The industry is working on its own solutions to the problem of copyright in the age of electronic reproduction. With the development of technical blocking mechanisms, "access rights" are taking the place of copyright. netzspannung.org spoke to the jurists Herbert Burkert and Thomas Hoeren about the political context of this development.
netzspannung.org: A discussion about copyright and user rights has begun which extends far beyond specialist circles. But the rights of authors do not appear to be at the centre of this discussion?
Herbert Burkert: In fact, the discussion is about something else. A poor poet, who, because of the Internet and digitalisation, has no income to mend his roof or finally get himself a PC, is a touching image. People like to drag it up from the collective unconscious to grab "sentimental attention" in support of their arguments. But the real key to the discussion lies in the large distribution flows or, to stick to the jargon, the future of the "return on investment" in the "content sector". The author needs to be consulted since the content mediators are caught in a life crisis, like Fassbinder's "traders of the four seasons".
As regards exchange products, the network is "end-to-end" and "peer-to-peer". Mediators can no longer be directly involved with the mediated product. They must remove their mediation service from the product, somehow make it visible and make it appear worthwhile and hope that the market recognises this worth. They must create additional uses and join together into communities. So the irony is that the "digital" Bertelsmann is now applying the same concept that made it big - by trying its luck with a club in the form of the Napster club.
But above all, change creates uncertainty. Uncertainty creates fear and fear leads to overreactions - that is the situation with copyright today. Technical development has thawed out the old political compromises that had been frozen into copyright. The distribution struggles can begin anew. The "author" can now pursue his rights to each digital product much more precisely thanks to information technology. Each individual copy of a product such as this is labelled. And the label can be traced to the end user - just like the plans that now exist for beef. These are known as "copyright management systems".
This is not geared to enhancing transparency for the user but rather at increasing transparency of use. For, the argument goes, there is now no justification for making private copies. This right was only a compromise anyway, as the monitoring of private use was too costly. That's great - the author is protected. Well, no one has anything against authors, do they? You think you have reached the heights of technological progress and can be rid of those troublesome problems like the interests of the individual and general interests. The conclusion which follows is then usually a bit more tentative - these copyright management systems are naturally too uneconomical for the author alone to use, it has to be done by the old mediators. So on we go, just like before - only better.
How can we address the issue of copyright for collaborative work forms? An example from the field of media art would be the following constellation: In the production of interactive environments or of projects that combine interaction on the Net and "in situ", a team of people is usually involved. There are two possible work forms for these projects. In some, programmers put into practice the concepts completed by the artists, which makes them the implementers. In other projects, programmers are already working with the artists at the development stage. Certain artists want to recognise this as a joint authorship. The question is to what extent these work forms in the context of the new media are reflected in the discussion of copyright issues?
Burkert: What is reflected above all is the following solution: All rights are bestowed on the person who provides the money for these brave new work forms; the investor determines the allocation formula, provides the funding, and if the result is particularly successful, he might offer a second helping. And perhaps over time, if a member of the team has been able to generate enough attention on the Net, he or she might succeed in improving the allocation formula and becoming an investor. This is nothing new: copyright law prepared this solution for films decades ago. And this is also the general trend of other changes in copyright law for the Net. It no longer comes down to work or intellectual creations.
It is now necessary to secure investment cycles. One example is the protection regulations for databases. Databases - such as factual databases - that do not represent any intellectual achievement were not protected under copyright law. They will now acquire protection that is similar to copyright simply if enough money has been invested in their development. So it is no longer a matter of intellectual achievement, but of investment. This means that investments of this kind have acquired an aura which is akin to work itself.
I don't want to be misunderstood: it is not a question of sentimental gestures of mourning for the old world from the standpoint of the digital world. But we must see clearly what is happening and state clearly what we see. It sounds good to put the "author", the "creator" or the "artist" on a pedestal. We can see how serious professional agents are about this sometimes in the distribution battles about artists' social insurance payments and in the European dispute about "droit de suite", which concerns the question of the extent to which artists should have a share in the profits of successive sales of their works in the art trade. It then suddenly becomes a matter of competitiveness.
To put it briefly, the concept of the author involves considering what it was always about: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries", as it is so well put in the U.S. constitution.
To what extent do you, as a lawyer, see netzspannung.org as a platform for testing new forms of collaborative production?
Burkert: You can go through test scenarios. This means drafting rules on how people should behave towards each other in a collaborative production. After a trial phase, you develop contract texts on the basis of the regulations and the experiences. These have to stand up to further testing, particularly in the solution of conflicts, so that the contracts do not lead to legal disputes that involve going to court. As with a doctor, the noblest function of the lawyer consists of preventing situations which he or she is needed for. Then it is even possible that forms of behaviour of this kind will at some time contribute to the shaping of legal standards beyond the scope of individually negotiated contracts.
Can you explain that with an example?
Burkert: With each of these cooperation models that you are putting onto the Net, you force artists to think about how to work with what is known as digital property and also to discuss this with each other and, as you are doing now, with other people, reconciling their wishes with the reality. When a large number of people are thinking about this matter, people's awareness is changed. Lawyers are also increasingly expressing dissatisfaction with what one lawyer once described - he was certainly exaggerating a little - as "copyright brawls". Finally, against the background of the above quotation from the constitution, discussion in the USA has been more open for a long time.
What direction do you believe the discussion of copyright will now take?
Hoeren: I see one problem in the fact that we lawyers are simply becoming superfluous. If the big companies like Sony and others proceed to shut their computers off, simply installing technical barriers while ignoring provisions for private use of copies, and this is legitimised in Brussels, then we will become superfluous. Sony, Bertelsmann and others will meet up in the global business dialogue and will push through their technical vision.
Burkert: I would expect technical reality to then be confronted by another technical reality, so that conflicts then emerge again, which will ultimately have to be resolved in the political arena and the solutions implemented in legal provisions.
Hoeren: On the other hand, we see that bit streams can't be controlled. This means that people shut off their computers, but on the other hand we have an Internet which has always been uncontrollable, which consists only of bit streams which you cannot dissect. So if we really want to depict a kind of science fiction, we have a battle that is no longer between lawyers and technicians, which would be about values, but just technical regulators versus hackers.
These are two opposing worlds: the hacker community versus those with the access rights. Jeremy Rifkin has written a book about this called "The Access Right". He came to the conclusion that such constructions as property rights and copyright are out of date and are being replaced by technical locking mechanisms that operate on the basis of access rights.
A simple example is Napster: It is completely irrelevant what was found on Napster premises, whether it is material that is protected by copyright or Callas singing in a recording that has long been in the public domain - you will still have to pay for it. This is what access right is about. The way has just been prepared for this in Brussels. The copyright directive that has been adopted is a disaster. Just by means of an innocent "may" instead of "shall" in a particular regulation, the protection of these locking mechanisms has been achieved in an unbelievably cunning way.
So what we are seeing is that property is disappearing, and copyright is disappearing. They are being replaced by the protection of technical locking mechanisms, and these lead to the emergence of access rights. This is a new category that is distinct from copyright and property and is being fought out in the technical arena. I believe that we lawyers will have nothing more to do with it.
So what seems to be needed is the role of a mediator between the wishes of the technology players and those of the others, whom you refer to as the opposing social movement. In theory, the EU could be a regulator of this kind. But you claim that the activities of the EU in this area are based on those of the people who develop the technology. This means that at the moment this social regulator or its opposite does not exist at the moment.
Burkert: I don't want to exclude the possibility that there have also been and still are voices of reconciliation - including in the European Commission, which initiated these packages of regulations, but will not have the final say on them. But it is all about interests and the power to protect and enforce these interests; the copyright battle has led to the most extensive lobbying the European Parliament has ever seen.
By the way, it is also interesting to observe that technical developments and the changes they bring also introduce new players into the arena, such as the manufacturers of tape recorders in the past and the access providers today, and these new players then certainly have the potential to become politically powerful allies in favour of ideas that were thought to have been a thing of the past, even if such coalitions are not motivated by ideals. These new players then see copyright problems in a more sophisticated way, especially when they are faced with liability or joint liability because they can offer more in financial terms than the others. Not least due to the effect of opposing interests like these, I believe and trust that over-developments will be compensated for - although not without cost to society.
You are currently developing a concept for a "Competence Center for Internet Policy". Could you briefly explain the importance of a centre like this?
Burkert: Yes, we in our NETSOC group  are in the process of developing a competence Center within the framework of the Institute for Media Communication and in cooperation with the Information Law Research Unit at the University of St. Gallen. The reason is obvious: There is insecurity about new developments connected with the Internet - I mean "Internet" as a generic term. This insecurity is being felt by the traditional shapers in politics, business and society.
However, insecurity about the insecurity also prevents the participation of new players and hampers the development of a critical public. This would include looking a little more closely at what is happening. The themes - the Internet and freedom of opinion, the Internet and trust, the Internet and democracy, the Internet and individual and national identity, the Internet and knowledge - show the Internet as a projection surface for our modern-day culture; these themes get into newspaper arts sections without being deemed worthy of more intensive research - take for example the ICANN  elections. Unfulfilled dreams of global democracy and global government seemed to be taking shape, and the shape seemed to be German. Then it was no longer a matter of the political aspects of technical standardisation and real possibilities to influence decision-making processes using communication resources. In the light of the magic of the "global elections", people were no longer interested in the reasons why and in who had what responsibilities towards whom.
In addition, it is about models of understanding that have to be developed and exchanged. Groups working on Net policy or Net law already exist. We are not aiming simply to found another of these groups. But these groups are islands in themselves. Due to our closeness to basic research in information technology at the GMD, but also on the basis of our experience over many years, particularly in the international context, in the field of information and communications law and policy, we are in a position to evaluate such offerings.
We can bring together supply and demand, cause gaps to be filled systematically and also participate directly in the exchange. This means that we can adopt one of the new mediating roles I mentioned earlier. In this way, we are currently developing together with others an evaluation and action model for the future design of ICANN. And with reference to the copyright issues we have been talking about, we are considering bringing together discussions on alternative models and making them publicly available.
Thank you for the interview.