Blog de Philippe Aigrain's blog

Regular readers will have noticed that this blog has been sleepy since mid-April. Initially this was due to my annual trip to the mountainous suburbs of cyberspace (see photo). Since then, the silence of this blog is due to another factor. I am busy with the Squaring the Net initiative, on whose site you will find entries in the coming weeks on new mechanisms for mutualising funding to creation, the cultural information commons, freedoms and the Internet, and the stakes of informational technology. I hope to find some time for publishing entries on other subjects on my personal blog.

Historical turning points are often discrete. One such has occured today in the European Parliament. For the first time, the Parliament has taken a position on the relationship between Internet and culture that goes against the traditional views of the large right holders lobbies. The Parliament has already arbitrated with courage between the scope and enforcement of some IPR and fundamental rights or innovation. For instance it rejected scope extensions of patents to genetic sequences (in 1995 befre a fierce lobbying convinced it to change its mind in 1998) and to software/software-based information processing methods (in 2003 and 2005). However, for subjects where one could invoke the rights of creators (even in contradiction to reality), a majority was found to adopt texts that showed insufficient respect for freedoms, the due process of law or user rights. This was the case for instance with the adoption of the IPR enforcement directive in 2004, which created a presumption of guilt and extreme preventive measures against the non-commercial usage of information and works.

Today, the Parliament has demonstrated that there are limits to the regression into absurdity. It did it at the occasion of the plenary vote on a report of Guy Bono on the cultural industry in Europe. The Parliament adopted the following amendment:

Calls on the Commission and the Member States to recognise that the Internet is a vast platform for cultural expression, access to knowledge, and democratic participation in European creativity, bringing generations together through the information society; calls on the Commission and the Member States, therefore, to avoid adopting measures conflicting with civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness, such as the interruption of Internet access.

As with every truly important vote in the EP, it did not follow party lines. Two identical versions of the amendement were tabled by progressive and conservative MEPs and votes for the amendment came from all across the political spectrum. One event made the vote more remarkable: a political group called for a split vote separating the principles part of the amendment from the last sentence “, such as the interruption of Internet access.” But the Parliament adopted both parts (with a close vote on the second), thus demonstrating that it knew what it was doing when it rejected the very principle of the three-strike approach and its culmination in suspending access to the Internet.

Is is now for the French government, who wrote to every French MEP to call them to reject the amendement, to decide if it wants to go on pushing in France and in Europe for the adoption of the Olivennes law proposal (or a European equivalent) when a majority of the European democratic representation has declared it incompatible with fundamental rights.

In France April fool’s day gives rise to “1st of April fishes”. But this post is not one. Until yesterday, media announced (link to an article in French) that France was to vote no in the ISO (International Standardization Organization) vote on admitting or not OOXML (the format proposed by Microsoft for office documents) as a standard. This extremely complex format is criticized as not fulfilling the requirements for an open standard useful for interoperability. Many analysts see it as a move to slow down the growing adoption of Open Document, an international standard implemented in offices suites running on all operating systems (in particular free / open source software office suites). AT a first vote last year, many countries had voted “yes only if satisfactory answers are given to our comments”. The French vote is casted in AFNOR (the French standardization organization). After displaying its firm defense of interoperability and open standards and judging Microsoft answers to comments as not convincing , France changed its mind at the last minute. Friday evening, Microsoft sent a new document pretending to contain new significant information, offering thus a pretext for possible retreats (that did take place in several countries, sometimes further to manoeuvres that are giving rise to judicial actions, such as in Norway). Who changed his mind in France? Two representatives of governmental administrations made the decision: the Direction Générale des Entreprises and the Direction Générale de la Modernisation de l’Etat, both departments of Ministry of Economy known for their positions in favour of interoperability and open standards. Why did they change their mind? On instruction from someone higher up or because they were convinced by the new Microsoft document? If it is the former, whose instruction? If it is the latter, please provide information of which precise and new contents convinced voters to switch to abstention.

The adoption of OOXML as a standard will not stop the growing adoption of OpenDocument and F/OSS office suites. It will just slow it down. Just enough to pump a few tens of billions of euros from the pockets of the planet citizens into the profits of one company. Your eyes were not mistaken: it is tens of billions of euros (the net profit of Microsoft on office suites was 10.7 billions of US dollars in 2007).

My last posts hinted to it, here it is : a societal initiative has just been launched to oppose the French governmental (and European) projects of legislative and regulatory frameworks impacting the Internet and information technology usage. These projects aim at constraining the Internet and information technology so that it will stop disturbing the lobbies of scarcity (scarcity of sources of expression and culture, scarcity of works, scarcity of knowledge that is freely accessible and usable, scarcity of public expression). The name of the initiative has been chosen in reference to the stubborness with which the promoters of these texts keep pushing for an approach despite the failure of all its previous implementations. Please visit all the Squaring the Net site. The initiative also aims at recalling the many constructive proposals that exist for rewarding and funding creation, promote quality in the public information space, enrich educational practice by access to knowledge and works, etc.

Translation in process, please be patient or read the French version

Un groupe de travail de l’Organisation Mondiale de la Propriété Intellectuelle est en train de discuter d’une proposition du Chili, du Brésil et d’autre pays sur le futur des “limitations et exceptions”, c’est à dire des droits d’usage positifs en matière de droits d’auteur / copyright. Les pays qui forment le groupe B (Etats-Unis, Union européenne, Japon et quelques autres pays) viennent d’opposer une fin de non-recevoir aux éléments essentiels de cette proposition. Ils ont en particulier rejeté des propositions comme celle d’analyser “quelles exceptions et limitations sont nécessaires pour promouvoir la création et l’innovation et la diffusion des développements qui en résultent”. Ils opposent sans doute à ce travail éminemment nécessaire leur interprétation du “triple step test” que doivent (selon la convention de Berne et les accords ADPIC) respecter les limitations et exceptions pour que les états puissent les édicter (de façon optionnelle sauf dans certains cas). (more…)

My post is not available in English, and it is very hard to translate in English. For instance dispositif means at the same time “device”, “mechanism”, “action plan (in a military context)”, “pronouncement” (in a judicial context). You can read the French version

My post is not available in English, you can read the French version

At its 2007 General Assembly, the World Intellectual Property Organization adopted a Development Agenda. This agenda was initially tabled by a number of emerging countries in 2004, and it was debated during the next 3 years. WIPO has just published 45 proposals resulting from the adoption of the Development Agenda, of which 19 will be immediately implemented. Some seem more centred on the promotion of IP mechanisms, but others mark a true progress in addressing development needs (including human development in the North). Among these, proposal 16:

Consider the preservation of the public domain within WIPO’s normative processes and deepen the analysis of the implications and benefits of a rich and accessible public domain.

sheds light on the recent proposal of the European Commission to raise to 95 years the term of protection for sound recordings. Would the Commission call the Member States to ignore their obligations under international treaties? Or is is going to reveal the evidence it may have on how the proposed measure will contribute to the benefits of a rich public domain?

The French Ministry of cultural goods distribution lobbies leaked a draft proposal (in French) for a new law automatizing sanctions against the non-commercial exchange of information between individuals, with compulsory DRMs and filtering as a bonus. I prefer to wait before analyzing the substance of this project, but the impatient can refer to the analysis by Christophe Espern in an interview with PC Impact (also in French). For the time-being, I will just note an impressive return of the repressed. When the President and CEO of FNAC (operator of a for-pay download platform) was nominated as head of the committee in charge of making proposals for the imposition of a specific commercial model for cultural distribution, there were screams of conflict of interests. This may be why the draft law proposal accumulates prohibitions of holding or having held various jobs for the future members of the new “High” “Autority” it is set to create. This autority will have (if the project turns to reality) a combination of police and sanction rights. I do not believe this draft law proposal would exist if conflicts of interest had been considered before.

My post is not available in English, you can read the French version

The recent Microsoft interoperability announcements can be summarised briefly:

• we are ready to compete with those who don’t compete with us,
• including free / open source software as long as we can redefine it to our taste (limiting it to non-commercial usage even though the no-discrimination between types of usage is at the core of its definition).

Nothing new, as the European commission reminds us politely. However, there is something that risks making us regret the good old times of secret: Microsoft would like us to believe that patents can apply to interoperability software interfaces (which is not the case in the European legal framework) and wants to push developers towards fragilising their reverse engineering rights by entering into license agreements for the access to interoperability information.
See also the detailed analysis on Groklaw.

Let’s return to the proposal to extend phonogram rights to 95 years in Europe. The direct economic stakes of this proposal in terms of revenues seem relatively minor: in macro terms, even the Beatles account for a small proportion of the musical recording sales. So why are the large music publishers so keen on it, to the point of accepting -for rallying the performer rights collective management societies to support the proposal- that 20% minimum of the profits on sales of older than 50 years recordings would be redistributed to performers (meaning in many cases their inheritors). This is because a major danger exists: there could exist a rich and interesting freely accessible public domain. People could use their precious time to listen to, exchange on networks, enrich, annotate, analyze, reuse in new creations these public domain recordings. I know: quite a few recordings that are older than 50 years are not truly freely usable because of author-composer rights lasting longer. But just those who truly are in the public domain or soon will be (f.i. traditional music, classical music, older standards of jazz, blues and gospel, songs, etc.) are enough to create a basis. This is the devil! Almost as bad as global licensing. It could open the door to a free exploration of the potential of musical commons, to media literacy. Soon moving image would go the same way. The time usage of people would be partly lost for its predators. What loss of profit than this possibility of a common wealth!

The article of lemonde.fr (quote translated by the author of this post) covering the time extension proposal, quotes Patrick Fremeaux, a phonographic producer specialized in the audio heritage. Here is what he says:

it will create a cultural diversity desert. I am opposed to the idea that the economic right would create a moral right that would prevent the exploitation of the common heritage. One makes a law for Johnny [Hallyday], the Beatles and [Georges] Brassens. But not for Renée Lebas or Mahalia Jackson, not even for [Charles] Trenet or [Yves] Montand who are not profitable for the majors.

Commissaire McCreevy has just confirmed his intention, -already stated in June 2006-, to extend the term of protection of sound recordings from 50 years to 95 years. This is despite the fact the UK, after some debate, decided not to support such a proposal. A few points of notice in the press release of the Internal Market Commissioner:

• He refers to “performer rights” when in most cases rights on sound recordings are entirely in the hands of the producers. One is not surprised to see IFPI quite happy with the announcement.
• The Commissioner wants to align “performer rights” on “composer rights” whose term is 70 years in Europe. He proposes to do so by extending the “performer rights” to … 95 years, which is their recently extended term in the US. Here is an alignment that will be soon followed by another one.
• The Commissioner announces that “this should not impact on consumer prices,” adding that most of the additional money collected would stay in Europe. He seems to ignore that a small but interesting publishing activity for recordings recently returned to the public domain exists in Europe, in particular for jazz and blues. These recordings, if not in the public domain would simply not be on the market.

One would just laugh at this “Beatles Perpetual Extension Act”, if it were not the sign of the complete autism of a few European politicians when the matter is to arbitrate between a few large-moneyed interests and the cultural commons. Let’s hope that the European Parliament will send the proposal where it deserves.

My post is not available in English, you can read the French version