The Dutch Download Debate: a glass of water, toilet breaks, squatting and the (nonexistent) download ban

Yesterday the Great Download debate took place in Amsterdam. First on the floor were Bits of Freedom (civil rights), the Consumer Union, Entertainment Industry Rights Protection Netherlands (BREIN), the Creators Platform (Platform Makers), information law professor Hugenholtz and (former) marketing manager of the popular artist Kyteman.

Ot van Daalen (Bits of Freedom) proposed a "right to internet', instead of a download ban. A download ban will not be enforceable without an extensive monitoring of all internet traffic, he stated. To find out what internet traffic is infringing copyright and what is not, the entire internet traffic will have to be scanned. That would mean a disproportionate infringement on the privacy of citizens. The entertainment industry has had 13 years since Napster was banned to come with a legal alternative to illegal file sharing. In the absence of legal, user-friendly, online distribution methods citizens are forced to use other channels that do offer this kind of service level. With Spotify being introduced only a week ago, it is BREINs own fault that there is so much content being downloaded now. The industry should therefore focus on updating its old distribution channels instead of pursuing the criminalisation of their biggest fans.

Tim Kuik, director of BREIN, replies. Kuik focused attention on the core of copyright: giving authors of creative works the exclusive right to decide for themselves what they want to do with their work and under which conditions they might make it publicly available. This exclusive right gives them or the people to whom they transfer these rights, a source of income. It is the entertainment industry’s own choice, how to organize its distribution channels. Meanwhile, the industry is making an effort, says Kuik, referring to Spotify. Kuik draws attention to the fact that BREIN is not suing fans who download music and movies, but only those who illegally and widely offer music and movies online. A download ban would be very useful according to Kuik, so uploaders are no longer able to hide behind the argument than “when downloading is legal, uploading should be the same”. Kuik explains the need for a download ban, by pointing out: “It's like theft. If theft is illegal, so should be fencing”, says Kuik.

Niels Aalberts, the (former) marketing manager of the popular artist Kyteman is not happy with all the negativity surrounding the copyright and download discussion. He does believe that an artist has the right to a fair compensation, but that this should not be taken to far at the expense of the fans. Nowadays consumers want entertainment available when they want it, how they want it, quickly, safely and without technical protection measures. Modern technologies like BitTorrent and Internet make this possible, but the entertainment industry seems to be stuck in old business models and should realise that it is at their own expense that fans have to turn to other channels to get what they want. Fans are willing to pay for convenience. He illustrated this by means of some nice comparisons: people enjoy eating out in a nice restaurant. There you can drink free water from the bathroom tap, but you’d much rather stay on your seat and order it from the waiter and pay a little extra. Referring to the time it took the industry to come with a legal alternative in the Netherlands: "It's like saying to a 3-year old child, sorry, we have no toilet, just hold it up for 13 years."

Leah Postma (Consumer Union) made clear that the solution for the illegal exchange of copyright protected material via the internet should not be found in a download ban. This would have unacceptable complications on consumer’s privacy to enforce. Rather, the industry should offer legal online alternatives instead.

Erwin Angad Gaur (Creators Platform) drew attention to the fact that much attention goes out to the restrictive side of copyright, while it is intended to secure a fair compensation for the creative efforts artists, photographers, designers, musicians, film makers invest in their products as well as personal rights, like the right to have their name mentioned and a right to object to disfigurement of their work. The current copyright system is fairly balanced with different kinds of exceptions and a fair system with levies on data carriers, distributed by collective rights organisations.

Professor Hugenholtz of IViR made clear to the audience that not everything is possible within the existing legal framework. Many international and European conventions and directives bind the Netherlands, limiting possibilities to change copyright rules. For instance the Netherlands is allowed to cancel the current private copy exception (the reason why downloading is legal in the Netherlands), although Hugenholtz is no proponent of this. A limitation of the duration of copyright to a period shorter than 70 years (after the author's death) is not possible though. A system as proposed in Belgium, whereby ISPs are charged with a copyright fee, would fall within the legal scope. Or as they do in Norway: pay from the public purse a fee for exchanging copyrighted materials online. This requires enough in the purse though (which is currently not the case in the Netherlands).

Then the politicians took over the floor.

Arda Gerkens (SP) and Fred Teeven (VVD) both agreed that the entertainment industry should come with good legal alternatives to illegal file sharing first, before allowing a download ban. Teeven: "Compare it to squatting. In the eighties there was support for squatting, because of the housing shortage. Since the shortage is now gone, it is no longer supported." However, while Teeven feels that the download ban should be enforced by monitoring the internet, Gerkens takes a lot more caution. She believes that the ban itself will have a deterrent effect. The remainder of people that will keep on downloading illegally (20% in Sweden), should be taken for granted. Gerskens also explains that to ensure a reasonable fee for makers, either downloading should be banned, or a system of taxes or licenses should be adopted. If not in favor of a download ban, the taxes or licenses are the logical consequence. Teeven clearly disapproved of the last option.

Mariko Peters (Groen Links), repeated the party’s plans to shorten the duration of copyright. Although the initial proposed duration of 10 years was been dropped, Peters pointed out that 97% of investments return in the first years. The party’s plan must be for the long term though, given the legal obstacles Hugenholtz previously put forward. Peters also made a point to fight for a 'remix’ right, so that existing material could be reused.

D66 Judith Swinkels, was clearly more up to speed on copyright law and pointed out the possibilities for remixing under the existing citation right. She also explained to Teeven, who argued that the internet should be monitored, (not through meters, but by "remote monitoring”) that in practice the download ban means deep packet inspection, were all content is checked.

Samir Allioui, leader of the Pirate Party, primarily focusing on a limitation of copyright, did not so much participate in the debate, but more or less spontaneously interrupted politicians to air (false) accusations, a number of conspiracy theories about the entertainment industry and demand shorter duration of copyright and information freedom. When describing the Pirate Bay operators as 'hobbyists' and 'idealists', the public clearly disagreed.

PvdA-member Martijn van Dam was a little contradictive. He argued sharply against a possible download ban, but at the same time opposed levies as well. Teeven found this remarkable, since Van Dam’s colleague Pauline Smeets had been working for months with him and Gerskens in the parliamentary committee which proposed the discussed download ban in the first place.

28 May 2010