The meeting was attended by around 40 senior figures from the Czech Copyright community, including a Senator from the majority party, the head of the Government’s copyright section and senior officials from other Ministries, the Head of the National Gallery, the Deputy Head of the National Library, the President of the Czech Pirate Party, the Founder of the Creative Commons in the Czech Republic, the Heads of the big collecting societies, the Lead representative of the recording industry, media executive, leading experts from academia and civil society and senior representatives from the technology sector. The discussions were moderated by Jolana Voldánová, a professional news anchor who works for the Czech National Television.
Tomas Svoboda, the Head of the Digitisation and Technology Section at the Czech National Library opened the event on behalf of Director-General Tomas Böhm. He stressed the deep involvement of the National Library with Copyright legislation and briefly outlined the Library’s approach to data management. From his perspective, all the works of the library, be it physical books or digital, should be made available for free to the public.
The Needs of Creators in the Digital Age
Konrad Boehmer, a noted composer and former president of Dutch collecting society BUMA/Stemra, followed with a passionate speech about the role of authors in the current distribution system for musical works. In a brief historical excursion, he offered a look at the monetization of music over time and observed that with the invention of recorded music at the beginning of the 20th century, music was transformed from being a cultural service to being a commercial commodity. Recorded music lowered the value of music, which, in turn, allowed it to infiltrate private and public spaces at an unprecedented level. In Mr. Boehmer’s words, “art music degenerated into entertainment and finally entertainment degenerated into an acoustic narcotic drug”. At the same time as it pushed down the value of music, Mr. Boehmer argued, the industry raised the price of music more and more.
As a result of this, when the Internet broke the monopoly distribution model of the music industry, an entire generation was no longer willing to pay what the music industry asked them to. Instead of dealing with this new reality, however, the music industry started to sue its own customers in a desperate attempt to turn back the clocks. Given that streaming services pay artist only about $0.0033 per song, the agitation of the music industry over “unlicensed” uses is hypocritical, in Mr. Boehmer’s view. However, while he did not envision a bright future for the current distribution model for commercial music, he concluded that there would always be musicians and people who would like to listen to them. In that spirit, Mr. Boehmer ended his speech with four recommendations to improve the management of authors’ rights in Europe:
- Create one single, digital administration center for authors’ right in Europe. Further, Author’s rights should be rigidly separated from all the other, neighbouring rights, which are fundamentally economic rights.
- There should be one single Authors’ Right for the entire continent. The starting point for such a right should be the Berne Convention, which limits the definition of rights owners to creators.
- Collecting societies have to respect the provisions of the Berne Convention and protect final and complete “works of art”, not tiny fragments such as samples used to create new works.
- Collecting societies should only collect royalties for commercial uses of music. Uses with no commercial intention such as those by schools should never require payment.
The next speaker was Zdenek Matusik, from the Association of Library and Information Professionals of the Czech Republic (SKIP). His presentation focused on the interaction between copyright and out-of-commerce works (OCW), including orphan works. OCW are works, which the rightsholder has decided are no longer commercially available regardless of the existence of library and privately owned copies. While there are successful initiatives in countries like France to digitise 20th century OCW, there is currently no comparable model available to Czech libraries.
The recently adopted Directive on certain permitted uses of Orphan Works is a step in the right direction. However, as Mr. Matusik argued, its limited scope will not facilitate mass digitisation of Orphan Works. Also, as it does not cover photographs, memory institution will not be able to digitise their massive collections of orphan photographs.
The fundamental question is: How can libraries decide whether a work is out of copyright? The financial and other resources required under the current procedure are prohibitive to the digitisation of the vast majority of works – a tragedy for our shared cultural heritage, as Mr. Matusik pointed out. He noted that the libraries recently had a meeting with the other stakeholders in the Czech Republic to address the OCW problem. The idea was simple: all works would be covered by extended collective licensing and made available via “access terminals” in libraries and education institutions. As a safeguard measure, authors could always decide to opt-out of the system. The problem, however, as Mr. Matusik explained, is that this model does not really make the works publicly accessible but limits its use to a small number of terminals.
Archiving the Internet for Future Generations
Next up was Michal Pupcsik, project leader of Webarchiv.cz at the National Library of the Czech Republic. Webarchiv.cz is a joint initiative of libraries and universities to create a historic record of Czech websites. While Webarchiv.cz would like to archive all Czech websites, be they commercial or non-commercial, the project faces resource constraints, which is why they have established a process to determine the importance of websites.
At the beginning, it was challenging to establish the necessary licensing agreements, to get the project off the ground. For example, it took up to five years to enter into licensing agreements with certain Government agencies. In this context, Mr. Pupcsik commended Creative Commons licenses for having greatly facilitated the licensing process. However, as he noted, it can sometimes be difficult to confirm whether a website is under a Creative Commons license and manual check-up is often required. Ideally, in Mr. Pupcsik’s view, there would be mandatory Print Act in the Czech Republic to facilitate archiving of websites, as is already the case in certain other countries.
Questioned on how they dealt with publishers who wanted their content to disappear, Mr. Pupsik replied that they would always honor requests from rights holders to remove content.
Copyright vs. Access to Information in the Digital Age
Petr Jansa, a Copyright lawyer and the founder of Creative Commons in the Czech Republic, followed up with a discussion on the role of Copyright in the digital age. He commended the National Library for promoting open standards and deplored the challenging legal environment in which it currently found itself, a system that took him several years to understand as a lawyer.
In Mr. Jansa’s view it is paradoxical that Internet users have gotten used to finding all the information they seek with the click of a mouse – despite the underlying complexity of the copyright system. “As an entire generation is growing accustomed to new ways of interacting with copyrighted works, such as sampling and remixing, the copyright system will ultimately need to accommodate those uses”, he observed, “unless we want to live in world where everybody who knows how to use the Internet is a criminal”.
Mr. Jansa agreed with Mr. Boehmer that authors should be put at the heart of the copyright debate as they contribute the most value of the involved stakeholders. “Although”, he cautioned, “it should be acknowledged that they, too, build upon past works”. According to Mr. Jansa, going back to a registering system for copyrighted works, similar to the current patent system, would help cure many of the ills of the current system, such as the OCW problem mentioned by Mr. Matusik. This would also be where Creative Common licenses could play an important role, he concluded.
Asked about how to simplify the current system, Mr. Jansa suggested going back to the principles of the Berne Convention and finding the best way to implement them in the current environment. In other words, “let’s defend principles, not interests”.
A representative from the Czech Pirate Party stated that in his view, and based on our experience with copyright, policy makers would be ill advised to assume that copyright promoted creativity.
Mr. Jansa supported this view and noted that there was creativity before there was copyright. “If you look at how the masterpieces by the likes of Mozart were developed, they dependent on rich people to fund them.” According to Mr. Jansa, we have replaced this system of patronage with a new form of dependency. “Maybe in the future, we will be able to develop a system where authors neither need hit men, nor patrons to support them.”
A representative from the Czech chapter of Creative Commons observed that while the title of the event was about how copyright could drive creativity, all the speakers pointed to areas where copyright constrained creativity and access.
At this point, Mr. Roman Strejcek, the Chairman of the Board of Directors of the Czech Collecting Society OSA, intervened in the discussion. He noted that he had long be critical of the evolution of the Copyright Act. However, while some basic principles had been lost over the years, one fundamental truth remained: Authors cannot protect their works individually. According to Mr. Strejcek, the advent of copyright was liberating for authors. While they were previously dependent on rich people, they now had a the equivalent of a labor code. Like other speakers before him, Mr. Strejcek stressed the fact that the author is at the very beginning of the value chain. Without the composition, none of the middlemen would exist. “Unfortunately”, Mr. Strejcek continued “copyright became more and more about protecting the investments of large corporations over the years and the authors were increasingly pushed to the side”. On the question of royalties for artists, Mr. Strejcek admitted that royalties of under 10 per cent on CD were low. However, he drew attention to the fact that this number was in proportion to original selling price. So if price dropped, the author would still get the original royalties.
Opportunities and Challenges of the Czech Copyright Review
The last speaker to take the floor was Jiri Cermak, a copyright lawyer from Baker & McKenzie ’s Prague office. Mr. Cermak started with a brief summary of the amendment process for the Czech Copyright Act, which was currently underway. He noted that among some of the expected modifications was an extension to the Internet of collective management through compulsory licensing, although certain areas such as streaming services would not be included. Mr. Cermak was skeptical whether that was a good approach and noted that authors may feel restricted in an opt-out model.
With regards to the reproduction of works for personal use, Mr. Cermak did not expect the amendments to change the current regime considerably. The Copyright Act contains a specific list of copyright exceptions whose limits are set out by the three-step test of the Berne Convention. The problem with this approach, according to Mr. Cermak, is that an exhaustive list can never cover all the legitimate uses of a copyrighted work. For example, whistling a pop song would not be covered by an exception so in principle, one could argue that a license was required. This is why Mr. Cermak was in favor of a more flexible model for copyright exceptions such as the US fair use doctrine.
Debate on the Role of Copyright
The presentations were followed by an open, spirited debate among the attendees which broadly touched on issues such as the general objectives of copyright, its current state and possible improvements. Some of the highlights of the debate are summarized below.
Mr. Pavel Zeman, Head of the Copyright Section at the Ministry of Culture, joined the discussion and noted that in his view, Authors Rights should first and foremost protect the rights of creators. He observed that while one used to require a publisher to sell a book, people now were able to do this over the Internet at almost no cost. In this context, he acknowledged the value of Creative Commons licenses to help provide authors with more options to make their works available. However, with regards to the current debate on educational uses and text mining, Mr. Zeman noted that he did not share the view of other speakers who suggested that scientific authors should have less protection than others. In his view, every author should be attributed the same rights in his or her intellectual property – a right that shall not yield to other legal principles such as the right to education.
Mr. Cermak said that he disagreed with the view that all authors wanted to own their works. While all artists want to be creative, not everybody felt that they were being oppressed by the music industry.
A representative of the recording industry noted that she was opposed to the idea that authors were being enslaved and pointed out that they were free to choose between traditional copyright protections and alternative models such as Creative Commons. She raised concerns that some politicians do no longer seem to understand the value of copyright and went on to explain the situation of copyrighted works on the Internet with an analogy: As long as there were only few cars and they were all parked in a garage, their was virtually no theft of cars. However, as the cars became many and started to be parked out on the streets, car theft became a problem. She concluded her example by noting that society should strive to protect all cars, including those parked out on the street.
Mr. Jansa replied that he did not think this was an accurate analogy. While a stolen car is gone, an unlicensed copy of a copyrighted work is just that, a copy.
A representative from the Czech chapter of Creative Commons noted that the current model did not put Creative Commons works on an equal footing with other copyrighted works. While he did not think that there was a need to abolish copyright or CMOs, Creative Commons works should be more integrated in the system. “For example”, he asked, “if we play an Internet radio station using Creative Commons works, do we need to pay royalties?”
According to Mr. Streject from OSA this depended on the circumstances. If a user can prove that all works were made under Creative Commons licenses, CMOs will not claim royalties from an Internet radio station but they need to be certain. As other speakers before him, Mr. Strejcek noted that traditional copyright and Creative Commons licenses did not go against each other. While the car analogy was one way of looking at it, he thought that comparing copyright to labor laws was more accurate characterisation. “One could argue that abolishing labor laws would lead to more employment”, he explained, “but that would not be a sensible thing to do”.
Mr. Boehmer went on to explain what he considered to be one of the shortfalls of Creative Commons licenses: A radio station playing Creative Commons music has already paid royalties under normal circumstances and the creators of those works do not get paid. “In reality”, he concluded, “authors are born into a web of pre-existing systems. This is the problem.”
Mr. Nick Ashton-Hart from the Computer and Communications Industry Association tried to build on the discussion by adding some historical context. Mr. Ashton-Hart, who, as a former manager of featured artists had multiple years of experience with the music industry, noted that the main purpose of the old model was to get the works to consumers. This changed radically with the rise of the Internet, which Mr. Ashton-Hart likened to the steam engine of our times. “Before the steam engine”, he explained, “people in England did not live in a shared time zone. Every town had adopted its own time; partly because of technological reasons, partly because they could not agree.” He encouraged the participants to accept what history told us and recognize that changes will be necessary. While certain types of music would continue to be based around multinational distributors, in his view, everybody would have to be open to find new ways to make a living. “It is important that we work together to develop a new system, one that’s based on the needs of creators”, said Mr. Ashton-Hart, “otherwise, legislators will cease to pay attention to the issue as some point.”
“We can not risk to have a lost generation of musicians because we have not adapted the system to modern realities”, he concluded.
Speaking on the role of CMOs, Mr. Strejcek, noted that Anglo-American authors were currently excluded from OSA’s catalogue. Consequently, if a digital service provider like Google wanted to license in all of Europe, there could turn to one single body. In addition to that, there is nothing that would prevent anybody from slacking a national monopoly. However, in Mr. Strejcek’s view, the oligarchy structure that this could lead to would be even worse for authors.
With this, the final Copyright For Creativity event of the year was history. More C4C events are planned for 2013, starting with the WSIS +10 Review Events at UNESCO’s Headquarters in Paris in February, followed by the C4C event in Warsaw.
Mr. Böhm (1961) is the Director-General of the National Library of the Czech Republic. In the 1990s, he worked as a consultant in several companies and then as a finance manager at Creditanstalt Securities. At the turn of the millennium, he became a finance manager in Ringier ČR, where he was also a Member of the Board. From 2001, he successfully managed the company for five years. During the past several years, he has focused on economic consulting, emergency management, and media consulting in the field of printed media and book production. He has a degree from the University of Economics in Prague, and also studied in London. He speaks five languages. His hobbies include mainly literature and theatre.
Konrad is a noted composer of orchestral, dramatic, chamber and electronic music and for 35-years a professor of composition and music history at the Royal Conservatory, The Hague. He has been active in the authors’ rights movement as a member of CIAM, the international body representing composer-members of authors societies worldwide for 40 years as well many years spent as the immediate past President of BUMA/Stemra, the authors’ society of the Netherlands. He brings an understanding of the changing creative process for composers over recent decades of dramatic technological development and an insiders view of how the digital age has affected the management of rights and what can be done to improve access to works for all whilst ensuring creators’ rights are respected.
Mr. Zdeněk Matušík is Chair of the International Relations Commission, Association of Library and Information Professionals of the Czech Republic (SKIP).
After holding positions in a museum and in a the editorial office of a magazine, he has worked in the National Library of the Czech Republic in the public services section since 1990. Mr. Matušík focuses on the legal issues, especially those concerning copyright law, connected with the provision of library and information services. He is also a member of the Association of Library and Information Professionals of the Czech Republic (SKIP) and is a correspondent member of EBLIDA.
Michal Pupcsik is Project Leader at the Webarchiv.cz, National Library of the Czech Republic. Born in Kladno in 1974, he currently studies information studies and librarianship (INSK) at the Faculty of Arts of Charles University in Prague. He has worked in bank IT (KB, IPB, ČSOB, ČMSS) since 1995, focusing primarily on development and administration of intranet systems and DMS.His interest in books and his need to archive everything brought him to the field of librarianship and to work in the web archive of the National Library of the Czech Republic. Hobbies: collector; currently building a private regional archive of old photographs and other memorables.
Petr Jansa is Copyright Lawyer and founder of Creative Commons CZ. Mr. Jansa is a lawyer and is most interested in how law forms public space. He encountered the limits of the existing copyright system when working on the Czech version of the Creative Commons license. He has obtained a deeper understanding of how much we deform our common space with law thanks to his cooperation with
Transparency International in the field of good administration and anti-corruption efforts. He currently works as a consultant as well as on his own projects.
Jiří Čermák heads the Intellectual Property Group of the Baker & McKenzie’s Prague office. He has authored and co-authored a number of studies and publications, including Internet and Copyright Law. Mr. Čermák serves as vice president of the Czech IT Law Society, and is presently an arbiter for the Alternative Dispute Resolution for .eu domain name disputes. He is also admitted in the Czech Bar Association.
Jolana Voldánová, Moderator, Czech Television
Jolana Voldánová has been a news anchor and worked for the News Editorial Office of the Czech Television since 1993.
She previously worked for the Czechoslovak Radio from 1989-1992. Her television career includes a number of formats and shows: Daily News and Evening News (1993 – 1994), “21” (1994) and News and News Plus (since 1995).
Ing. Roman Strejček is Chairman of the Board of Directors of OSA. He joined OSA in August 2005 as head of the broadcasting and on-line media department. He was appointed as a member of the board of OSA in December 2006, and has been chairman of the board of OSA since October 2007. Before joining OSA, he spent five years in the Swedish company Plus Licens operating in Central and Eastern Europe and in Scandinavia. This company dealt with licensing of TV and film products, fashion and sports brands in the area of promotion, broadcasting, and publishing. Education: graduated from the University of Economics, Prague with an Ing. degree