Internet: Time for a Change

When considering the issue of Internet copyright, we hardly ever ask ourselves: why do we treat the Internet as a separate realm in which, for some reason, copyright follows a different set of rules? Why isn’t standard copyright enough on the Internet?

To answer this question, we need to go back to the times of President Clinton. In 1995, Americans commercialized the Internet, which had for the first twenty five years been only available to universities, research facilities, and the military. Ordinary citizens couldn’t access it – not that they would have had much use for it if they could.

At that point Europe had already had commercial computer systems, accessible to ordinary citizens, for over ten years. The most well-known one was the French Minitel, immortalized by Houellebecq in his “Broadening the Field of Struggle”. In Europe, these services were used for the same things we use the Internet for now. Citizens of Germany, France, or Great Britain, could access them to book a hotel, make a bank transfer, argue about politics, or even share erotic fantasies with each other (if you were a Houellebecq character, that last option would be your primary interest).

In Poland, it is still in vogue among politicians to treat works of culture as trade goods. For the French or the Germans this would be unacceptable

An average American couldn’t do that yet. Which was humiliating, since Americans don’t like to be second-best at anything. Thus, Clinton’s priority was to shape the Internet commercialization law in a way that would propel the US to the top spot.

In this he succeeded. Bruce Lehman, who was the Clinton administration’s intellectual property tsar, proposed that Internet companies should be granted certain legal privileges. It was the height of the world’s love affair with globalization. In 1995, during the so-called Uruguay Round, the World Trade Organization was created in place of its predecessor, the General Agreement on Tariffs and Taxes (GATT). Future generations will remember this period as a brief anomaly that lasted for about two decades. The previous attempt at globalization, the 1970s Tokyo Round, had failed – and currently globalization is generally in retreat, as evidenced by the collapse of the Transatlantic Trade and Investment Partnership.

One of the reasons for the current reversal of globalization’s fortunes is the fact that people in democratic societies realized that free trade treaties often include provisions whose link to “free trade” is tenuous at best – Including, unfortunately, ones that pertain  to culture.

In Poland, it is still in vogue among politicians to treat works of culture as trade goods. In the 1990s, it was even worse. For the French or the Germans this would be unacceptable. In those countries, culture is the domain of the Ministry of Culture, so issues of trade and the Internet should be handled by other entities.

Unfortunately, one of the side effects of European globalization treaties is that the last word in the question of culture belongs to the Commissioner for Trade (currently: Cecilia Malmström), and not to the Commissioner for Education, Culture, Multilingualism, and Youth (currently Tibor Navracsics). Even the scope of Commissioner Navracics’s portfolio is telling in regard to how high culture ranks on the European Union’s priority list.

But in the 1990s, no one was asking these questions. Globalization was seen as the solution to all the problems of trade, culture, youth, and sport. That’s why the legal solutions proposed by the Clinton administration were adopted by the entire world – including Poland, and the European Union (which we were not yet part of at that point).

Chief among these privileges is the so-called safe harbor clause which states that Internet companies are not responsible for illegal content as long as they react accordingly when notified about it

The privileges devised by Lehman are listed in Poland in the “Act on Digital Services” (“Ustawa o świadczeniu usług drogą eletroniczną”, abbreviated to UŚUDE). The act cannot be altered in any significant way, because its contents need to comply with international treaties. Chief among these privileges is the so-called safe harbor clause which states that Internet companies are not responsible for illegal content as long as they react accordingly when notified about it.

Let us note here that a similar privilege could have also been granted 20-30 years ago to other industries. When Bruce Lehman was coming up with the safe harbor clause, VHS and DVD rental shops were still alive and well.

If they had been granted such a privilege, here’s how it would go down: video rental shops would offer pirated versions of films, believing their clients’ word that they personally made amateur versions of “Jurassic Park” or “Avatar”. The copyright holder could only run from one rental shop to another, looking for pirated copies to report. And upon receiving such a report, the shop owner would ceremoniously remove one of the copies – leaving all the other ones on display, of course.

Sounds absurd? Well, that’s exactly how the Internet works. If privileges like these were given 20 years ago to the Blockbuster rental chain, it would now be as powerful as YouTube, seeing as this privilege is the cornerstone of the online video platform’s success.

For a small fee, the copyright holder can have YouTube remove not just one, but all copies of copyrighted material. And that’s exactly what VHS rental shops would be able to profit from (removing, for example, all pirated “Jurrasic Parks” but keeping  “Avatars”, because Cameron hasn’t paid up).

The negative side effects of the safe harbor clause are not limited to piracy. It is also the main reason why Internet discussion forums can profit from hate, inciting violence, homophobia, anti-Semitism, racism, and sexism. All it takes is the fig leaf of “reacting to reports”.

But who would have the stamina to report every single racist comment? And what’s the use of removing just one and leaving the rest up? The author of this solution has since admitted in interviews that today he would have written the law differently. Unfortunately, he didn’t, and changing the situation is practically impossible.

Privileges for Internet companies are enshrined forever within an international treaty. In order to change it, one would have to invite diplomats from all over the world to some sort of tropical resort, and organize a Maldives or Seychelles Round to fix that which was broken during the Uruguay one.

That is unlikely to happen, so we need to resort to legal prostheses. Imposing a special fee on Internet companies might not be a perfect solution, but it is the best one available. And definitely the most just.

Because if they enjoy special privileges based solely on the fact that they operate on the Internet – and thanks to them have grown into monopolistic giants – let them at least pay society back for that opportunity.

—Wojciech Orliński (translated by Wojciech Góralczyk)