SANTA MONICA — Anyone who has been in the copyright policy space awhile knows that the music industry is frequently described as the “canary in the coal mine.” The analogy comes from the tradition of miners bringing caged canaries into mines to gauge how toxic the air was. If the canary died, they should probably get out. About ten years ago Napster was the toxin that allegedly killed the music industry. That cliche was raised here at Digital Hollywood — again — although one speaker noted that in fact the newspaper industry was the first canary, as their content required even fewer bytes than did a music download.

Of course, the music and newspaper industries are fortunately still with us, but many of the creators and employees of those industries have been forced to find other work. So the canary isn’t really dead, but it did serve as a warning.

In listening to representatives here of creative content producers, distributors and technologists, a recurring theme I heard was that in the digital age, we have to look at how “content” is dealt with globally, not just in our borders. A country several cited was Spain.

Last week the U.S. Trade Representative released this year’s Special 301 Report, listing 41 U.S. trading partners not sufficiently meeting their own treaty obligations on IP protection. Spain remains on the watch list; here’s USTR’s take:

The United States remains concerned about particularly significant Internet piracy in Spain, and strongly urges prompt and effective action to address the issue. The Spanish government has not amended portions of a 2006 Prosecutor General Circular that appears to decriminalize illegal peer-to-peer file sharing of infringing materials, contributing to a public misperception in Spain that such activity is lawful. Spain’s existing legal and regulatory framework has not led to cooperation between Internet service providers (ISPs) and rights holders to reduce online piracy. On the contrary, rights holders in Spain report an inability to obtain information necessary to prosecute online IPR infringers, further reducing their ability to seek appropriate remedies. Spain’s legal system also generally does not result in criminal penalties for intellectual property infringement. The United States is encouraged by some recent positive developments in Spain, including the establishment of an Inter-Ministerial Commission with a mandate to propose changes in Spanish law and policy that will strengthen efforts to reduce Internet piracy. In January 2010, the Commission proposed legislation that would allow a committee based in the Ministry of Culture to request that an ISP block access to infringing materials hosted online. The United States urges Spain to continue taking positive steps to address Internet piracy, and will closely monitor progress in the next year.

In short, there’s a perception in Spain, borne out by government inaction, that as long as you’re not trying to profit from massive infringement, you should knock yourself out. This commercial/noncommercial distinction is one you see some academics make, but our court system has held that in fact infringement is a commercial activity, because it deprives income from the owner of the work.

You’ll see this “free culture” in Spain celebrated by some on Internet message boards, folks in Spain loving every downloading minute and encouraging that “freedom” for other parts of the world. But let’s look at how the Spanish canary is really doing.

It’s certainly hurting Spanish artists and creators. Thousands recently signed a petition urging the Spanish government to take action against unauthorized file-sharing. There’s good reason for Spanish musicians to be concerned. IFPI documented this in its most recent report on the global music industry, and here’s a passage from The New York Times on the study:

In Spain, where music sales have collapsed, there were no albums by domestic artists among the top 50 sellers last year, compared with 10 as recently as 2003, the music federation said. In a report, it blamed what it called a “culture of state-tolerated apathy toward illegal file-sharing.”

That sentiment on Spain was echoed here by speakers from other industries. Susan Cleary of the Independent Film and Television Alliance noted that independent films have won the last five Academy Awards for Best Picture, but that financing for future films such as “The Hurt Locker” are in fact hurt when global markets turn rogue.

A lot of money is needed to make not just major studio blockbusters but independent films as well, and that money is often raised through international licensing agreements. If there is no real “market” in Spain that anyone would pay a license for, then that is less money that can be given up front to help produce the film.

“We need to be able to create, fund and distribute films,” Cleary said, but independent films are “probably hurt even more by piracy” because of the challenge of procuring loans before production begins. As more markets become like Spain, she said, funding dries up, because investors in those markets realize “you can’t compete with free.”

“In Spain the media business is being destroyed,” said Andrew Keen, author of The Cult of the Amateur.” The cultural mythology surrounding “free” in Spain is of course here in the U.S., he noted. “If you accept this argument, then the professional content industry in this country is dead.”

Cleary noted that several countries are experimenting with law and technology to help ensure the rights of copyright owners online, and USTR above notes they are tracking a current government proceeding in Spain meant to clear up any confusion about what is in fact illegal activity regarding file-sharing. Cleary said as long as Internet users have due process, technology should play a role in protecting creators’ rights online.

“You have to be aggressive to protect your copyright, because it’s your only asset.” Without it, she said, “we can’t create.”

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This entry was posted on Wednesday, May 5th, 2010 at 8:36 am by Patrick Ross and is filed under copyright opponents, creators, culture, events, international, p2p, piracy. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.