[Ecommerce] Debate on database directive in London

[Manon Ress]

This is from Dr Johanna Gibson at the end of day 2 of the Creative
Economy Conference in London. The Conference is under the name of the
UK EU Presidency, but sponsored by significant industry players,
including Mechanical-Copyright Protection Society (Platinum sponsor),
and gold sponsors Time Warner, British Music Rights, MTV Networks
Europe, and Channel 4. Silver Sponsors include Microsoft, BBC, and
the Arts Council.

her email report is posted at:
   http://lists.essential.org/pipermail/a2k/2005-October/000647.html

SNIP
The debate I wish to highlight was that over the Database Directive. The
representatives from the Commission (DG Internal Market) introduced the
discussion, outlining the uncertainty with respect to the success
and / or
necessity of the Database Directive (particularly after the recent
ECJ cases
of British Horseracing Board and Fixture Marketing; the absence of any
similar sui generis right in the US; and the possibility of compilation
copyright providing the necessary protection). In response to this
uncertainty, a Report is being prepared, and the Commission
representative
set out the 4 options open to be considered in that report, in the
light of
these decisions:

1. do nothing and simply wait to see if further ECJ jurisprudence
clarifies
the scope of the right;
2. considering stakeholders that have an interest in the sui generis
right,
option 2 is to amend the Directive to correct what might be perceived
to be
a defect;
3. withdraw the right on the basis that it has not had its intended
effect
either in law or in terms of economic effect, and allow member states to
revert to the system they had previously (sweat of the brow /
compilation
copyright);
4. look at the viability of the Directive, not simply the sui generis
right,
with a view to withdrawing the Directive.

Options 3 and 4 were met with some heated (almost emotional)
responses from
the publishing industry, or at least, from 2-3 individuals (I say 2-3,
because the 3rd was rushed in during the debate to beef up the
statements of
its colleague). The statements were frequently incorrect as to the
law (for
instance, a statement regarding the absence of publishers' rights) and
claimed that the entire objective of this creative economy conference
was
the generation of wealth for the industry, despite the rhetoric that the
conference was for the generation of diversity in creativity and in
creative
production, of which industry is one aspect. A creative economy surely
depends upon not only rights-holders, but also those with whom the
products
are exchanged. Of note, the publishers also suggested that the database
right does no-one any harm and so there's no reason to get rid of it.
If the
right does no harm (implying that it has no impact on access), then
there
must be no need for the industry to require such regulation (there is no
risk) so one might ask why the right is needed in the first place.
Nevertheless, the publishers' interventions were met with reasoned,
critical, and informed responses from the Commission. When they
demanded to
be heard in the form of any impact assessment, the Commission stated
that
such input would be welcome and that in fact they had been asking for
it for
some time.

The final recommendations of this group (particularly in the
discussion on
piracy) to my mind are somewhat misleading in that they suggest
consensus
where genuinely there was none, and emphasise that the interests at
stake
are those of the rights-holders and industry, rather than the complete
picture of the "industry", as it were, which surely must include the
users /
consumers. I must add, this wasn't my experience in the other groups.
But I
do question the balance in representation of user groups and industry
throughout the conference as a whole. For instance, some groups had
only one
representative invited, whereas individual industry groups had
several (in
some cases a reflection of sponsorship and no more, which is perhaps
disconcerting).

During my participation in the Global Challenge discussions,
consensus was
never effectively sought. This persisted throughout this particular
working
group (quite contrary to my experiences in the other groups) and it was
indeed demoralising. At the drafting of recommendations for this group,
consensus of the group was declared by the Chair on several issues,
when, in
my opinion, no such effective consensus (or anything close) was
reached by
the group during the meeting. When some of us protested the
construction of
consensus, we were told the discussion was closed. The only genuine
consensus was among the industry representatives, at least, as it is
broadly
suggested in the recommendations. And yet it is this "consensus" that
has
been taken to be the relevant and valid one for the purposes of the
recommendations.

Full text of the recommendations of The Global Challenge and each of the
other 4 working groups will be available tomorrow.

Until then.

Jo

______________________________________
Dr Johanna Gibson
QMIPRI
University of London
John Vane Science Building
Charterhouse Square
London EC1M 6BQ
j.gibson@qmul.ac.uk
www.ccls.edu/staff/gibson.html <http://www.ccls.edu/staff/gibson.html>
_______________________________________________

************************************************
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

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