Why confusion about copyright law is a consumer issue
Five years ago, the European Union’s Copyright Directive (EUCD) finally, after four years of negotiations, passed the EU’s legislative process. Since then, almost all EU member states have devised and adopted laws to – more or less – implement the directive’s provisions into their respective authors rights or copyright codes (with the exception of France, Spain and the Czech Republic). Following its approval by the Council of Ministers, the chairman of the European Commission's Legal Advisory Board Taskforce on Intellectual Property – among many others – criticised the EUCD for its ambiguity: "It does not increase ‘legal certainty’, a goal repeatedly stated in the Directive’s Recitals (…), but instead creates new uncertainties by using vague and in places almost unintelligible language"(Hugenholtz 2000). In the case of Germany, these new uncertainties have carried over into the country’s revised authors rights code, which came into effect in September 2003. To give an illustration of what this entails for regular users of digital media and the Internet, I will first provide a case study of the legal implications of file sharing in Germany. I will then briefly explain the role of the iRights.info (cf. sources) as a consumer information portal on copyright issues.

Case study: File-sharing and the law in Germany
Many uses of file-sharing networks are completely legal. Some people know this, some may take it for granted, but to some people this will sound rather surprising. Reading newspaper articles on the topic or watching TV reports, one can certainly get the impression that everything that has to do with file-sharing is so called "illegal piracy". But this is not the case.

Sharing someone’s own works – texts, music, pictures, videos, software, games, animations and so on – is completely legal. Or, to be more specific: It is legal to share works if the person sharing them holds the rights to these works. For example, more and more companies put files on the web to share as well: music for promotional purposes, movie trailers and the like.

In addition to works someone owns, sharing is allowed for works the copyright holder allows to be shared – this sounds obvious, but one has to be aware that the rights holder must specifically assign those rights. This is done quite often, though, i.e. with works under Creative Commons licences (cf. sources), the GPL (GNU General Public Licence) (cf. sources) and many others.

Then there are works in the public domain. An example for this is the Project Gutenberg (cf. sources), where scholars, students, and activists digitize classical texts from Aristotle to Zola and make them available in a searchable database.

In a majority of cases, file sharing networks are used to break the law
Most uses that are actually practiced on today’s file sharing networks are illegal, though. The vast majority of music, films, software, and texts are copyrighted and the rights holders prohibit sharing. Since the so called "first basket" (first round) of the German copyright revision came into force in September 2003 (Bundesministerium 2003), it is illegal for individuals to make available works in a file-sharing network without holding the rights to them – which is the majority of works on file-sharing networks today. So most of the actual uploading being done is clearly illegal under German law.

Downloading still considered legal in Germany by many
Downloading is a different matter, though. If a user in Germany downloads a song from a file-sharing network, it is seen as a duplication – a copy of the song. If this copy is for private use, it is perfectly legal – like copying a CD or a videotape. This permission is granted by an exception to copyright ("Schrankenregelung"), resembling – not equalling – the fair use provision in US copyright law. Of course it is not allowed to sell or lend this copy, because then it would be a commercial use, which is prohibited.

But copying for private use is only allowed if the original is lawful; if the work from which the copy is made is itself "evidently an unlawful copy", it is prohibited. But how can someone tell whether it is evident that this work found on the file-sharing network was produced unlawfully?

This question is very hard to answer. Imagine you find a copy of the movie "Independence Day" on the file sharing network Kazaa and decide to download it. Is this lawful?

It might well be. It has been shown on TV in Germany. So someone might have recorded the TV broadcast on his PC and converted the recording into a digital file. With this he is making a copy for private use, which is perfectly lawful. If he put the file on a file-sharing network, though, he would clearly be breaking the law because he doesn’t have the right to distribute the movie, or to make it available. But someone downloading the file would not be breaking the law, because it was not evident that the copy that was made available was produced illegally. It was illegal to make it available, but the subsequent copying of the file is legal.

The difference between "Independence Day" and "Walk the Line": obvious or not?
Confusing? Certainly, but it gets even worse. Imagine someone finds a copy of "Walk the Line" on a file-sharing network. Is it legal to download it? As we have seen, it would be, if it were not obvious that the copy found on the network was produced illegally. But is it obvious that it is a copy produced illegally? To answer this question, one has to be able to answer the following questions: Has the movie in question been broadcast on TV? Answer: Probably not, it just came out in Germany, it is a big production and in cinemas at that moment. Has it been released for home viewing?

Answer: This is difficult to determine. It is a rather new movie. But then, US movies are often released in the US long before they come to theatres in Europe (i.e., the drama "House of Sand and Fog", which was released in the US on December 26, 2003, came to theatres in Germany on February 17, 2005 – more than a year later. At the time the movie was still showing in German theatres the DVD was already available in the US, where it was released March 30, 2005 (cf. House of Sand and Fog). And if the person planning to download the movie lives in a small city with only one cinema, then she is familiar with the situation that movies come out a lot later there than in Berlin, Madrid, or London. So if it came out in the US a year ago already, it might have been released for home viewing in the US a while ago. Therefore someone could have bought the DVD of the movie, made a private copy of it and put it on the file-sharing network – this way it would be legal to download it.

But what if the DVD is copy-protected? Because of anti-circumvention legislation, it may be illegal to make a copy, even for private use. For one, all these laws are very complicated to understand and interpret, even for legal professionals. Additionally, how would a downloader know whether "Walk the Line" is copy-protected or not? In our sample case, he does not even know whether it has been released on DVD yet.

So after exhaustive and careful deliberation the user decides to download the movie. By doing this, he breaks the law – at least that is what the rights holders say. Because "Walk the Line" has not been released for home viewing to date, the file on the file-sharing network has to be a copy someone made with his video camera in a cinema, and therefore illegal. So the user has not only waited for hours for an abysmally bad and grainy copy of "Walk the Line" to download onto his PC, he also has the studios demanding damages.

iRights.info: A continuing effort needed to inform citzens about copyright issues
The example analysed above shows the complexity of the law and, as a result, the difficulty in understanding and interpreting it. This case can only illustrate the situation in Germany, because EU member states’ jurisdictions differ widely in the concept of copyright and authors rights codes in general and the implementation of the EUCD in particular. Judging on the basis of media reports from different countries, it can be safely assumed that in many cases their situation is comparable to that in Germany.

To expect rights holders to provide balanced information on copyright issues is futile. Various analyses of their campaigns targeted towards consumers (e.g. Spielkamp 2005; Djordjevic et al. 2005) have shown that their only identifiable interest lies in causing fear, uncertainty and doubt in regard to what rights consumers have using digital media, in order to convey the impression that all uses are subject to permission by rights holders.

Impartial information on copyright issues sought by consumers
In Germany, one approach to mitigate consumers’ information deficit is iRights.info , a web site mainly funded by the Ministry for Consumer Protection. INDICARE Monitor readers might already know about iRights by the INDICARE interview with its legal expert Till Kreutzer (Kreutzer 2005). Four part time editors, all specialised on copyright issues in their respective professions (law, art, information science, journalism) compile a wide range of articles illuminating the implications of every day uses of copyrighted works: under what circumstances it is legal to copy CDs, post pictures in your weblog, use samples in your own music, and so on.

The web site currently receives more than 1.500 unique visits per day, showing a high demand for this kind of information. This impression is substantiated by the fact that frequently, people send e-mails to the editors, asking specific questions they do not find answered for in the articles. In these cases, because of legal regulations in Germany, the editors cannot provide legal advice regarding specific cases, but attempt to point to articles and information that should help answer the case in question.
The nature of users’ inquiries so far clearly back the stated assumption about the nature of copyright regulation. Most of them show a helplessness regarding the interpretation of the law when it comes to uses of digital media both in situations where people would like to use digital content and when they would like to create new works.

iRights.info as a pan-European project
Funding for iRights.info will run out at the end of March, 2006. As argued above, the notable deficit of this kind of relevant and impartial information about copyright and authors rights issues for consumers remains. iRights.info will therefore attempt to widen the scope of iRight.info to make it a pan-European project and secure funding from the European Union. In case of an interest in cooperating towards this aim, please contact the author at ms@iRights.info.

Sources

About the author: Matthias Spielkamp is an editor at iRights.info. He publishes in national newspapers, magazines, online publications (Die Zeit, FAZ, SZ, taz, Spiegel ONLINE, Golem.de, telepolis etc.) and his weblog immateriblog.de. He can be contacted at ms@iRights.info.

Status: first posted 23/02/06; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=176