The YouTube generation has gained an ally in the worldwide "copyright wars." The Dutch government wants to change copyright law so new media users can continue to do "creative remixes" of protected content. The Hague will no longer wait for the European Commission to find a compromise.
"We all love YouTube," says Bernt Hugenholtz of the Dutch state committee on copyright law.
"Many of the videos we find there are creative remixes of material protected under copyright. They're mostly for laughs or political commentary, or they're simply absurd. If we applied the law today strictly, we would not be allowed to do these things."
Hugenholtz says European copyright law is outdated because the exceptions it allows for the use of protected content do not take new technology into account. This also affects university lecturers like himself who can use copyright-protected material in their lectures but find themselves on thin ice once they start showing the same content via digital technology such as electronic whiteboards.
US vs. European copyright law: the pros and cons
Fair use is a doctrine in American copyright law that permits limited use of copyrighted material without acquiring permission from the rights holders.
Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship. The norm is broadly defined, leaving the courts far-reaching discretion in judging cases of copyright infringement.
By contrast, European law favours predictability by strictly defining a specific set of exceptions and limitations to copyright protection. No leeway is given to the courts to interpret these.
Critics say the European rules are unsuited to deal with the rapid pace of development in new digital technology. They also believe the current EU rules, if strictly applied, encroach upon fundamental freedoms of internet users, such as their right to privacy.
"We all agree that it's good for creativity, good for laughs, and no one gets hurt. Copyright holders are not harmed, so it makes a lot of sense to allow this. But in Europe, where we do not have open norms like the fair use doctrine in the United States, we can't do these things without infringing the law."
Relax the rules
Hugenholtz, copyright law professor at the University of Amsterdam, discussed his views last Friday with representatives of European governments, the entertainment industry, internet entrepreneurs, legal experts, journalists and librarians. They were gathered in The Hague for "Towards Flexible Copyright," a conference organised by the Dutch government.
At the conference, Deputy Justice Minister Fred Teeven said he is exploring "a more flexible system of copyright exceptions that would also work in a European context." Teeven's suggestion that the Dutch would unilaterally loosen their rules clearly displeased one of his guests: the head of the European Commission unit drafting a new directive to harmonise EU copyright law.
But the same idea was music to Marietje Schaake's ears. One of the leading voices in the European Parliament on internet freedom, Schaake asserts that decision-making on copyright law in Brussels is being stymied by vested interests in the entertainment and publishing industries.
We are not in the business of ensuring that certain big business models prevail and that fair competition cannot happen," she says.
"We must ensure that there is competition and a free market but we have to protect creativity as well. Right now the entertainment industry, for one, benefits from these outdated laws. These big parties will do all they can to prevent reform or redesign at all."
Fred von Lohmann, chief copyright counsel for Google, points out that new technology and copyright have collided many times over the past century, "beginning with the player piano (self-playing piano), broadcast radio, broadcast television, cable TV, video recorders and so on." Each of these technologies was initially seen as a threat by copyright holders, he says, "but each eventually expanded the market, creating vastly more profits for a wider circle of people."
Therefore, Von Lohmann told attendees in The Hague, copyright holders should embrace new technologies rather than fearing them. And governments should introduce as much copyright flexibility as possible to allow creativity to flourish.
No creative crisis
"If you look at the motion picture industry, you see that they continue to enjoy very healthy revenues," the Google counsel says.
"On the other hand the music industry has struggled somewhat. But in the end there are more opportunities being created by these new technologies than ever before. There are more bands, using more different technologies to reach more fans than ever before. So there is certainly no crisis of creativity. There's more music, more video, more writing going on today than ever before."
Von Lohmann believes the time is ripe for individual governments in Europe to make their copyright laws future-proof. Unlike some who have called for a radical rethink of Europe's legislation, he believes there is enough room for manouevre to simply modify the current rules.