogue works (for instance works more than two years old)?

Maybe, but it is not a priority

9) How can increased, effective stakeholder cooperation improve respect of copyright in the online environment?

By implementing a practical DRM interoperability solution like the one  advocated by Digital Media in Italia

10) Do you consider the Memorandum of Understanding, recently adopted in France, as an example to followed?

Such an example is to be fought by all Europeans who care about the fundamental rights to communication that Constitutions of EU countries grant to their citizens

11) Do you consider that applying filtering measures would be an effective way to prevent online copyright infringements?

Ditto

 

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Comments should be sent to leonardo "at" chiariglione "dot" org