There has been much controversy surrounding the European Union copyright directive, especially as this relates to the music industry. There have been several arguments that these laws are inadequate when taking into account new technological developments, especially with regard to the Internet. Indeed, when the media industry in general is taken into account, the rapid developments require adjustments in legislation. While the copyright directive is an attempt at such adjustments, it however falls short of the all-encompassing clarity required in specific situations, such as certain cases within the music industry.
The Changing Music Industry and EU Competition Law
Current digital technological advances have significantly changed the music industry in conjunction with other media. Digital technology has made possible the sale of music, on occasion combined with other creative media such as film and text, in a variety of different forms. Previously music was for sale exclusively in the physical form of tapes or CD's (Pereira). The fact that music is now also available as digital data, means that a large amount of users have access to music through these networks.
The problem for music producers and sellers, according to Pareira, is that music distribution in digital format is expensive in terms of infrastructure and conversion equipment. There is however also a need to distribute the product in as many ways as possible to as many people as possible in order to ensure the largest possible sales figures. This is why mergers such as joint ventures such as Vizzavi, and mergers such as the one of AOL and Time Warner occur. Through mergers, companies possessing software can join with large creative companies in order to distribute and profit from the music industry. This is where the EU Competition law plays a part. With regard to this, Pareira identifies three issues that impact the music industry when mergers between large companies such as the ones above are considered in terms of competition law. These include the gate-keeper issue, the source issue and the path issue.
The Gate-Keeper Issue
This issue relates to technology available to a certain company that allows this company to exercise a significant amount of market control and access. In terms of the music industry, mergers between large technological and music companies potentially possess a large amount of the Internet market. The technology to produce and allow users to access recorded music can potentially be in possession of a few powerful companies, allowing them control of the entire market. All other competitors would then be obliged to format their product according to the controlling company's standards. A single controlling entity in the market would then lead to price inflation and encourage piracy problems.
The Source Issue
At the heart of the source issue lies several copyright issues. According to Pareira, this is an issue giving the producing country control of corresponding copyrights, and thus prohibiting competitors from selling the same products, or requiring fees for selling these products. IOL/Time Warner for example, while possessing one of the largest music libraries in the world, would also be able to restrict access to this library by charging membership fees.
Thus, the simultaneous notification of the project merger between EMI and Time Warner led to the preferential access to EMI's music copyrights by AOL/Time Warner. This meant that the new entity would be entitled to half of all the music available for online sale in Europe. A similar problem is encountered with the company Vivendi, a leading company in multimedia and telecommunications products.
When merged with Seagram, the controller of the Universal music and film business, the combined company would not only have the second largest film and TV library in the world, but also occupy the number one position in recorded music. Furthermore concerning the issue of music rights, Vivendi and Vodafone have a joint venture running the Vizzavi portal, which was reported to the Commission only months before the Vivendi/Universal merger (Pareira).
The Path Issue
The path issue relates to the connection between the company and the customer. The traditional path to the customer is the physical distribution channels through which CDs and other media products are made available to the retailer and then the customer (Pareira). Distribution channels more recently developing as a result of new technology include satellite broadcasting, cable networks, mobile telephony and the Internet.
As with the above-mentioned issues, such technology lends itself to monopolizing practices by owners. The above-mentioned Vizzavi portal is an example of this. Vodafone's market position for mobile telephone Internet access was significant in a number of European countries. Their path to existing and future customers was therefore already established. Canal+, another partner in the new entity, again was the owner of a solid path for TV set-top boxes, through which Internet access was provided. The issue related to whether these customers could be migrated to the new entity, which would then be the exclusive providers for all these customers. Furthermore the question concerned the Universal music library, which would significantly impact the online music market (Pareira).
The problem with market domination is that it encourages high prices in both licensing and distribution, inflating music prices for the consumer. This in turn encourages piracy practices, which is becoming increasingly simple as technology evolves. The argument is then not against the copyright directive as a principle, but against the way in which it has been instated.
Problems associated with the EU Copyright Directive
According to Hugenholtz, many of the legislative acts under the EU copyright directive are vague, apart from the fact that some of them no longer apply in the light of current legislation. The reason for this is mostly the pressure in terms of time imposed upon the European Parliament and the Member States to finish the legislative process as soon as possible. Consequently the many controversial issues relating to copyright and its related issues did not receive the attention they should have (Hugenholtz).
Although the purpose of the Directive is repeatedly stated as increasing legal certainty, the opposite is actually the case. Hugenholtz cites article 6.4 (1) as an example of this. Although this article is meant to reconcile rights owners and their interest with the interest of users, the vagueness of the article does not appear to ensure the rights of anybody. Indeed, there appears to be an increased amount of uncertainty as opposed to the idealized certainty in the initial goal. Indeed, the legislation and its exceptions appear to create a singular amount of opportunities for abuse and misinterpretation. Furthermore there is a list of no less than 20 exceptions to the copyright law. Adding to the confusion, these exceptions are furthermore optional rather than mandatory, allowing Member States to pick and choose which to implement and which to discard. This implies that there is little change to the law already in place, which has further implications for the music industry and its copyright issues. Copyright holders could for example, as the cases mentioned above, charge exorbitant prices for their products, whereas piracy could be justified with the excuse of vague legislation.
Copyright Laws and the Digital Age
Hugenholtz further raises the issue of the necessity of finite limitations as applied to the infinite number of possibilities created by digital technology, as seen above. The information industry is dynamic and ever-changing. To create a set of rigid rules for the future appears to be an ill-conceived endeavor. The discrepancy is between the nature of inflexible, technology-specific legislative language and the dynamic nature of Internet technology that conceives of new business models and uses nearly on a daily basis. Indeed, the very slowness of the legislative process precludes compatibility with such a rapidly developing medium as the Internet.
A further shortcoming is that the Directive states only the obvious in unequivocal terms. Article 2 for example defines the broad reproduction right, which is counterbalanced by the temporary copying exemption in article 5.1. Here a large amount of time and energy has been invested in producing a law relating to the fact that caching and browsing could be done without prior authorization (Hugenholtz). Similarly unnecessary legislation is the right of communication to the public prescribed by article 3, and the community exhaustion rule of article 4. Both of these are not new legislation, and could have been spared the public in light of other, similar legislation already passed, such as article 8 of the WIPO Treaty and the Trademark and Computer Programs Directives. The latter is still controversial, and the time used to create a similar rule could have been put to better use in an attempt to clear some of the vague issues related to existing legislation. As it stands, the new legislation merely perpetuates controversy and uncertainty, as already mentioned.
Thus, the most important problems relating to copyright in the digital environment have been left unadressed by the Directive claiming to have as its purpose that very thing. Crucial questions for example raised by the Green Paper include applicable law, administration of rights, and moral…