About iRights.info and Till Kreutzer
Is private copying a crime? Is it illegal to copy a CD or DVD? Or to save a movie to my computer’s hard-drive? To answer these questions is more difficult than ever, as changes in copyright law result in a complexity that is hard to oversee even for lawyers – let alone for common users. iRights.info, a new German information portal for copyright law in the digital world, wants to give users orientation.

Till Kreutzer is editor of iRights.info. He is a lawyer and partner in the "Office for Information Law Expertise" in Hamburg. He is heading the copyright division of the "Institute for Legal Issues on Free and Open Source Software" (ifrOSS) and was a member of the working group of the German government for the reformation of the German copyright law (the so-called "second basket").

INDICARE: Mr. Kreutzer, why is copyright becoming increasingly complex and difficult to understand in the digital world?

T. Kreutzer: The reasons are manifold. In my opinion there are two main causes for the increasing complexity of copyright law for the consumer. First, copyright causes new problems for the consumers simply because it concerns them increasingly. In the "analogue age" copyright was of minor importance in private life. Reading a book or listening to a record does not pertain copyright so there was no need for the user to care about legal issues when using intellectual goods in the usual way. This even applied to private copying. The few (technical) possibilities to make private copies like photocopying an article in a library or recording a broadcast with a video recorder were indisputably permitted by (German) law.

The coming of digital technologies introduced essential changes in the possibilities for the user to handle copyrighted goods and in consumer habits. All of a sudden everybody was able to become a distributor and creator of copyrighted works with his home equipment – a normal personal computer was enough. It seems that still even today most users don’t accept or don’t understand that when using the Internet one has to be more aware of copyright issues. There are significantly stricter rules when publishing on the net than for any use in the private environment. For example most users don’t seem to understand that they need permission when publishing other peoples’ works on the Internet even if they don’t pursue any commercial interests. Apparently users think putting pictures or texts on the Internet is comparable to sharing CDs or videos with friends. It is apparently hard to understand for the users that in terms of copyright law the salient point is not the lack of commercial purpose but the making available to the public.

The second reason for the increasing complexity of copyright law for the consumer is a result of copyright law itself. The modification of existing copyright exceptions, the complexity of the new exceptions and the legal protection of technical measures like copy protection and what that means for private copying have led to profound problems of understanding. This happened because the legislator had to make significant compromises in the face of the massive lobbying of the various stakeholders. To give an example: In 2003 the German legislator introduced a new copyright exception that allows the online use of copyrighted works for educational and scientific purposes. Due to substantial lobbying of the film industry, among others, this exception was restricted in regard to motion pictures. This means that movies are not allowed to be used in schools or universities unless two years have passed since their first performance in the cinemas. What the legislator did not consider was that many films, especially those that are of peculiar interest to education and science, are never shown in cinemas, for example documentaries and educational films. The legal position regarding these films, which are indisputably numerous and significant, is completely vague. Teachers would have to be copyright experts in order to be able to decide if the 2-year rule can be applied to these kinds of films as well.

INDICARE: What are, in your experience, the major problems that consumers of digital content are facing today? What are the most common topics discussed in your forum? Where are information gaps most severe?

T. Kreutzer: In my experience, the biggest uncertainties exist in relation to the private copy exception (which is mandatory under German law) and the protection of technical measures (technical copy protection). Both the reasoning behind the legal solution and the legal provisions in detail leave open a large number of questions.

For example it is difficult to explain why the lawmaker decided that digital private copying is still legal but, at the same time, it is illegal to circumvent technical provisions to make the copy. The users – who are generally not familiar with legal issues –seem to think this is a semantic error.

However, there is even more to it: most users are highly alienated by the anti-circumvention rules in general. In my opinion the reasons are obvious. The term "circumvention" for example is so vague that even experts don’t know what it exactly entails. The possible cases are so various and widespread that many questions remain open – even if one does have an idea about the legal issues. Is it illegal to copy a CD that is labelled "copy protected" by using an ordinary CD recorder and ordinary copying software? Am I allowed to make a record of a protected music file by analogue copying? Is it allowed to circumvent CSS when otherwise I would not be able to watch my DVD on my Linux laptop? These are all frequently asked questions. On the one hand it is understandable that the legislator utilized so many vague terms in order to make sure that the law will not be obsolete by the time it is enacted. On the other hand it leads to insurmountable difficulties when attempting to apply this law, specifically for the normal user.

Another point of insecurity for users pertains to questions of filesharing. We have observed that most users assume that "filesharing is illegal". I emphasise this exaggerated, undifferentiated statement intentionally because it reflects the misconceptions regarding copyright very well. Even fairly "informed" users are not aware of the difference between file-downloads, that are in most cases permitted according to the private copying exception, and the provision of files on their hard-drive for others. For users both acts are directly related. This perception can be traced back to the technical environment. In general the default settings of the filesharing client software are set up in a way that every downloaded file will be saved in the "shared folder" which means that it is automatically made available for other users to download. I suppose that most users don’t even know that the default settings of their filesharing software can be changed in order to prevent the distribution of their files if they made up their mind to do so.

The uncertainty about private copying was increased by the amendment to the German copyright act in 2003. In the course of this reform the German legislator adopted a restriction that prohibits even the download (or any other form of private copying) from another filesharing user if the source file (i.e. the file on the other user’s computer) was "obviously illegally created". The legislators’ intention was to prevent illegal copies of protected works from lawful circulation. The new rule is directly aimed to stop downloading in filesharing systems. But the bottom line is that the restriction is useless because in the vast majority of cases the downloader has no possibility of knowing under which legal circumstances the source copy was made. After all, the source might be a (legal) private copy, an original or even produced in a copyright haven, i.e. a country where no copyright is granted. Against this background there is a serious disparity between the uselessness of this rule for the rightsholder to prevent illegal copying and the debilitating uncertainty it raises for the users.

Let me add one point: These observations take into account that our (iRights’) users are quite likely already somewhat informed and already have a clue about copyright issues. The level of awareness of other consumers is pure speculation.

INDICARE: Your portal also addresses creators of content, such as artists, musicians, journalists and producers of amateur content. What are the major challenges they are facing with respect to copyright issues? What are the opportunities for creators?

T. Kreutzer: In our experience, many content creators are confused about their rights and obligations arising from copyright law. Information technology and digital formats make it possible to extract parts of existing works and to rearrange, recombine and readapt them in order to create new work. This technical environment produced new art forms, which came up primarily in the realm of music, for example Hip Hop, electronic music and club music. But film making changed also with the new digital tools. Problems arise when the authors of these works are not familiar with procedures of licensing, with copyright exceptions (like the quotation right) or collecting societies. Conforming to copyright regulations often implies irresolvable problems for the authors of new art forms. The majority of uses do not fall under the known copyright exceptions so that normally every little sample or snippet has to be licensed and paid for. Needless to mention, most amateur creators (who normally don’t earn any money with their work) are simply not able to comply with these requirements. This inadequate balance between copyright protection and the freedom of arts is in my opinion another fundamental shortcoming of today’s copyright regulations.

When we talk about authors and creators the multitudes of private home pages by individuals should be mentioned. Especially the enormous group of amateur website authors is widely confused about their obligations arising out of copyright law. What content is protected? What about using pieces of films or music on my website or in user communities? What rules apply to fan art (for example publishing fan sites that include screenshots of shows or movies or pictures of actors)? These are questions which come up often.

INDICARE: In your view, is today’s copyright still well suited for the digital world? Do we need new legislation to cope with the aspects of digital distribution? Or do we simply need better information of consumers and creators of digital content?

T. Kreutzer: As I already mentioned, in my view the relation between copyright protection and copyright exceptions is out of balance today. Copyright regulations neglect the peoples’ desire for knowledge, which requires access to copyrighted goods. The fulfilment of this public concern is one of the most imperative tasks in the information society. Looking at the present situation and at the current legislative procedures to me it seems highly doubtful that the national and international lawmakers are serious about proposed objectives like the free flow of information or the universal access to cultural goods and information. There are many indicators for this assessment. To give one example: It is evident that copyright exceptions become more and more restricted while the requirements for the protection are decreased and the rights are expanded. I hardly believe this development is adequate to promote the information society.

In fact I think that the basic approach of copyright needs rethinking. New aspects have to be addressed. In an information society it’s not enough to ask how intellectual property can be protected more efficiently. Instead it is imperative to find a way how copyright law can balance all the different interests it affects. In my opinion the attempt to transfer the traditional understanding of copyright to the information society without reconsidering the fundamental ideas has failed. What we need is a new approach that keeps in mind that participation in the information society requires an acknowledgement of strong and coequal users’ rights.

More information for consumers and authors is no cure for this unfortunate state of affairs. Providing information and transparency is important in order to increase awareness of the rights and obligations according to applicable law. In other words: to help the affected groups to make the most out of the given situation. But providing information won’t help to solve the underlying problems.

INDICARE: Why are independent information portals, like iRights.info, so important?

T. Kreutzer: The particular benefit of iRights.info is that we provide neutral and factual information written in plain and generally understandable language. Most of the information about copyright issues publicly available is either written for experts, based on an uninformed understanding or with a tendentious slant. Especially the campaigns of the entertainment industry seem to operate with selective (often incomplete and sometimes even incorrect) information. I assume that they aim to promote the uncertainty of users and to convey the idea that even the legally permitted forms of usage are prohibited and threatened with severe penalties. To counter such misinformation campaigns is an important task for independent services.

The problem is that establishing such services is quite a time-consuming and expensive affair. Therefore we are very grateful that the German government (the Ministry of Consumer Protection) is financing the iRights project for 18 months.

INDICARE: Mr. Kreutzer, thank you very much for this interview!

Sources

Status: first posted 24/06/05; included in INDICARE Monitor Vol. 2, No. 4, 24 June 2005; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=119