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Competition Czar weighs into copyright, trademarks

Barnier BREINstorms on IPR

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The European Commission has published its blueprint on IP, in a document with suggestions for orphan works, music licensing, trademarks, counterfeiting and online liabilities.

The Commission wants multi-territory licensing of music rights, rather than forcing users of copyright (in the traditional sense) to negotiate country by country. Copyright groups want this too – and came up with a proposal to grease the wheels called the Santiago Agreement 10 years ago. This was rejected by Eurocrats as not being single-markety enough. They want any country to license everybody else's rights. Creators and their representative groups fear a race to the bottom – an Elbonia would offer the rights to all European music for peanuts, and then never pay anybody. Companies such as Google, who hate paying for anything, don't think this is such a bad idea.

There's little concrete to worry ISPs, just yet. Although the commission wants to encourage rights-holders to sue serial infringers, it is leery about tipping the balance of liabilities against service providers. The internal markets commissioner Michel Barnier said he was only just opening dialog with the service providers.

Barnier has said he is watching the Netherlands closely as a model. There, BREIN has taken ISPs to court for infringing material found on Usenet. BREIN took Pirate Bay to court, which resulted in a meaningless sort of victory. Although there were some early outages, the founders were fined in their absence, and the site continues to be available in the Netherlands.

The Blueprint promises that next spring "the Commission will propose to revise the IPR Enforcement Directive (see IP/04/540). The Directive provides for civil law measures allowing rights-holders to enforce their intellectual property rights but should be adapted, in particular to meet the specific challenges of the digital environment."

Most controversial of all, perhaps, is the expected orphan works proposal. We've done plenty on orphan works recently, and won't rehash the arguments. The subject remains a great litmus test of whether a "copyright expert" – and there are so many – is an academic poseur, or ever ventures into the real world.

In a nutshell, there would be little controversy if "orphan works" meant "ancient photographs whose owners are probably dead that are locked away in libraries". Agreeing that they should be brought to a wider public is like agreeing Motherhood is a good idea.

But it's a living issue: most images on the internet are orphans, too, having been stripped of their identifying information. Large publishers, and organisations such as the BBC, strip away the identifying information on an industrial scale. Legislation to ease the dissemination of the ancient photographs also risks destroying the livelihoods of graphic artists, illustrators and photographers, by sanctioning the commercial use of their work, without their permission, and robbing them of redress.

Those creators will find little sympathy in the Commission's Orphan FAQ, which describes giving "film heritage institutions and public service broadcasters ... a sound legal framework that safeguards them against claims of copyright infringement." An orphan user would merely have to perform a "diligent search". So much for the rights of the little guy.

The Commission is also mooting the extension of trademark protection beyond agricultural goods. If you're in Champagne, then you can make Champagne, but anyone can produce Carrara marble, or Solingen knives.

This must stop, says the Czar. ®

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