This morning was a very welcome change from the old, monotonous rat-race of chasing after something exciting by scrolling through a slew of boring press releases and industry news. Instead of visiting a museum to view the artifacts and remants which helped pave the way to our modern-day postindustrial society, I simply swung my posterior onto the saddle of the bicycle and cycled ten minutes from home to the civil law department of the Institute for Information, Telecommunication and Media Law (ITM), which is headed by one of Europe's major-league boffins in that field of law, Prof. Dr. Thomas Hoeren.
Professor Hoeren once studied law and theology back in the roaring 80ies, when the Berlin wall stood firm until it started shaking and people could become famous despite haircuts that invoke memories of chthonic barbarian civilisations in young people. He has since become a scientific counsellor of the German domain name body DENIC, Legal advisor of the European Commission (EC) and a member of the Task Force Group on Intellectual Property of the EC, amongst a lot of other things.
After the whole commotion and kerfuffle caused by the so-called Telecoms Package and the writ floating around proposing an extension of copyright terms (which we reported on here and here), it seemed obvious to send an email to one of Europe's leading boffins and ask him for an interview - especially considering he works and lives in the same town, namely Münster (which was bestowed the great and holy Livcom Award for being the most liveable community of its size worldwide).
The problem with reporting on a day-to-day basis is trying to keep tabs on relevant issues, such as the whole EU kerfuffle. Questions rise and merely reading the releases of civil rights groups does not answer all of them, even if the work done at La Quadrature du Net and Open Rights Group is highly laudable. So I took all open questions to Mr. Hoeren, a very likeable, open and friendly fellow, who was kind enough to answer them.
Question number one is the topic which has been causing most headaches, namely the proposition of cutting people off of the internet once they've been repeatedly caught red-handed downloading supposedly illegal files. Graduated response, as the French call it, or a three-strikes-and-you're-out rule, is, according to Prof. Hoeren and put simply in other words, a complete load of rubbish. There is no legal precedent nor tradition for any such law in Germany, or in Europe. He stated it was merely wishful thinking. The steps indicated by the French Olivennes agreement have not even yet been reviewed by any advisory legal body of any sort. In short, three-strikes is an idea which will find no place in European law, it would even be unconstitutional in most countries, as well as being totally impractical. After all, how on earth is any state going to exercise control on any condemned, hindering from laying their grubby, criminal hands on a PC connected to the net?
The other question concerned what the EC deems criminal - or, in this case, the IFPI, which he didn't hesitate to call a bunch of bullies. Apparently, IFPI believes any sort of copying is illegal, whereas other European countries deem the copying of legal content for private use legal. German law, for instance, allows for seven analogue or digital copies, which can be freely distributed between son and dad, or girlfriend and boyfriend. English law does not have such a provision. It is thus not surprising that the bully entity IFPI - which is based in England - thinks the same rules apply everywhere else, which is not the fact, or have to be changed as they think it'd be really cheesy to have things that way.
Seeing both questions in perspective, Prof. Hoeren asserted that the IFPI has been extending its eldritch tentacles into the European Parliament and has kept on bashing the term 'geistiges Eigentum', or 'intellectual property' into the vulnerable heads of politicians. The term 'intellectual property' is in itself erroneous, stated Hoeren, who said it was a term used in the middle of the 19th century in Prussia. A few years after it was introduced as a sort of model concept, the term was changed into 'immaterielles Güterrecht', which roughly translates to 'property law of intangible assets'. Ownership of ideas or intellectual achievement is, after all, totally impossible.
However, the term has snaked its way into the minds of the political classes, after it was repeated by organisations such as the IFPI enough times. Non-binding proposals and agreements, such as the Olivenne agreement, are apparently part of a current wave carrying the murky fingerprint of the IFPI. What was most unsettling however, was Hoeren's statement that IFPI is involved in writing up laws. In other words, IFPI is allowed to term proposed EU laws and has access to them, way before they hit the public sphere.
A public body letting an industry organisation draft laws is unheard of. He didn't say to what extent the IFPI spewed their ideas into the Telecoms Package, but Prof. Hoeren did say the latest proposal coming from the offices of Charly McCreevy, namely the proposal addressing the extension of copyright terms of recordings artists (which can be read here) is IFPI lingo. Whilst Hoeren accepted that it is sensible that musicians (or artists, as they are now called) get some sort of extension, he stated it is ridiculous that producers be part of the equation. According to him, such proposals are the writ of the IFPI.
Luckily, such proposals are thrown out in the course of the decision-making process. At least let us all hope they are when the Telecoms Package and related proposals stand up for final vote. X