‘Towards Flexible Copyright?’

Toespraak | 10-02-2012

Ladies and gentlemen, 

I am very pleased to welcome you all today to The Hague, the international city of peace and justice. Today’s conference, with so many renowned speakers, shows that The Hague is certainly living up to its reputation. I’m also pleased that the conference is being chaired by Arda Gerkens, a fellow former member of the Parliamentary working group on copyright. 

I’m also particularly pleased to be in the magnificent setting of the Peace Palace. This is an epicentre of international law: the International Court of Justice, the Permanent Court of Arbitration and The Hague Academy of International Law are all based here. In this room a new international financial tribunal was recently installed. This tribunal is based on private arbitration by panels consisting of experts in this matter. 

The grandness of the Peace Palace building is anything but traditionally Dutch. And that was exactly what was intended when the decision to build the Palace was taken at the Second Hague Peace Conference in 1907. Its architectural history sounds almost like a fairy tale. Delegates from all over the world felt that the Peace Palace should reflect a belief in the inter-connectedness of the peoples of the world, and their peaceful intentions towards each other. 

It was decided that each nation represented at the Conference should contribute something to the Palace by providing building materials or ornaments. The Palace would then reflect the materials most typical of each individual participating nation.

And that’s exactly what happened: the finest types of wood and the best marble were all sent to The Hague, along with wonderful works of art. Thanks to all these gifts, when it opened in 1913 the Peace Palace contained a large collection of art treasures reflecting the culture of all the participating nations. You can still admire them today. 

Ladies and gentlemen, the Peace Palace will soon be a hundred years old. With a bit of imagination, you can see it as an early example of user-generated content. In other words, an example of how all sorts of different pre-existing works can be transformed into a single new work of art. 

Throughout much of these one hundred years, it was only professional parties that could use pre-existing materials to create something new. Only professional record and film companies could reproduce and process music and images. Nowadays, however, private individuals can use social media such as Facebook and YouTube to share user-generated content on the internet. You’ll probably have heard of Justin Bieber, who became famous when his mother recorded him singing at a young age and posted the film clips on YouTube. A record company representative happened to see one of the clips, and the rest is modern history. Millions of young girls now have a poster of Justin hanging above their beds. 

What happened to Justin Bieber is not unlike what happened to the Dutch girl Esmée Denters. She, too, became famous after posting clips of herself singing cover songs on YouTube. Esmée was spotted by Justin Timberlake and was offered a record contract. Just like Justin Bieber, Esmée Denters has performed on the Oprah Winfrey Show a couple of times. And these days that’s the height of fame.

There have also been big changes in the way we search for and consume information. Back in 1913, people read their news on paper, or looked things up in library encyclopaedias. Later they started watching newsreels at the cinema. These days we often read newspapers online or on a tablet. We use search engines to help us find the information we want. We then often end up on Wikipedia or YouTube. These new applications often involve us using or re-using copyrighted material. Fred von Lohmann from Google, who will be in the discussion panel, knows all about this.

Ladies and gentlemen, the question we’re going to be looking at today is how we can prevent copyright from getting in the way of the creativity of the Justin Biebers and Esmée Denters of this world, or getting in the way of how we now search for and consume information. Imagine if Justin and Esmée hadn’t been allowed to post the clips of themselves singing cover songs on YouTube. Or what if search engines that target the news weren’t allowed to use newspaper reports? I’ll be explaining later on how I see things, but I’d first like to talk a bit about my policy on copyright and my views on some of the European Commission’s initiatives in this area.

As I see it, copyright should help encourage creativity and innovation. It certainly shouldn’t prevent pre-existing work from being used in new creative or innovative applications. On the other hand, however, copyright holders should also be able to protect themselves against infringements of their creativity in a digital environment. That’s because, in the longer run, illegal use of copyrighted material is a threat to creativity and innovation. Authors and artists generating creative and innovative work quite rightly don’t want other people to steal their work. 

One of the focal points of my policy is to increase confidence in copyright. That can be done firstly by making sure that as much of the value as possible that the copyright and related rights represent goes to benefit the individuals who created the original work. We can only increase confidence in copyright if we also increase the confidence in collective rights management organisations. These organisations themselves have an important role to play here. 

Although a lot has already been achieved in this area, we still have some way to go. And that’s why we need stricter supervision of collective rights management organisations, more social accountability and more transparency on money flows. A Bill to regulate this is currently being discussed in the Netherlands. I hope this bill will soon become law. As I understand it, the European Commission will propose a framework directive on collective rights management. I’ll certainly support that. 

Another focal point of my policy is to promote new legal business models for use on the internet. The only way to do this is by getting rid of as many territorial restrictions on copyright licences as possible. I’m very pleased, therefore, that the European Commission has announced plans to issue a proposal for online cross-border licensing.

Ladies and gentlemen, one hundred years ago, silent movies and scratched gramophone records were available to only a very limited public. These days, however, digital technology means music, film and text files can be copied and made public on a massive scale, without any loss of quality. And that’s something to be pleased about. As I see it, work that’s been made available should be able to be used as much as possible. That’s why I support the European Commission’s plan for rules on the use of orphan works. 

Luckily, the European Commission attaches great value to copyright in a digital internal market. I’m sure Maria Martin-Prat will be able to tell you more about that later today, as well as more about the importance for copyright of the European Commission’s strategy on intellectual property rights. 

I’ll now return to the theme of today’s conference: Towards flexible copyright. As I mentioned earlier, the way we now experience art and culture, and share information, is totally different from how things were one hundred years ago, when the Peace Palace was being built. 

And things are continuing to develop at a rapid rate. Internet search engines are becoming ever more advanced. Libraries now look very different from what they were ten years ago. The same applies in schools and universities, where people are making more and more use of multimedia in, for example, presentations that contain copyrighted material, or ‘digital classrooms’. The number of interactive platforms is also increasingly rapidly. Earlier on, I mentioned sharing user-generated content. Social media are making that easier and easier. 

Jonathan Griffiths will perhaps explain later on today how all these developments can help citizens to exercise their basic rights to freedom of expression and freedom of information in more and more different ways. I see this as a development in the right direction. We should be encouraging it as much as possible. 

The big question, however, is whether copyright law currently provides enough opportunities to allow an effective response to these technological changes and other developments in the future. In my view, this is particularly relevant in the case of the closed list of exceptions to copyright in the European Information Society Directive. These exceptions are designed to allow new products and services to be developed through creative or transformative use of copyrighted work. They also allow copyright to be restricted in the case of work used for educational purposes, in academic research or in news reporting, as well as work used for libraries and archives. 

New legislation needs to be carefully drafted. That takes time. Certainly in the Netherlands, but also – and even more so – at a European Union level. That’s because so many stakeholders are involved in drafting legislation in Brussels. That means there are far more views to take into account. That’s not a bad thing in itself as if new legislation is to be effective, it has to have the broadest possible support. But that means it’s often impossible to respond to developments in technology quickly. 

Looking at the closed list of exceptions to copyright from this perspective, and knowing that technology is developing faster and faster, I believe there’s a risk that the list of exceptions will be unable to keep pace with reality. And I’m hearing these noises from various angles. 

Last year the European Parliament published a ‘Working document on copyright in the music and audiovisual sectors’. In this it called for research into how to make it easier for copyrighted material to be re-used creatively. I’m very pleased, therefore, that today we’re also able to welcome Marietje Schaake, a member of the European Parliament, as I know that copyright law is one of her special fields of interest. 

You’ll probably have guessed by now that my preference is for more flexibility in the system of exceptions to copyright. As I see it, copyright needs to offer scope for effective, creative and innovative use of new technological developments. One of the important issues in this respect is how we can guarantee that copyright will keep up with reality and developments in technology.

The follow up of the Commission’s Green Paper on opportunities and threats in online distribution of audiovisual works is an excellent opportunity for a frank and honest discussion on how we can achieve that. 

In my view, now is also a good moment to put the need for a review of the closed list of exceptions onto the agenda. I hope that the Commission will do that, and also indicate the direction it is seeking to move in. 

The digital world is a cross-border world. That’s why I’d ideally like to see a pan-European system of exceptions to copyright that also allows scope for future developments. I realise that a lot of water will still have to flow under European bridges before we can reach a pan-European compromise. In the meantime, I am in favour of initiatives at a national level as, ultimately, these will benefit the discussions at a European level. 

Maybe people were thinking along the same lines in the United Kingdom. In 2011, the Hargreaves Committee report concluded that “many benefits could be achieved by taking up copyright exceptions already permitted under EU-law and arguing for an additional exception”. On the one hand, this additional exception needs to create scope for future developments in technology. On the other hand, however, it shouldn’t undermine the position of copyright holders. I’m sure Edmund Quilty will be able to tell you more about the British government’s response to this report.

The Netherlands, too, has been hard at work. My Ministry, with the help of the Ministry of Education, Culture and Science, carried out an in-depth survey among authors and artists to find out their views on the various opportunities and limitations of copyright in the digital era. This survey found that young creative people are using social media more actively, and see more opportunities for digital distribution and exploitation. They often also make creative use of other people’s work, and in turn have fewer objections to other people using their work. 

The survey also found that older authors and artists are worried by digital developments. Probably because they often receive more copyright fees than their younger counterparts. I hope to be able to take away their fears. A more flexible system of copyright exceptions, and one that is more fitted for a digital environment, must not be allowed to undermine the position of copyright holders. That’s a very important basic principle we need to keep in mind at all times. I’m trying to do that in my policy on copyright, which is designed to provide proper and effective protection for copyright holders. 

Ladies and gentlemen, I suspect that a system of flexible exceptions to copyright will make some of you think of the system of ‘fair use’ that exists in the United States. That system is not without its critics, which I’m sure Mark Seeley and Fred Von Lohmann will tell you more about. As I understand it, this criticism relates mainly to a lack of legal predictability in the system, largely because of the considerable discretion for courts to decide what is and isn’t protected by copyright. And, as a result, neither copyright holders nor users can be sure where they stand in law. 

I expect that Valérie-Laure Benabou will illustrate how, for some people, these fears of a lack of legal predictability are one of the main reasons why they are critical of efforts to achieve a more flexible system of copyright exceptions in Europe. I’d like to emphasise that I, too, see legal predictability as very important. My view is that we shouldn’t be seeking to copy the American system of fair use. But experience there can serve as valuable information and inspiration for us, both the criticism and obviously also the advantages of that system. I’m convinced we can combine both elements in seeking to find the right solution for Europe. 

I’ve asked the State Committee on Copyright – many of whose members I’m pleased to see here today – to examine the opportunities, at a national level, for a more flexible system of copyright exceptions that would also work in a European context. The report by Professors Hugenholtz and Senftleben on ‘Fair Use in Europe. In Search of Flexibilities’ suggests there’s scope for this within, for example, the exception that the Information Society Directive allows for quotations and parody. Later on today, the two of them will explain this conclusion in more detail.

The Dutch Ministry of Economic Affairs, Agriculture and Innovation is currently investigating the economic aspects of a system of flexible exceptions to copyright, or the lack of it. I very much support this investigation as it will help us improve our efforts to tailor copyright to the needs of the market and developments in technology. Copyright law has got to be made fit to deal with future developments.

Ladies and gentlemen, it’s now time for me to come to a close. We’re obviously going to have to proceed very carefully in any changes we make to the existing system of copyright exceptions. It’s essential for us to have a proper understanding of all the stakeholders’ interests and to take note of expert views. 

Today’s conference is a fantastic opportunity for us to do this, with so many stakeholders and experts together in one place. I would therefore like to wish you all a fruitful, informative and enjoyable symposium, and I look forward to hearing your ideas and suggestions.