Copyright Under a Magnifying Glass: Thought Provoking Ideas Internet Society

29 September 2011 - A Workshop on Other in Nairobi, Kenya

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Full Session Transcript

September 29, 2011 - 11:00 am

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This text is being provided in a rough draft format.  Communication access realtime translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.


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>> CHRISTINE RUNNEGAR: Good morning and welcome everyone to “Copyright under a magnifying glass; thought provoking ideas”, a workshop co-organized by the Internet Society and the World Intellectual Property Organization. I’m Christine Runnegar, Senior Policy Advisor with the Internet Society. I will be your moderator today, and very importantly, a strict timekeeper. Our remote moderator is Marie Casey, Internet Society Returning IGF Ambassador. The Twitter hashtag is #igfcopyright.


 We’ll start with a very brief opening statement from our co-organizer, WIPO, quickly move into a rapid-fire Q&A with our distinguished experts and then bring you in for a broader discussion later.


Time is short so let me introduce our experts (in alphabetical order).


Pedro Less Andrade has too many positions to list now. So, I’ll mention one Senior Policy Counsel at Google Inc. coordinating Google’s Global Internet Governance efforts and Public Policy and Government Affairs for Spanish Speaking Latin America.


Paul Brigner is Senior Vice President and Chief Technology Policy Officer for the Motion Picture Association of America. Pauls helps drive the MPAA’s strategy on key technology issues impacting the protection of IP.


Stuart Hamilton, Director of Policy and Advocacy at International Federation of Library Associations and Institutions, real ‘librarian’, part-time podcaster and long-time music addict, wants everything on the Internet right now and is even willing to pay for it, if people actually let him.


Malcolm Hutty is the Head of Public Affairs for LINX, the London Internet Exchange. LINX is among the worlds largest IXPs; just this week it achieved a "personal best", carrying more than 1 Terrabit per second of Internet traffic for the first time.


Malcolm has been with LINX for more than eight years working on public policy issues that affect LINX's members, both major network providers and other types of Internet intermediaries. 


Kurt Opsahl is a Senior Staff Attorney with the Electronic Frontier  Foundation, a non-profit civil society organization dedicated to defending citizen rights in a digital age.


Karine Perset, economist and Internet policy analyst at the OECD, an inter-governmental organization with a focus on economics that is dedicated to helping governments develop better policies for better lives. She works in the area of information and Communications Policy.


Shane Tews is the Vice President for Global Public Policy and Government Relations for VeriSign, Inc. VeriSign operates intelligent infrastructure that enables and protects billions of interactions every day across the world's Internet Infrastructure. VeriSign operates the constellation of servers that run the  .com and .net domain name systems.


Victor Vázquez is now in charge of the Digital Future Project of WIPO, which looks at the interface between technology and Copyright and explores different ways to facilitate the diffusion of creativity in the digital environment. Before joining WIPO he worked in the Ministry of Culture of Spain.


Unfortunately, Sisule F. Musungu was not able to be with us today.


Over to you, Victor.


>> VICTOR VAZQUEZ LOPEZ:  That copyright is very necessary.  It is necessary to develop consensual approaches through infrastructure and technology to facilitate the diffusion of creative content of the Internet and I would like to examine some of those approaches in this five minutes ‑‑ five minutes.  I have grouped them in three different areas.

So as regards the development of infrastructure for creativity, we are engaging a focus on registration and recommendation.  We are looking at technologies that facilitate registration, location and preservation of content and the understanding that in the Internet, there's an overwhelming flow of content, and an increasing need to identify and locate that content.

I think Marybeth Peters, the Former register of the US Copyright Office in the US, is the main issue, that of the identification of works and right owners.  So we are developing actions in two different fields in regards to public documentation and private registration and documentation.  On the first field, we are developing a survey and voluntary registration on the deposit systems, the legal deposit systems, it's already been published on the Internet.  It has been developing corporation with Member States of WIPO and it looks especially to the adaptation of public registration to the digital age to the issue of forefront works and public domain.

We have also developed at the request of Latin American countries an automation system for the recordation of the copyright that's been implemented in many copyright offices in Latin America and we make available that software freely to governments in the region.  In regard to private registration and documentation, we are engaging a very big survey of private copyright documentation, systems and documentation.  This discovers two parts.  The first is collective management documentation in all sectors and for all donors and the second part of this survey covers private registration systems, including initiatives such as those developed by creative groups.  This is developed by Professor Rikofi and it involves a researcher from Kenya by the way.

It will be showcased at a conference that will take place next month in Geneva a conference on copyright documentation and infrastructure, and it will be open by the director of the Library of Alexandria, and some of the panelists at this workshop will be speaking at that occasion.

A second area of focus for us in the field of infrastructure for creativity is the international music registration.  There's the need for information is even more acute in the music sector due to the fragmentation of the market and the multiple layers of ownership, and even if there's a great sophistication in collective management, that is development, and there's sufficient communication among those collective initiatives.  So we have launched this international music registration as stakeholder dialogue to analyze the best approaches of looking at the best sources of information to help them copyright their information and help users to rapidly locate and pay for the content they wish to use.

And at present in the IMR, we are scoping a study to view the existing databases to also look at what are the demand of the market and the industry and thirdly, to reach the gap between the existing landscape and what is demanded by the ‑‑ by the right owners.

More important ‑‑ very importantly also, there's ‑‑ there's also in WIPO activities infrastructure for beneficiaries of limitations and exceptions, specifically for visually impaired persons.  The visually impaired persons initiative, developed by WIPO, it focuses on a platform to facilitate information to access by visually impaired persons and it has two components.  A component on trusted intermediaries that allows the publishers to serve people with disabilities and another focus on the publishing processes.  So the publishers are able to develop from the beginning their titles in a format that is accessible to visually impaired persons.

A second block of activities that we are developing relates to digital management, effective management of rights, and it has two big areas.  One in regard to awareness raising in licensing.  We considered that the Internet has the capability to enhance traditional licensing because it enables to locate easily the right owner and the user.  It enables a platform for exchange and goods and services and we are attentive to the more licensing practices that are appearing in the Internet and based on collaborative creativity and a more dynamic position of the user.  So we are enhancing these two lines of action by means of a series of seminars on software and intellectual property.  We have held one for Africa and Rwanda, and we have very important global meeting of emerging copyright dialogues last year.

And finally, an IGO license, and this is a project that we are developing with our sister UN organizations, and we are developing a platform for exchange in regard to the possibility to develop an open license, specifically adopted for intergovernmental organizations.  We are doing ‑‑ we are taking two different approach.  One would be to develop a license solidly by the IGOs, and another would be to adopt a creative common license to the needs of the ‑‑ of the IGOs, and for this we have also embark on creative comments in the virtual discussions that we are having, and I ‑‑ we are ‑‑ the discussions look very promising in both approaches that we are following.

So I will leave the third portion of my presentation, to multistakeholder dialogues, to see whether there's a possibility maybe in the questions and answers to approach some of the activities that WIPO is engaged there.  Thank you.

>> MODERATOR: Thank you very much, Victor.  It's clear that you have much more useful and important things to say in the very little time I gave you.  So thank you for being so accommodating.

We are now going to move to the rapid fire question‑and‑answer section of the workshop today.  This will be a challenge for our distinguished experts because for most of the questions, they have 30 seconds to provide a pithy answer.  I don't have a red card so we will have to use this brown book.  I will be holding that up when the 30 seconds are over.

Okay.  So let's start then with our first question, starting with Malcolm - What new opportunities does the Internet present for the creation, distribution, and/or monetization of digital content?

>> MALCOLM HUTTY:  Thank you, Christine.  Thank you for the invitation to be here.  We could spend the whole workshop on this one question.  Obviously, firstly, the Internet changes everything.  It provides huge numbers of opportunities, like even bullet points in 30 seconds.  Also, commercially produced content is going to continue to have a place.  It's not going to ‑‑ I don't agree that it's going to be ‑‑ disappear just because of the democratization.  I think in some areas the commercial dominance of certain companies will come to be seen as a short‑term historic collaboration that we went through.

>> MODERATOR: Thank you, Malcolm.  I will turn now to Paul.

>> PAUL BRIGNER:  I see incredible opportunities, particularly with the distribution of content.  I work closely with the technologists at our member studios on new technology ‑‑ new technologies for distribution.  I think of all the things we are hearing about over the past year with Hulu, NetFlix, TV Everywhere, and we can look at cloud‑based infrastructures that will be released very soon, such as Disney All Access and the UltraViolet initiative.  There's a lot to look forward to and it's very exciting.

>> MODERATOR: Thank you, Paul.  Over to you, Pedro.

>> PEDRO LESS ANDRADE:  Sorry.  That is because I want to be fast.  We have seen that on top of democratization and the creation of content, there is a lot on the side of land advertisement that has improved in a great to monetize the content.  I think this medium for monetization is very important to the different needs of the content and mediums and it brings new opportunities for new ways of licensing.

>> MODERATOR: Thank you, Pedro.  We’ll move to Shane now.

>> SHANE TEWS:  Verisign is involved in the how part.  We are trying to do our best to make sure that you get it there efficiently and work with the copyright community to make sure that you don't receive things that you are not supposed to.

>> MODERATOR: Wow!  That was really short too!  Okay, Kurt.

>> KURT OPSAHL:  Internet presents new opportunities only limited by one's imaginations.  We have crowd sourced funding, collaborated user generated projects, free and open software and the opportunities are endless.  One I wanted to highlight is pay what you want.  An example of this the Humble Bundle.  It's  You can pay whatever you want for this.  They raised far more than they would have going through the regular distribution channels with no DRM and no restrictions on the software.

>> MODERATOR: Thank you.  Finally Stuart.

>> STUART HAMILTON:  The Internet gives the libraries the ability to realize equitable access to information for all, the cross border flow gives library to library user the tremendous opportunities that come from and the democratization.  And furthermore, you can create content yourselves to distribute it, to monetize it if they want and that will cut out a lot of old intermediaries and bring along a lot of other further problems and opportunities for both libraries and their users.

>> MODERATOR: Perfect timing!  Moving on to the next question, we are going to look at - What new challenges does the Internet present for the protection of copyright? And, we are going to start again with Malcolm.

>> MALCOLM HUTTY:  Two fundamental problems basically.  One is practical.  Controlling, copying as providing the economic remuneration of artists.  Copying is hard.  Copying is not hard anymore.  There has been various sticking points to make it hard again.  They are doomed to failure, whatever limited success they may have in the short term.  More broadly, there's a moral problem.  The word public good is massively over used to mean things ‑‑ the goods that the public wants.  Actually it means non‑rivalrous, and digital goods are starting to look like that.  I don't believe that means, oh, the government must institute control of artistic production.  Of course not, but it is going ‑‑ it does mean that intellectual property is not the same as the regular property.

>> MODERATOR: Thank you.  Paul.

>> PAUL BRIGNER:  First, I would like to say that I'm happy we all agree on the opportunities that the Internet presents.  From this perspective, artists have to be incentivized to create their content and copyright is fundamental to that.  The theft of content online is constantly evolving and changing.  Yesterday may have been the day of BitTorrent and today we are looking at cyber lockers, streaming and direct downloads.  It's constantly evolving the way the content can be stolen on the Internet.  I think we must work together to stop these free riders from lowering the compensation that go to creators so we can continue to have a vibrant ecosystem on the Internet.

>> MODERATOR: Thank you.  Pedro.

>> PEDRO LESS ANDRADE:  I seem to taken up as Internet as human rights.  One of the biggest things to corporate protection is get a balance between corporate protection and other rights, such as free expression, access to information, education and also the privacy.  I think this is one of the biggest right now issues that we face in terms of corporate protection.

>> MODERATOR: Thank you.  Even under 30 seconds.  Okay, I will turn to Shane.

>> SHANE TEWS:  I think the biggest challenge that we have is getting the filtering and take down mechanisms at the right layer in the architecture.  So it's just something that we had a panel discussion on yesterday, and we continue to work.  As I look at it, it's the artists versus the technologists versus the lawyers.  So the artists want to protect it.  And the technologists are trying to figure out how to do it.  And the lawyers are telling where they can and can't do it, depending on where their interests lie.


>> KURT OPSAHL:  Like the photocopier new technologies present challenges to the business models of copyright where traditional intermediaries are finding less of a role where you can connect directly with artists and user generated content.  So the challenge then is to find a business model that works with the new paradigm instead of against it.

>> MODERATOR: Thank you.  Stuart.

>> STUART HAMILTON:  So clearly the ease of digital copying is a main challenge for us here.  Actually, I would also say the ease of avoiding detection once copying digital content is also another major challenge.  I think we also need it look at the fact that we have a generation of users with a different cultural outlook towards sharing, remixing and distributing content that doesn't fit with our existing business models.  The major challenge is the idea that because we can monitor the flow of copyrighted material online, we should. This an impossible task we are setting for ourselves.  Is it a neverending request for IP monitoring.  I think that's an impact on the goodwill from big companies.

>> MODERATOR: Thank you.  Now I have a question for Paul.  Does the motion picture industry rely solely on copyright to derive value from films?  At what point is copyright most important?

>> PAUL BRIGNER:  Certainly copyright is critical, especially in the early phases of release, but as well through the entire life cycle of a creative work.  The economic incentives for the creators, they are spread over the entire life cycle of that work.  So it is critical, but there's also technological measures that we can put in place that ‑‑ so it's not all based on copyright protection, but it is certainly a very critical part.

>> MODERATOR: Thank you, Paul.  Pedro, a question for you.  Google provides platforms for distribution of user generated content, YouTube and blogger are two well known examples.  How does Google derive value from these services?

>> PEDRO LESS ANDRADE:  As many of you know, we have strategies for monetization of online content and, for example, in YouTube, we have more than 15,000 partners, which include major record labels and film producers.  That has been more than $3 billion in terms of ‑‑ sorry, it's 3 billion monetized YouTube use so far.  This has been something that has been helping a lot from the biggest producers to the small producers.  It, in fact, the small producers, they have more than 100 ‑‑ hundreds of partners are making more than $100,000 per year on this.

>> MODERATOR: Thank you, Pedro.  This next question is for Kurt and Stuart.  What new models for access and licensing of contend are emerging?  Is there a need for new exceptions and limitations?  We'll start with Kurt.

>> KURT OPSAHL:  Over the last decade we have seen a multitude of new paradigms like creative common licenses and older paradigms achieving greater success, like free and open source software.  We have seen user generated content occur, and taking advantage of the exceptions and the limitations and the copyright to make beneficial uses of pre-existing material.  So we need to have limitations and exceptions of copyright law that allow libraries, teachers, individual innovators and cover artists and others to provide their contribution to society.

>> MODERATOR: Thank you.  Stuart.

>> STUART HAMILTON:  Well, Kurt said a lot for me there.  Librarians have been at creative commons and open access models and we have very much been involved in those.  There are a lot of new licensing models and we need to I have a renewed focus to protect public interest.  As a global situation, where many countries around the world already have good copyright exceptions and limitations and many other countries do not see these.  And we see an opportunity for WIPO to let developing countries have the same access.  I think there's should be a strong focus to let everybody have access to these things.

>> MODERATOR: Thank you.  The next question is for Paul, Kurt and Stuart in that order.  What innovations or changes might we expect to see in the next ten years concerning the way content is delivered on the Internet?  So starting with Paul.

>> PAUL BRIGNER:  Ten years is a very long horizon on the Internet.  I don't know that I would be so bold to make that prediction.  I can tell you what's exciting to me and in the near future, aside from all the services I mentioned earlier, is the better incorporation of social networking and personalization, into the consumption of content, those are very exciting developments.  And I would also like to point out that copyright is sometimes viewed as something that hinders innovation but that's absolutely wrong and the opposite of what is actually the case.  The copyright helps us to develop new innovations and it drives innovation.

>> MODERATOR: Thank you, Paul.  I will turn to Kurt now.

>> KURT OPSAHL:  We'll have both technological innovation and I think business model innovation over the next ten years.  So broadband will become widespread at home, mobile broadband, Wi‑Fi, and it will become ubiquitous in some places and this means that consumers will be interested in being able to get access to all sorts of content, everywhere they go without restrictions on when they can access their material.  We will probably see more alternative business models, pay what you want, crowd sourcing, advertising, supported free distributions, and consumers will start to migrate torts options that provide the most flexibilities with less DRM and let restrictions on their rights.

>> MODERATOR: Thank you, Kurt, Stuart.

>> STUART HAMILTON:  Speaking from the libraries' perspective, think I in the next decade or so, we will see some sort of system of peer review, moving into the way we produce journals and academic publishing.  Speaking as someone who loves music, I think they will see collaborative information, and turntable F.M.  We are likely to see more use of what we call the darknet, a two‑tier Internet and more criminalized users.

>> MODERATOR: Thank you.  Okay, moving along, the next question is for Paul.  What is the greatest challenge for rights holders in identifying the person against whom enforcement action should be taken and how would you solve this? 

>> PAUL BRIGNER:  I wouldn't say it's the person that needs to be identified against enforcement.  It's those who facilitate infringement that are the major issue that we need to address and working together as an Internet community and working with Internet intermediaries we can identify the facilitators that are the real issue here.

>> MODERATOR: Thank you, Paul.  Now a question for Malcolm and Pedro.  What are some of the technical issues involved in trying to identify infringement?  I will start with Malcolm.

>> MALCOLM HUTTY:  The user is not the same as the ISP's customer.  The ISP can't tell who is sitting behind the screen.  So whatever you might do exactly to figure out what somebody is doing, you don't know who that person is, which creates some problems for the identification there.  There are also proxies and almost anything can be a proxy.  I don't just mean traditional Web proxies but actually any kind of Internet service that gets data from something else, like an aggregator.  But if you do an encrypted session, it's not acting within the control of the regulatory regime, then pretty much anything can happen.

>> MODERATOR: Thank you, Malcolm.  Pedro.

>> PEDRO LESS ANDRADE:  We identify content and act upon it.  So we develop a technology called Content ID.  They have, for example, YouTube they have three options.  You can monetize.  You can block the content or you can leave it as it is and see how people respond to it.  It's a really good tool for copyright holders and it's a way also ‑‑ how to educate the users in a good way of copyright.

>> MODERATOR: Thank you, Pedro.  Now a question for Kurt and Stuart, in that order.  What are your views on DPI and other means to detect infringement and infringers?  So over to you, Kurt.

>> KURT OPSAHL:  Mandating copyright filters by ISPs will not be technologically effective because they can be defeated by encryption and network level filtering will likely deep packet inspection (DPI) of citizens’ Internet communications.  This raises considerable concerns for citizens’ civil liberties and privacy rights and the future of the Internet innovation.  Even a seemingly reasonable DPI can turn into a tool for widespread privacy violations.

>> MODERATOR: Thank you, Stuart.

>> STUART HAMILTON:  Just to begin with, it's got to be stated that libraries do not condone any copyright infringement.  We have been looking at photocopying and everything in our libraries.  We always work within the law and librarians are trying to look at copyright very clearly in their jobs.  I think in terms of getting libraries at the moment that are caught up in graduated response schemes, we are very much against this sort of issue and if you look at something like the Digital Economy Act which I will talk about in the United Kingdom, it's provided as a public access to the Wi‑Fi and the Internet, and that libraries could be held responsible for their users' infringement and have their services cut back is a very worrying prospect.

>> MODERATOR: Thank you, Stuart.  I now have a question for Karine.  The OECD has produced two reports on Internet intermediaries. Can you see why the OECD undertook this work? What are the next steps?

>> KARINE PERSET:  Sure.  Why did the OECD undertake this work?  Because as the Internet permeates the economy and society, there's increasing pressure, both at the national level and at the international level (and we deal with the international level) to get intermediaries to help, for example, improve security, protect intellectual property rights, but also (which is what Paul mentioned) protect children, help reduce fraud, or help with other objectives depending on the countries involved, such as controlling illegal online gambling or ensuring the free flow of information across borders.  So the problem is that in some cases we are seeing ad hoc and inconsistent approaches at national and international levels between countries and within countries and these create uncertainty for the intermediaries and for other stakeholders involved, with potential negative impacts on innovation, on competition, on ‑‑ or even on the free flow of information across borders.  So our first ‑‑ we have two reports, as Christine mentioned, the first one focuses on the economic and social benefits that intermediaries provide in supporting the Internet economy, the Internet access and use, and innovation processes and the second report focuses more on the roles and the responsibilities that these actors have or ‑‑ or might have for the actions of users of their platforms and that includes legal responsibilities, self‑regulatory initiatives as well as individual business practices.

I don't know where I'm running in terms of time.  I think I'm okay.  So in terms of next steps, we're currently working on an OECD recommendation that's one of what we have ‑‑ one of our legal instruments that is non-binding but that nonetheless has ‑‑ it is considered to be a legal instrument among our member countries.  On the role of intermediaries in advancing public policy objectives, so this is expected to be ready in the coming few months.

It's ‑‑ what this recommendation tries to do is to provide some basic criteria and principles to evaluate for ‑‑ to help governments evaluate whether and how to involve intermediaries in public policy strategies generally.  So in a holistic manner, which respects fundamental rights.

So I think I'm out of time, but ‑‑ in any case, if you are interested in hearing more about those principles, I'm happy to speak about them later if we have some time for discussion.

>> MODERATOR: Thank you, Karine.  Victor, the World Intellectual Property Organization has commissioned some studies examining the roles and responsibilities of intermediaries in the field of copyright.  Can you tell us why you undertook this work and what are the next steps?

>> VICTOR VAZQUEZ LOPEZ:  Yes, thank you, Christine.  The Internet intermediaries are the change of content.  We are moving from a dual scenario, with two players that the creator and the distributor be the producer or the publisher, to another scenario where the intermediary has a role that is increasingly important.  And WIPO has a long story of being a connected to this topic, to begin with, the Internet treaties in 1996 clarified for the first time that the merit provision of physical facilities to enable the communication does not amount to a communication.  So we clarified on that occasion that Internet intermediaries are not directly responsible for the content that is transmitted over the Internet, and that opened the way for the discussion and direct responsibility.

And the development of national legislation, like, in the DMCA or the Electronic Commerce Directive.  So on that basis, we are ready to organize a big event in 2005, with a term Internet intermediaries, and probably we first coined that broad term at the international level, because at the time, ISP was the term usually employed and we would realize that we were not dealing with only the ISPs.  So the two studies that we are now developing, one is already published by Professor Lilian Edwards that looks at the interface between technology and copyright and analyzing the evolving role of Internet intermediaries and the comparative legal analysis of 30 countries including civil law and common law with the idea of finding beyond ‑‑ beyond a legal jargons that are different, in regard to direct responsibility, some common trends some commonalties in their consideration of the ‑‑ of this inherit responsibility.  And this is still ongoing and will be published in due time.

>> MODERATOR: Thank you, Karine and Victor, what is your experience with efforts to manage this challenge at the international level?  What lessons have you learned so far?  Karine?

>> KARINE PERSET:  Thank you, Christine.  Well, there are a few different things.  First of all from our experience, I should point out that out of the many issues that we have been dealing with in the wider work on Internet intermediaries, copyright protection has been the most polarizing compared to the other topics.  So that's just an experience, and I ‑‑ we understand why.  There are ‑‑ secondly, there are very different approaches to intermediary responsibility between countries and also within countries, and countries don't always seem to be able to learn from the experiences of other countries and this brings me to a very important ‑‑ to the most important point that I would like to make is that we need significantly more data to be able to ‑‑ data on the costs and benefits of various enforcement measures to really be able to ‑‑ to come up with informed policy making, and so we have some data, but we need more, much more.

>> MODERATOR: Thank you, Karine.  Victor?

>> VICTOR VAZQUEZ LOPEZ:  So address this issue, we realize that it is very important success has been to associate ourselves with the ISOC, with the stakeholders themselves, because we are much more able in doing these activities together with ISOC of taking stock of what is really the state of play.  Another important element has been in my experience on this topic, the involvement of developing countries.  We have been able in some of the events that we have organized to showcase the experience of countries like India, like Kenya.  Kenya was invited today but the head of the Copyright Office, unfortunately was not available and that experience is very significant because there are developments that are very important, that are taking place in developing countries and sometimes are ignored.

And on the side of the lessons learned, I would say that thanks to ISOC, we have been able to realize that it would not be appropriate to focus in a sequential balance, in the preparation of these events.  I will try to explain these.

We first envisioned that we will prepare a series of meetings, focusing on different types of stakeholders.  So we would focus on governments, on civil society and the interaction with ISOC has enabled us to realize that each event, each iteration needs to have a complete balance.  So I think that ‑‑ that reflects a little bit the way the Internet also works, and it's not so linear and every instance has to be complete and there has to be a complete balance also for each of our activities and not try to achieve a sequential balance.  Thank you.

>> MODERATOR: Thank you very much, Victor.  Paul, content is shared by the Internet legally and illegally using many different services, applications and protocols.  What would you say is the method of online copyright infringement that is of most concern to copyright holders and why?

>> PAUL BRIGNER:  Well, any time the content is being stolen online, all of those methods are very concerning.  As a technologist I see things develop and evolve, what worries me right now is there are websites that look completely legitimate, that a casual Internet user would really not be able to know are involved in criminal activity.  So to stop sites like those, you really have to be able to take away all of the intermediary services that they use, like payment processing, add networks, search engines, being able to take them out effectively Internet ecosystem is what we need to do.

>> MODERATOR: Thank you, Paul.  Our next question is ‑‑ Should Internet intermediaries play a role in online copyright protection and enforcement and what are some of the intended and unintended consequences?  I will turn first to Shane.

>> SHANE TEWS:  As a definite intermediary in this process, we are one of the many tools that can be used but we don't think we should be the first or the last.  So the challenge is you take the web domain out, but it tends to just move to another place, so it jumps around.  So we like to be part of the overall solution set that takes the entire system down, but sometimes coming to us first just says ‑‑ it's just a warning shot that they are going after you and you just become a little more clever.  And so I don't think that resolves the problem, but we are definitely interested and have been a long standing partner in being a part of the solution.

>> MODERATOR: Thank you.  Pedro.

>> PEDRO LESS ANDRADE:  I think there are much more opportunities on the proactive side, developing new tools for monetizing and distributing content.  So there is where many Internet intermediaries could really help, and it's important also to make a differentiation among the different intermediaries.  Some provide connections.  We have intermediaries that provide hosting.  What's clear to me and this has been something that's been very, very well stated in many legislation, is that there's no responsibility for the intermediaries to police the net.  They shouldn't police the net.  Even if they can have some technical ability, they don't have the knowledge, and this is something that's reserved to the justice and the law enforcement.

>> MODERATOR: Thank you, Pedro.  Malcolm.

>> MALCOLM HUTTY:  Thank you.  Intermediaries are asked to assist in the identification, so they can be brought to justice and sanction infringers so they can't continue infringing by withdrawing service.  I believe it's right and proper in appropriate circumstances both of those functions are carried out by intermediaries but the big question is:  Is this an infringement and who decides?  There are two main models increasingly used for that.  One is where the intermediary is asked to decide whether or not the complaint looked justified, now the intermediaries don't have the economic incentives or the characteristics appropriate to what might be an acceptable administrative justice and cannot really resolve those questions.  The alternative model to this increasing being turned to is asking the intermediaries to carry out the request at the case of the complainant.  They are an affront to the rule of law in my view.  The intermediary should not be asked to act as a judge and should not carry out sanctions without even hearing the other side of the argument.  So those ‑‑ but once an independent properly constituted independent authority with proper powers and a proper consideration for the rights of all parties has decided that there is infringement going on, then the intermediary can, indeed execute that judgment.

>> MODERATOR: Thank you, Malcolm.  Kurt?

>> KURT OPSAHL:  As we consider the role of intermediaries dealing with online copyright issues and other issues.  It's important that Internet intermediaries have a vital role in facilitating free expression and they are the avenues by which the people participate in the Internet, participate in aspects of their lives and will become more and more important as we move forward.  And so to promote free expression, it's critical to have a policy infrastructure that does not impose liability on the Internet intermediaries for user actions.  The platform should not be liable for what the speaker has said.  We have some notice and takedown regimes that are out, like the Digital Millennium Copyright Act, have had unintended impact on the Internet, allowing non‑infringing material through, and short‑term censorship.  There are campaign videos being taken down when they were non‑infringing and under the DMCA, you can take something down for 10 to 14 days which could be the critical time period in a political campaign.  You see, media criticisms being taken down.  We have seen personal non-commercial videos being taken down, and these are taking view points out of the market place of ideas.

And so as we think about these roles, remember a few things - that intermediaries cannot take the role of doing an ex‑ante judgment on infringement.  They don't have the appropriate tools to make legal judgments.  And also the economics, they are dependent on scale.  So the benefit of a particular post is trivial, but yet the cost to assess the legality is ‑‑ could be quite substantial and the risk of getting that wrong could be quite substantial.  What this will mean is that intermediaries become overly cautious and will take down too many things.  And it also takes time, user generated websites, once they have public participations require speedy action and they cannot function with a delay.

Ex post review at least requires due process.  The most appropriate role for an intermediary is forwarding notices of alleged infringement and allowing the judicial system to work.

And finally, I want to point out that a regulatory system requiring the intermediaries to take an expansive role will increase the cost of doing business and it makes it difficult for new innovative companies to come in.  If it has to immediately start taking on massive regulatory roles, they can't be in business and then we lose out on some of the great innovation that we've had over the last couple of decades.

>> MODERATOR: Thank you, Kurt.  Stuart?

>> STUART HAMILTON:  Libraries are public access intermediaries.  We offer Internet access to Wi‑Fi and fixed terminals all over the planet.  We have been caught up in graduated response legislation, particularly in France, and most particularly in the Digital Economy Act in the United Kingdom.  I will concentrate on the DEA.  There is no clarity of what library and hotels and caravan parks are.  We don't know if we are an Internet service provider or a subscriber.  For an ISP we would be legally required to monitor our network and spend a fortune to look over the shoulders of our users.  If we are a subscriber, we can actually be held liable or what could eventually happen is there could be an infringement and we could have our own Internet access cut off.  I agree very much with Malcolm about the problem with this sort of legislation who decides what is illegal and who is not.  And who is the responsible end user?  It's extremely difficult to tell.

There could be the removal of public Wi‑Fi access and New Zealand is already looking at this, and then there is the human rights aspect which is mentioned by Frank La Rue, in his report, and librarians as police, looking over the shoulders of people, we really, really dislike this.

>> MODERATOR: Thank you, Stuart and Paul.

>> PAUL BRIGNER:  I believe it's the responsibity of all Internet intermediaries to play a role in copyright protection and using other technologies to stop other criminal activity online.  You know, it ‑‑ there are issues that we need to work through, and they have been well articulated here, but if we cannot have the rule of law online, then we are undermining the future of the Internet and we should all keep that as the primary focus of our return.  We must use reasonable and rational approaches and each country is looking at this.  There are various legislative proposals in the United States.  We are looking at the PROTECT IP act.  I have been involved in talking about some of the technical issues on DNS filtering there and there are some who believe that breaks the Internet.  I completely disagree.  I believe it actually makes consumers have greater faith in the DNS system because when they go to those rogue web sites, they will see a message from their government that says you have gone to a site that has been deemed illegal by the United States justice system.  These mechanisms build confidence.  They do not undermine the Internet.

>> MODERATOR: Thank you, Paul.  Our next question is - How effective are technical measures? A good follow on.  This will be for Pedro, Malcolm and Shane in that order.  I will turn it over to you, Pedro.

>> PEDRO LESS ANDRADE:  Well, there are some technical solutions, for example, Content ID has proven very effective.  It is not 100% an effective technique.  It needs also the collaboration of the copyright holders to upload their libraries in order to be able to detect content on our platform, but our concern is also on the abuse of these tools.  Sometimes we have been witnesses to abuse on the corporate tools to censor speech.  It happened, for example, in Mexico, in political campaigns that certain speech on YouTube has been taken down under the DMCA.  We are looking for other methods to balance this technical solution that really our machines making decisions with some judicial guidance in order to also be able to respect all the rights that are involved.

>> MODERATOR: Thank you, Pedro.  Malcolm.

>> MALCOLM HUTTY:  The question is rather open-ended - What technical measures to do what?  If we are talking about the technical measures that, for example, measure content, sites like Flickr, used to prioritize their complaints management and to identify whether or not a particular item has been seen before, then, yes, they are effective.  Are we talking about can we get network carriers to prevent the infringement copyright, I think I can save us time, doomed, I would say.

>> MODERATOR: Very short and succinct.  Thank you, Shane? 

>> SHANE TEWS:  Yes, they work.  They work when they are strategically applied rather than a blunt instrument.  We work very closely with law enforcement.  We find out that bad guys are bad guys.  They don't run boutique operations.  Copyright is one of the things they pirate multiple products.  What we try to do is get to the root of the source and take down hundreds and tens of thousands of websites when we can rather than taking one which is the warning shot I mentioned earlier that just tells them to move off country, go to an area where you can't follow up as quickly, as well as working with multiple governments to start to have a better blanket network as to how we utilize this, so they can't hopscotch around the world and hide in their cloak somewhere.

>> MODERATOR: Thank you, Shane.  Well, we now reached the end of our rapid fire Q & A session.  We are actually five minutes ahead of our scheduled time.  I would like to congratulate and encourage everyone - to have a round of applause for our experts for their very concise and excellent points.  Thank you.


I would also at this point like to mention that a number of our experts provided background papers which are available on the Internet Society web site on the page about this workshop.  So now we are going to open the floor to all the other distinguished experts that are sitting in the audience that would like to ask questions but before I do that, I think it's only appropriate that we turn to our remote moderator and take some questions from our remote participants.  Marie?

>> MARIE CASEY (REMOTE MODERATOR):  Okay.  We have a very, very active remote participate session at the moment.  Interestingly, not a particular exact question has been posed.  A discussion has sprung up amongst the participants themselves.  The question that they are discussing and would like posed to the panel is by Joly MacFie from the US and Marcin from Poland.  Do artists actually want the copyright on their work that are lobbies for them ‑‑ or the protection on their work that are lobbied for them by other people?

>> MODERATOR: Okay.  Stuart, do you want to answer that as a part‑time podcaster?

>> STUART HAMILTON:  I might answer actually in the context of the recent European Union extension on sound recordings copyright.  That, of course, was argued very strongly that the extension of that copyright would benefit the poor penniless bass player that was living in a place without a fireplace in a basement apartment.  When the European Commission commissioned studies looking at the effects term, it appears that 75% of the monies will go straight in the coffers of record companies.  About 20%, I believe, go to major artists such as cliff Richard who clearly needs the money, and about 5% will go to that bass player.  And I believe the bass player may stand a chance of getting up to 15 pounds extra a year.  I think that's an interesting context.

I think very often we see legislation lobbs into existence that does not have the artist's best interest at heart, and it goes into the coffers of big companies.

>> PAUL BRIGNER:  I would point out that there are some active coalitions of artists.  There's one in particular I would point out, that just these artists are actively discussing the issue of content theft and I encourage you to go to that website and learn more about it and learn their perspectives.

>> MODERATOR: Very, very quickly, rejoinder from Stuart.

>> STUART HAMILTON:  Also check out the featured artist coalition in the United Kingdom that have a slightly different view point on some of this as well.

>> MODERATOR: Okay.  Just before I go away from the remote participants, is there anything else they wanted to add this point?  No.  Okay.  We will take some questions from in the room.  Please remember to state your name clearly and if it's difficult to spell, to briefly spell it, please.

>> AUDIENCE MEMBER: Thank you.  My name is Patrice Lyons.  I'm corporate counsel for a corporation for national research initiatives and an old copyright hand going back to my days at UNESCO in the copyright office.  I found a troubling trend between the interface between copyright and patent law, and I'm working with a research group now where I do code review and I have to look into the patents and things.  Here I'm not looking just at the structuring of the data which may be subject to certain method patents where in the former days if you did a book, you had paragraphs and things and there was a public domain version of what a book was, but I'm also looking at the performance of operations on sequence of bits, this symbolic logic, having spent many years implementing a cable licensing system, you had the public performance right, otherwise called the communication to the public.

Well, that could also, if you flip it around, if you are a patent lawyer, you could be looking at a method patent in performing these operations.  So this is the tension I see emerging and I wonder if anybody has any reflections on that.

>> MODERATOR: Would any of our experts wish to answer that question?  Would anyone else in the room?  Oh, I think you asked a very tricky question.  We might have to come back to it.  I apologize if I'm not taking you in the order it that you put your hand up.  It's a bit difficult to tell.  I will take this gentleman here.

>> AUDIENCE MEMBER: I won't give my name.  I do this Chatham house rules because I fear the lawyers in the house are being criminalized.  I'm a researcher from the south and I see the wonderful access that those that expensive American universities, ivy league universities get, I'm not at a university where I have a log‑in or access to anything.  Everything I do research on is either open content or the sources I use are somehow the copyright ‑‑ could you see it's infringed.  I would say it's fair use.  So, yeah ‑‑ and I think without ‑‑ it's about access to knowledge for me, and I don't think my research would be possible without a little bit of copyright infringement.  I think that goes for many people in this room.

I would also just like to ask if any of the people from WIPO or the pro-copyright crew on the panel know of anyone who has made any money from ‑‑ or any academic author who has made money by publishing something in an academic journal.  I don't really get how that system works but it seems to be just the EPSCOs who get the money.

>> MODERATOR: Thank you for that question.  I will look to see if anyone would like to respond.  Okay ‑‑ yes, I will just take Victor first and then we'll go back to Malcolm.

>> VICTOR VAZQUEZ LOPEZ:  Just a clarification.  We don't ‑‑ or I don't agree with this antagonism between copyright and open access.  And copyright and access to open information.  I think open license modalities as used in the academic environment are an alternative way of exercising copyright.  They don't counter copyright they reinforce it in some way.

>> MODERATOR: Thank you, Victor.  Malcolm, you wanted to reply to the previous question?

>> MALCOLM HUTTY:  The previous question was deeply technical, but it really does deserve attention.  I would say ‑‑ I'm going to try ‑‑ in order to try and answer ‑‑ or to respond to it, and build upon it, I'm going to generalize massively from what you were saying.  Patents are not just about the copy of the item.  That's copyright.  But patents control machines, they are things that you can do, and in the copyright field, we are also seeing other controls of things that you can do with it, through copyright licensing which is being used to control how you use the work.  It's used to control whether or not ‑‑ through the control of the derivatives work, what you can do with it, and whether you can make derivative works and if so, what kind.  And because the content to make any kind of derivative or to do anything from it is entirely in the hands of the rights holder, that's giving them a power to determine whether or not value is added to their own product.

Now, that is not patent law, but it is in an area that patent law seeks to regulate as well, and the interaction of these two, I believe, deserves much greater analysis than is happening at the moment.

>> AUDIENCE MEMBER: Thank you.  I appreciate that.

>> MODERATOR: Thank you.  Anyone else, before we close that particular topic?  I don't think so.

I see a gentleman here.

>> AUDIENCE MEMBER: Thank you.  I'm Jérémie Zimmermann. I want to bring an historical perspective to that debate and ask a question to the honorable panelists.  Along the history of copyright, whenever some new technology was seen as a threat, whether it was mechanical piano, music on the video, blank capacity building cassette tape, there was an outrange and new technology won.  There were new modes of funding creation, sometimes mutualized schemes for funding creation.  And if you look at this perspective, you will see the decline of the sales of the CD are perfectly natural as the obsolescence of the medium.  It makes a deep impact on society and technology.

Also, if you look at the figures, you see a number of studies showing that the people who share the more files, the people who buy them for cultural goods, and they came to that conclusion in their own studies.  So given that and given the fact that of course, you have to take into consideration that video games are part of culture.  So when you look at the figures of movie sales and music sales and video game sales, you see there has never been so much spending and it's raising every year.

Therefore I come to my question, what would the panelists think of enhancing the private copy exception that was made in a time when doing copy was for industry electors and it was a major technical difference between distributing the copies to the public and making your own.  Now that this difference is gone, what would you think of extending the private copy exception to private sharing exception where individuals copying work that has been digitally released and not-for-profit would be out of the scope of stupid enforcement?

>> MODERATOR: Thank you for that historical introduction and question.  Who would like to answer first?  Pedro?

>> PEDRO LESS ANDRADE:  I would like to make a comment around private copy.  I agree that the times changed in terms of what we think about private copy now and it was sort of a private copy before.  Now digital medium is the canvas, it's a new canvas.  I really can't understand how applying, for example, a levy over a canvas will foster the art.  It's not just really copying some that was in our medium now.  Now we create on a digital medium.  So I think that we really need to revise this in light of how we use the technology now, and each of us having our funds and our capability to take pictures to ‑‑ the records is not just only copy.  Now we are creating.  It's really interesting to analyze this in light of the new use of the technology.

I also agree that, you know, all this technology was at the beginning, you know, an outcry about the technology, but then one of the best solution for the industry that was crying about it, that this is the end and we saw that with the VCRs that at the beginning, when the first use was ‑‑ was created as a doctrine, it was because someone didn't want to produce VCRs.  Substantial non‑infringement.

>> He's referring to the doctrine that came out of a case about the Sony beta max copier which I believe that then president of the MPAA said was to the copyright to the movie was a serial killer.  They came out with a doctrine of non‑infringing use.  Because it had non‑infringing use and it was a lawful product and did not have to pay a royalty for having VCRs and then later it turned out that the sales of the tapes on the VCRs was a profitable business for the motion picture industry.

>> PEDRO LESS ANDRADE:  And I think last remark.  What we must allow the market to basically give time to the market to respond to the new challenges that the new technology presents.  The market will accommodate also to these new technologies and if you go back, we can see how we adapt to the new technology and then become really good ways of income for the corporate holders and the artists.

>> MODERATOR: Thank you, Pedro.  Paul?

>> PAUL BRIGNER:  I will just make a comment about the historical perspectives on technology and how that's challenged the business models and how early on, as the comment was pointed out, it was seen as ‑‑ technology was seen as a major threat.  I think I would like to suggest that has changed, and I think that there ‑‑ I see the movie studios, because I deal with the technologists there regularly.  I see them actually, as becoming very technologically savvy, not only in the distribution of the movies but in the development of the movies, with the way they are using computer graphics and other technologies, it truly is, I believe, a very evolved industry and they are focused on making the best of digital distribution, and they are looking ahead.  They are looking to the future.  So I would encourage you all to take another look, and not only look to what might have been said in the past, but look at what we are doing now.

>> AUDIENCE MEMBER: Can I make a quick follow‑up.  First of all nobody answered my question about the private sharing and the technology afraid of if there is sharing between individuals?  Everybody knows how to use 0s and 1s today, it's the individuals have this ‑‑ this capacity that you are afraid of, I think.

>> PAUL BRIGNER:  You know, I think as I might have mentioned earlier, what we see as a great opportunity is actually the sharing of the content through social networks and having the ‑‑ the ability ‑‑ the greater ability for users to share their experience as possibly even while they are watching the movie.

You look at what has come out with NetFlix and Facebook recently and the ability in many countries to be able to see what your friends are watching and join in that experience at the same time.  I think the sharing is going to increase.  It's hopefully going to increase in a way where the creators can be compensated at the same time.  I think it's looking positive.

>> MODERATOR: There was a gentleman at the back of the room who has a question.  Come to a microphone, please, and ‑‑

>> AUDIENCE MEMBER: I'm Bill Smith with PayPal.  First, I want to comment and say that we support the rights of copyright holders and the rule of law.  I also believe in the law of unintended consequences.  What I want to pose to the panel, is around, and the gentleman spoke about this earlier, what's known as fair dealing in common law countries, fair use in the US, which is legal protection for comment, criticism and a set of other things that are not an infringement of copyright.

And the question is, give that, how does the Internet enhance or limit this protection, either currently or in the future with some of the mechanisms that are already in effect or being proposed?  And a second question, which is, what is the role of an intermediary, if any, in these determinations of fair use?

>> MODERATOR: Okay.  I will look to my right and to my left to see if anyone is ready to answer that.  Oh, we have Pedro.

>> PEDRO LESS ANDRADE:  Well, I think that it's necessary to really work on a more set of exceptions and limitations on copyrights, and the new challenges ‑‑ the new platforms at least in terms of information and also mix and content, in order to create new and bring on top of others.

I see that from a perspective of an ISP and let's think about not Google, not about social network but a small ISP that is in a remote area and serving a little community that receive a corporate ‑‑ a legal of infringement, for example, and how ‑‑ and then ‑‑ and in a country that does not have a statute on how to proceed.  And so he has to go to a lawyer to get advice on how to proceed.  So I think that fostering very clear rules for ISPs and how to proceed with due with respect to ‑‑ with due process to give the different parties the chance to defend themselves is one of the best tools for the work of the different intermediaries.

It's not a cookie-cutter solution.  It has to do with legal ‑‑ the legal story and the legislation in the different region.  What works for you doesn't work for Latin America or for Europe.  It's important to take that in mind, to try to find out the different ‑‑ the difference in legal ‑‑ in the legal realities of the different region as well.

>> MODERATOR: Thank you, Pedro.  Anyone else?  Yes, Malcolm.

>> MALCOLM HUTTY:  Well, fair dealing is not the same as fair use, of course.  It's much narrower.  The Internet is creating the opportunities for people to make use of things like fair use exceptions to create benefits, but politically I think the Internet is actually harming fair use in that the widespread infringement of copyright through people just downloading copies of music and film and TV programs is creating enormous political sympathy amongst policymakers to focus entirely on the enforcement issue, and not to give adequate attention to exceptions, to fair use and to the kind of interactions I mentioned earlier in my reply to the previous lady that spoke earlier about value add and licensing.

>> MODERATOR: Thank you.  Just go now, again to the remote participation.  Marie?

>> MARIE CASEY (REMOTE MODERATOR):  Okay.  I have two more questions.  One, the first is from again, Joly MacFie who asks the question, in David Post's book "In Search of Jefferson's Noose" they call for a return to a system of mandatory copyright registration, arguing that otherwise it's impossible to legally administrate in the Internet age.  Does the panel agree?

>> MODERATOR: Well, that's a tough question.  Would anyone like to answer it, yes or no or ‑‑ Stuart?

>> STUART HAMILTON:  Well, I ‑‑ we were asked ‑‑ we may still get the chance to sort of being “king for a day” in terms of copyright at the end of this session and what we will do to reform the copyright system.  One of the things I thought about was the reintroduction of a registration system for the copyright, the kind of use it or lose it aspect could be built into it so that a renewing sort of mechanism was possible and that idea does appeal to me because quite frankly, I think the length of copyright right now is way too long, extremely, extremely long periods of copyright and not doing what was originally defined for.

I think we are all aware that to try to move to a registration system is going to be extreme complex, long battle, massively expensive but with WIPO looking at music registration systems and the Hargreaves report looking at the copyright, the exchange model that they are looking at within that, it's obvious that some people are looking at mechanisms around this.  So I wouldn't be against it.

>> MODERATOR: Thank you, Stuart.  Victor.

>> VICTOR VAZQUEZ LOPEZ:  Just very brief, what exists is absence of formalities and so there's no way to establish a mandatory registration.  I would like to respond to the gentleman, which is that the copyright revolves with the evolution in technology.  If we look at the history of bank convention, it's more or less updated every 20 years and also in regard to registration, they ‑‑ the consideration of registration is also the result of an historical process.  At the beginning, in the 1896, there was no registration.  The first harmonization was to establish that you needed to comply only with the formalities of the country.  So each country kept its own formalities and you only needed to comply with the formalities of country of origin and only in 1908, in the Berne Convention the principal and the absence of formalities was established.  With the convention, it's subject to examination by Member States.

>> MODERATOR: Thank you, Victor.  Is it a quick question, Marie?  Excellent.

>> MARIE CASEY (REMOTE MODERATOR):  The quick question is from Alfred in Ghana.  The question being:  How feasible will it be in library ‑‑ for libraries if additional responsibility is, in fact, going to be put on them to monitor the activities of the users?  This is specifically aimed at regarding developing countries who might not have the capacity or the ability to actually monitor this.

>> MODERATOR: Stuart, would you like to answer that?

>> STUART HAMILTON:  We know it's in France, and New Zealand and in the background is the ACTA negotiations which stop short of completely recommending graduated response but leaves some room in there for these sorts of activities.  We can only estimate from the UK, based on the sorts of things that happen in US colleges that put into place monitoring mechanisms to stop their students from infringing copyright.  They seem to be talking about millions of dollars per year to actually set up a monitoring regime that allows for appeals and notification of students infringing copyright.  You see in the Digital Economy Act the split between ISPs and rights holders paying a certain amount of enforcing this sort of stuff.  We believe that if that really does come through to libraries, we could be paying millions of pounds a year to upkeep these schemes.  I think that can only spell very bad news for library systems in developing countries.

>> MODERATOR: Okay.  So that we can finish on time, I think we only have time for two very short questions.  So I see a lady over to my left.

>> AUDIENCE MEMBER: Hi, Susan Chalmers, Internet New Zealand.  We just implemented a graduated response procedure and it went into effect on September 1st.  This procedure has imposed a lot of costs on the entire Internet community regardless of whether or not you are an infringer.  It may have a chilling effect on public Wi‑Fi, like Stuart just mentioned, and it could result in termination of Internet‑only accounts.  So beyond the cost of the graduated response, we are going to see the US exports DMCA through ACTA which is opened up for signature on October 1st and the TPP, which is opening up temporary copies to red seeking opportunities, buffering, caching, streaming.  Copyright is frequently explained as an incentive for creators but also it brings a benefit to the public good.

And so my question to Paul and to all the panel is how can we ensure that the public, the greater Internet community gets something in return for these constantly increasing costs of the use of the Internet and are subsequently diminished Internet freedoms and how can we recalculate the system to introduce fairness to end users?

>> MODERATOR: Thank you.  Who would like to take that question?  Paul?

>> PAUL BRIGNER:  Okay.  I will start.  I have to first disagree with the thesis that we are out to reduce Internet freedom.  I think that's not the goal.  The goal is to bring content to people in ways that they want to consume it, bring it to the devices they want, bring it to them where they want and when they want.  I think the Internet provides all of those opportunities.  So that is the fundamental goal and it really can only happen if we have good copyright protections and if we have mechanisms where creators can be incentivized.  That's the challenge we need to address and all of the different mechanisms you mentioned are attempts at doing that and I think that we have stakeholders from countries all over the world who are working in developing these proposals.  I think we have a lot of good reasonable thought going into them and I hope we will see some success.

>> MODERATOR: Thank you.  Anyone else?  Stuart?

>> STUART HAMILTON:  Very quick I would say if we are looking at treaties and laws to increase enforcement, then I think we should look very closely at treaties and laws that introduce adequate exceptions and limitations into copyright laws so that will public interest and the balance is maintained.

>> MODERATOR: Thank you.  I think as our last question, there's a gentleman here who wishes to say something.

>> AUDIENCE MEMBER: My name is Amagil from Kenya.  Recently Google has digitized the parliamentary proceedings and hosted them on their site.  My wonder is, who is the copyright holder of that material?

>> PEDRO LESS ANDRADE: I would like to have more information.  What Google Scholar, Google Books or you just find links?

>> AUDIENCE MEMBER: It's posted on Google Books.

>> PEDRO LESS ANDRADE: Well, it might be an agreement between the ‑‑ it was officially set?  You mentioned?  I don't have information, possibly it could be an agreement between the publishers.  I really don't know.  Someone that looks like they have an answer for this.

>> AUDIENCE MEMBER (GRACE MUTUNG’U): No, as a clarification, the Hansard and the Kenya Gazette is possible and Google made it possible to have it online.  It's public.

>> It's public information.  It's not subject it corporate.

>> MODERATOR: Thank you for that clarification Grace.  I will give my distinguished experts an opportunity to close with a question.  So, if you could decide these issues single handedly, what would be your solution?  I will start with you Malcolm.

>> Malcolm:  We call it the “if I was the king of world”.  I would try to give something to each side of the debate and be benevolent.  The various procedures for intermediaries and graduated response schemes are predicated on the notion, that there are widespread problems going on.  The first duty of government is to provide adequate justice, so I would be looking to institute some effective, efficient small claims procedure.  Not dissimilar for someone shoplifting in a real shop.  I would also, once we are looking at the exclusivity principle.  I don't think have a direct answer to this, but fundamentally, cultural and information goods must be available as the source of new artistic endeavor and new consumer and business services.  If you have a situation where the rights holders for a collection, for example, of musical works, their permission is needed in order to provide a new service around those ‑‑ those works, such as Pandora and Spotify need to negotiate contracts with the right holders in order to offer those services at a price that's acceptable to those rights holders in their arbitrary discretion and only in the territories which they are willing to do it in and in a manner that's in their own strategic preference.

This is not the way the ordinary market economy works in physical goods.  It is harmful to innovation and this is ‑‑ it is ‑‑ it is deeply problematic.  I don't know what the solution is, but we definitely need to look further into this.

>> MODERATOR: Thank you, Malcolm.  Paul?

>> PAUL BRIGNER:  Well, if I were “king of the day”, then all of the content you want to access would be available to you on all the devices you want whenever you want it.  That's ‑‑ I think that's the goal of the content community and as long as they can be compensated and incentivized for doing that, we have a system that can be vibrant and sustainable.

You know, I would say that, again, the critical issue here is all agreeing that the rule of law must be ‑‑ must be implemented online.  We must have law online and we must all ‑‑ all of us, including intermediaries work together to accomplish that.  So that's my vision of success going forward.

>> MODERATOR: Thank you, Paul.  Kurt.

>> KURT OPSAHL:  So there's a lot of things that ‑‑ and, again, if I were “king the world”, I would wouldn't want to have graduated response and DRM.  I wanted to come forward with more of a positive thing and this was harking back to something that EFF has been proposing since 2003, voluntary collective licensing, which is an alternative post to get artists paid and making sharing of files lawful and this concept is the simple.  They would form collecting societies which then offer the user the opportunity to legitimately transfer and have files in exchange for a reasonable, regular payment and then the money collected would be distributed to the artist based on the popularity of their content, as determined by anonymous surveys.  And then this would achieve, I think a dream of having the content available on all devices at all times.  I guess we are in agreement there.

>> MODERATOR: Stuart.

>> STUART HAMILTON:  I also share Paul's dream.  All information available at all times all devices.  I will go completely blue sky because if I was “king of the world”, I would reduce the copyright substantially.  I would probably make it renewable once, if not as many times as needed to be done for big companies like Disney who keep exploiting their copyright, as a use it or lose it in there.

On the supply side, I would set up a system that would enable the business models to give us exactly what we want when we want it.  And so the people in Kenya can watch the same television programs on Hulu and NetFlix that you can watch in the US, which you can't do.  And I would make sure it was completely respected throughout this and balance this out so we are not criminalizing people for routine behaviors on then we should make sure that we have rule of law and that infringers gone after in court.

>> MODERATOR: Thank you.  Pedro.

>> PEDRO LESS ANDRADE:  Well, if I would be “king of the world” for one day, simply, we would be an a safari today.


But I see that, you know, we need to focus on improving offer, access and good pricing structures to the content so we can give more options to the users and get more affordable prices and so the user can get the content and for developing countries, for example.  I think that also developing better licensing monetization systems in order to help small producer of content to get their content around and also monetize ‑‑ allow people that want to use their content in different mediums to get in contact with the content creator.  We have been working together with WIPO and many African countries in order to improve the system of licensing and help local producers to be able to have access through the database of content in a streamlined way in order to be able to monetize the content worldwide.

>> MODERATOR: Thank you, Shane.

>> SHANE TEWS:  Taking a slightly different tack on this.  I don't want our best Internet days to be behind us.  I would say IPv6 allows us to avoid the multi tenant concerns and you can be more control over who you are concerned about.  And then the authoritative location could be noted by part of the URL.  So dot MPAA could be the download of your members and people would eventually know that's the authoritative place to go.  So those are two things that I think can enable more positive behavior coming in the future.

>> MODERATOR: Thank you, Shane.  I will turn briefly to Victor.

>> Victor:  If I was to decide this single handedly, surely, I will get it wrong.  So I would organize another event and discuss whatever ‑‑ whatever ideas I have.

>> MODERATOR: Thank you very much, Victor.  That's lovely.  We have reached the end of our workshop today.  Before we all go, there are a couple of important things.  First of all, I want to congratulate everyone in the room for participating in this workshop and I would like to especially thank our discussants who gave truly insightful and innovative ideas to this discussion in a very, very short time frame.  So, again, please, a round of applause.


Oh, even a standing applause.  Thank you very much.

Okay.  So the last thing is there are some copies of the Internet Society background paper and the papers from the OECD at the back of the room, if you are interested.  Again, thank you very much.  I look forward to seeing you in the IGF elsewhere.  Thank you.