kiskis em last jd workshop nov 2013 legal framework for digital content
DESCRIPTION
ÂTRANSCRIPT
Legal Framework for Digital Content
Prof. dr. Mindaugas Kiškis Mykolas Romeris
university
Three dimensions of the Digital Content
Legal – legal framework
Economic – business models
Technological – delivery
plaEorms and formats
TradiFonal Content
• TV & Radio • Print media • Audio/Video on physical media (CDs, DVDs, etc.) • SoOware ?
Main features of the tradiFonal content
• Local – geographically limited distribuFon • Physically fixed – TV can be seen only on TV box; • Single-‐plaEorm – CD can be played on a CD player, but not on smartphone. • TradiFonal business models (hardcover à paperback; cinema à DVD àTV)
Ways in which tradiFonal content is regulated
• BroadcasFng and spectrum regulaFons • Intellectual property regulaFons (licensing, collecFve administraFon...)
• Media regulaFons and media licenses • Cultural/ethical regulaFons (naFonal content requirements, explicit content)
• AdverFsing regulaFons • Consumer protecFon (pay TV and pay-‐per-‐view, and other added value services)
Technological development
• Technology enabled: – Add-‐on digital (cable and telecom content services) – New models (internet/cloud based digital content)
• Hardware in many ways ahead of the content availability
Digital content
• Inherently global, inherently mulFplaEorm, inherently fluid • EnFrely new forms of content creaFon and distribuFon • New ways of consumpFon (ad free, binge viewing, over the air TV streaming to the internet) • Fully two way interacFve
Trends of the digital content
• App stores – digital supermarkets for all kinds of content (soOware, music, ebooks, video) • NeElix, Hulu, SpoFfy, Xbox Live, etc. – digital bouFques for some types of content
Original content is increasingly being produced by the plaEorms
Subsidised hardware
Simultaneous mulF-‐plaEorm consumpFon
Bespoke content for individual consumer
TradiFonal vs. digital content • Digital content is overtaking the tradiFonal content faster
than ever, but not evenly in all areas • Lack of compeFFon for the tradiFonal content – higher prices
and lesser quality • Consumers are finding ways to access and consume digital
content • Cyberspace whether we want it or not is the instant global
marketplace -‐ if no legal sources are available, illegal sources take over instantly
• Unexpected compeFFon (all content competes for our Fme – thus, ads on the internet compete with TV ads)
Novel risks of digital content
• Intellectual property infringement • DRM – Unjust restricFons on consumers – New ways to restrict compeFFon
• Privacy
Legal framework for content
• Based on the tradiFonal rules of the copyright law, contract law, product law, advertsing law and consumer law
• NaFonal jurisdicFon based • Strictly naFonal language • NaFonal collecFng socieFes for licensing • High compliance and market entry costs • 28 different regimes in the EU alone
This leads to digital content delays/absence in smaller markets
• Itunes in LT only in 2011 • SpoFfy in LT only in 2013 and limited • NeElix, etc. – never ?
Consequences of delays/absence • New content is late (late culture = late innovaFon) • Consumers are finding ways to access and consume digital content (giO cards, proxy servers, illegal sources, etc.)
• LegiFmate sources enter grey area (serving cross border, although not licensed, not complying with local adverFsing, language and consumer regulaFons)
• Limited compeFFon for the tradiFonal content, resulFng in higher prices and lesser quality
Can we correct for this through regulaFon?
• We parFally can • Full correcFon only possible only through combinaFon with new economic models and enabing technologies
Designing the legal regime for the digital content
InternaFonal level
SupranaFonal level – the EU
NaFonal level
InternaFonal level
• AddiFonal protocol of the Cybercrime ConvenFon • Movement towards unified principles of the freedom of speech/expression
SupranaFonal level • Single EU Market for the digital content shall be the
underlying principle – currently content industries are in many way exempt from Single Market
• Single market needs single jurisdicFon and single compliance mechanism
• The EU jurisdicFon may be an opFon, but it will take too long • Instead we shall adopt reciprocal compliance principle • If legal compliance is achieved in one EU country, it shall be
accepted as sufficient in the other countries (US model ?) • The providers shall be disallowed to distribute content based
on country exclusivity
Current EU inFFaFves
• EU rights management direcFve – DraO presented in 2012 – Vastly inadequate
• Personal data regulaFon – Ignoring digital content needs
• No comprehensive regulaFon
NaFonal level
• We have to recognize the limits of naFonal regulaFon (not possible to control technology and cross-‐border access) • OverregulaFon results in expatriaFon • The law shall no unjustly protect incumbents
NaFonal level • We have to rely more on the freedom of agreement is some areas, but limit the freedom in other areas
• ProacFvely addressing the compliance/bureaucracy Fme and expense
• PrevenFng anFcompeFFve behavior (country exclusivity in the Single market)
• Consumers shall have the freedom to accept content in the foreign language (not the language of the content, but the legal language)
Why proacFve regulaFon on digital content is necessary and urgent
• Lost (pirate) generaFon in smaller countries/markets • Lost investment/advantage in broadband/fiber • Cultural diversity • More compeFFon – bejer value and quality • New opportuniFes for naFonal content
Thank you for your ajenFon !