Guide to answering copyright consultation
Answers by topic
Yes to copyright reform:
Q 4, 7, 78, 79
Question 7 and Question 78-79: yes we want there to be a legal reform, and yes we want a single European title. this is by far the best way to get legal certainty for everyone. copyrightcode.eu is a good example of how such a simpler copyright scheme could look. In question 4, you can also mention that copyright harmonization through legal reform would be the best solution for accessing content all over Europe.
Q 22-26, 80
If you want to legalize file-sharing, you need to emphasize that sharing of culture and making private copies on the internet should be permissible when you answer questions 22-26. You can also add additional comments on enabling the legally certain operation of torrent trackers in question 80. European Unionen tradition is rooted in peer-to-peer: we have the tradition since a long time to enable cooperation on an equal, symmetric and transparent basis. European internet and copyright values should reflect that.
Q 13, 32(b), 36(b), 80
DRM concerns on the one hand library databases and access at universities. This is question 32(b) and 36(b) for private persons and end-users.
But it should also be more extensively addressed in question 80. This essay covers important differences between EU and US law: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2338976
It should be clarified that DRM should not interfere with any of the legal flexibilities, rights or opportunities granted to users of culture. Also DRM should not override the exceptions and limtations codified in law. We want legislators to decide what legal and technical rights people have and do now have. Technology companies should not do that.
DRM can also be mentioned in question 13 that asks if one has experienced problems with trying to re-sell digital works.
- protection terms
If you want shorter protection terms, answer question 20! A reasonable protection term according to Rufus Pollock (British economist at Cambridge University) is about 15 years. Rick Falkvinge and Christian Engström have proposed 25 years maximum protection. The PP-CZ proposes 5–10 years.
See Falkvinge/Engström: http://www.copyrightreform.eu/ Rufus Pollock: http://rufuspollock.org/papers/optimal_copyright_term.pdf
- registration requirements
Questions 15-18. In many countries around the world one previously needed to register the copyrighted work one wished to commercially exploit with a central copyright registry. This brought greater legal certainty and clarity to a lot of actors. Copyright by default creates a lot of problems because it is impossible to find out who is the right owner of the right.
In particular mandatory registration to have a copyright should be required. https://en.wikipedia.org/wiki/Copyright_registration#Is_registration_required.3F
Copyright limitations and exceptions
Q 21, 22
Answer yes to questions 21 and 22 to make sure that all exceptions and limitations to copyright (for example for the purpose of science and education) are made mandatory for all member states!
Q 21-26, 32(b), 36(b)
Libraries and DRM are covered DRM in question 32(b) and 36(b) for private persons and end-users Also questions 21-26 on more generic flexibilities in copyright. Consider the Swedish library fund - is it valuable? (basically a tax sponsored levy which goes only to Swedish authors)
Questions 21-26. In particular the quotation and citation right needs to cover also audio and video. Similarly for educational remixing (remixing to educate people). Parody, quotation, citation, educational remixing must cover audio, images and video (audio-visual).
Competition in derivative markets (advertisement) will be hugely advantaged by a remixing exception which doesn't exclude commercial remixing (DJs, advertisers, et c) so it's important that these exceptions cover also commercial activities.
Mention that remixing is a popular cultural activities that bridges cultural barriers between people from different member states and must therefore be promoted as a means of European integration.
- fair use
If you want a fair use clause in European copyright, question 24 is the right place to mention it. You can argue that it would provide the copyright framework more flexibility to react to future technological developments and innovative uses of culture i.e. for purposes of reporting and artistic expression.
- visually impaired
Questions 21-26. The European Union has already supported the Treaty for the Blind at WIPO which ensures better accessibility to literary works for visually impaired.
About the treaty: http://keionline.org/node/1767
Michel Barnier (EU Commission) supports the treaty: http://europa.eu/rapid/press-release_MEMO-12-603_en.htm
- no extension of copyright to fundamental functions of the Internet (caching, linking)
Q 11, 12
It's important that questions 11-12 are answered negatively - linking, hyperlinking and viewing webpages should NOT be considered copyright infringements. There have to be ways of permitting this, otherwise the internet breaks.
- p2p torrent networks type things
Q 13, 14, 21-26, 80
Peer-to-peer networks, torrent networks, file-sharing and distributed culture is in questions 21-26 (flexibilities in copyright - they should allow for this), or question 80.
Allowing for second-hand sales (question 13-14) would also be conducive to finding new, less monolithic business models for the European Union.
Answers by question number
Rights and the functioning of the Single Market
A. Why is it not possible to access many online content services from anywhere in Europe?
In particular if you are an end user/consumer
Have you faced problems when trying to access online services in an EU Member State other than the one in which you live?
If Yes: Possible examples: Blocked YouTube Videos, unavailability of Netflix, Spotify, Deezer, restriction of iTunes content because of the country you live in, or non-accessible public service broadcasting content (BBC, WRT, SVT…) etc. → Please write down in which country this happened!
In particular if you are a service provider
Have you faced problems when seeking to provide online services across borders in the EU?
Might be applicable if you are an artist trying to distribute your works online.
Is certainly applicable if you have a webstore, do streaming, provide subtitles for popular films, torrent trackers or any other kind of activity which isn't strictly sales related.
In particular if you are a right holder or a collective management organisation
How often are you asked to grant multi-territorial licences? Please indicate, if possible, the number of requests per year and provide examples indicating the Member State, the sector and the type of content concerned.
Leave blank if you've never had to deal with licencing your work before.
If you have identified problems in the answers to any of the questions above – what would be the best way to tackle them?
Some ideas: - copyright in the EU should be harmonized - copyright should not apply in the place where content is offered, but where it is accessed by a user [it seems more fair to citizens that its their law which applies] - national collections agencies should not be able to enforce right against the will of the artists they represent (GEMA vs. Youtube) - have a single european copyright title (effectively a copyright regulation) - european notice and action rules would help against EU citizens being afflicted by third country legislation that is different from that on their home market. - there needs to be an exception for essentially competition enhancing activities in the copyright legislation, that clarifies that you are allowed to bring new ideas on to the market without prior approval or burdening license fees.
In particular if you are a right holder or a collective management organisation
Are there reasons why, even in cases where you hold all the necessary rights for all the territories in question, you would still find it necessary or justified to impose territorial restrictions on a service provider (in order, for instance, to ensure that access to certain content is not possible in certain European countries)?
No. (probably doesn't apply to you)
6. [In particular if you are e.g. a broadcaster or a service provider:] Are there reasons why, even in cases where you have acquired all the necessary rights for all the territories in question, you would still find it necessary or justified to impose territorial restrictions on the service recipient (in order for instance, to redirect the consumer to a different website than the one he is trying to access)?
No. (probably doesn't apply to you)
7. Do you think that further measures (legislative or non-legislative, including market-led solutions) are needed at EU level to increase the cross-border availability of content services in the Single Market, while ensuring an adequate level of protection for right holders?
Yes. Legislative measure needed: Harmonization of copyright. This will solve problem of different rules in different countries and will make copyright more easily understandable and therefore more legitimate. Making it easier for content producers to offer content under free, nonrestrictive licences (e.g. in Germany, artists represented by GEMA may not use CC licences for individual works)
B. Is there a need for more clarity as regards the scope of what needs to be authorised (or not) in digital transmissions?
8. Is the scope of the “making available” right in cross-border situations – i.e. when content is disseminated across borders – sufficiently clear?
9. [In particular if you are a right holder:] Could a clarification of the territorial scope of the “making available” right have an effect on the recognition of your rights (e.g. whether you are considered to be an author or not, whether you are considered to have transferred your rights or not), on your remuneration, or on the enforcement of rights (including the availability of injunctive relief*)? * Injunctive relief is a temporary or permanent remedy allowing the right holder to stop or prevent an infringement of his/her right.
10. [In particular if you a service provider or a right holder:] Does the application of two rights to a single act of economic exploitation in the online environment (e.g. a download) create problems for you?
Yes: Accessing content should not be covered by copyright. Copyright should cover the act of making something available in a way which clearly interferes with a present and existing way of making money from making a work available.
11. Should the provision of a hyperlink leading to a work or other subject matter protected under copyright, either in general or under specific circumstances, be subject to the authorisation of the rightholder?
No. Being able to link to other webpages without having to ask permission is vital to the functioning of the internet. Any breach of that principle would make it virtually impossible for individuals without legal expertise and resources to contribute to the creation of knowledge and culture on the Internet.
12. Should the viewing of a web-page where this implies the temporary reproduction of a work or other subject matter protected under copyright on the screen and in the cache memory of the user’s computer, either in general or under specific circumstances, be subject to the authorisation of the rightholder?
No. Copying content to the cache of a computer in order to view it is a technical necessity for accessing content. It is not the kind of reproduction of material that copyright is trying to address and should under no circumstances be covered by copyright law.
13. [In particular if you are an end user/consumer:] Have you faced restrictions when trying to resell digital files that you have purchased (e.g. mp3 file, e-book)?
Yes. Just mention a scenario where it was (theoretically) impossible for you to resell digital works you have bought, for example: - video games that require one-time online registration - music that can only be copied a fixed number of times - files that only work on a specific operating system and therefore can't be sold to anybody who uses a different system - e-books that only work on a particular e-book reader - anything with DRM
14. [In particular if you are a right holder or a service provider:] What would be the consequences of providing a legal framework enabling the resale of previously purchased digital content? Please specify per market (type of content) concerned.
We would be having more local entrepreneurs from Europe enabling second-hand access to computer games. Existing endeavours in this field have been much appreciated by customers and stores managers.
Without clear rules on digital rights management and technical protection measures for copyrighted content we are unlikely to see any strong secondary market development in either content market. It could however lead to secondary European vendor markets that are presently not possible.
C. Registration of works and other subject matter – is it a good idea?
15. Would the creation of a registration system at EU level help in the identification and licensing of works and other subject matter?
16. What would be the possible advantages of such a system?
Examples: - it would be much easier to find out who the creator of a work is and to pay them, since there would be a registry that I could consult. - the legal status of a work would be much more transparent - For a huge number of works, it's impossible to find out who created them (orphan works). If copyright has to be registered, this problem is resolved because unregistered works would be commons by default. - I often want to produce content and just make it commonly available to anyone without being bothered about it again. Under the current copyright framework, this is impossible, as I can't get rid of my rights, even if I want to. - A registration system could offer different copyright terms as needed. For example, the default could be 10 years (because very few works are actually commercially important after that term), but renewed registration could prolong the copyright term, e.g. by another ten years. This way, works that are no longer commercially exploitet could enter the public domain more quickly and contribute to free culture and knowledge, while the commercial interests of rightsholders would be protected.
17. What would be the possible disadvantages of such a system?
18. What incentives for registration by rightholders could be envisaged?
Examples: - the registry could offer a simple licencing system that would make it easier for rightsholders to licence their works and get paid - the registry could improve the visibility of works - it would be easier for people who want to re-use the works to get in contact with the creators - the length of copyright terms could be tied to registration
D. How to improve the use and interoperability of identifiers
19. What should be the role of the EU in promoting the adoption of identifiers in the content sector, and in promoting the development and interoperability of rights ownership and permissions databases?
E. Term of protection – is it appropriate?
20. Are the current terms of copyright protection still appropriate in the digital environment?
No. Please note: In this question it is extremely important that you specify your answer, because „No“ can mean either that copyright terms should be longer or shorter!
So please specify: The copyright terms are too damn long. They should be shortened. A reasonable protection term according to Rufus Pollock (British economist) is about 15 years. Rick Falkvinge and Christian Engström have proposed 25 years maximum protection. The Czech Pirate Party proposes 5–10 years.
Limitations and exceptions in the Single Market
21. Are there problems arising from the fact that most limitations and exceptions provided in the EU copyright directives are optional for the Member States?
The Infosoc Directive is meant to harmonize the European digital single market. Instead it provides more than 24 quintillion implementation opportunities according to some observers (http://webjcli.org/article/view/245/317).
The exceptions and limitations are also too few and unflexible. They have been interpreted too narrowly, and differently narrowly, in different member states which creates legal uncertainty for both private users, entrepreneurial users and institutional users.
Many member states have opted for not implementing optional exceptions and limitations to reduce the complexity of implementing EU law. This has caused many groups, like visually impaired people or librarians, teachers or students, to suffer an exceptionally uncertain situation with respect to rightsholders.
22. Should some/all of the exceptions be made mandatory and, if so, is there a need for a higher level of harmonisation of such exceptions?
All exceptions should be made mandatory. Also an opportunity to interpret exceptions more broadly should be put in a future regulation.
23. Should any new limitations and exceptions be added to or removed from the existing catalogue? Please explain by referring to specific cases.
Yes, there should be an exception for official texts e.g. by public administrations. They should not fall under copyright.
There should be a copyright exception for remixing.
In particular the quotation and citation right needs to cover also audio and video. Similarly for educational remixing (remixing to educate people). A quote should be defined in terms of what is needed for the quote, not in terms of what the rightsholder wants to strike licenses for. Parody, quotation, citation, educational remixing must cover audio, images and video (audio-visual).
Competition in derivative markets (advertisement) will be hugely advantaged by a remixing exception which doesn't exclude commercial remixing (DJs, advertisers, et c) so it's important that these exceptions cover also commercial activities. (see art 5.4 : http://copyrightcode.eu/index.php?websiteid=3)
An open-ended exception or flexibility that allows for courts to make analogies with other exceptions (like a European fair-use) would not be bad.
In Sweden, the reasonability requirement on the educational exception was introduced so that teachers could only copy up to about 15 pages of text. Now all the textbooks feature 16 page-chapters, but also all teachers structurally violate copyright law and are being asked to copy stuff rather than buying new books. Copyright should clearly be more conducive to keeping competition high and text book prices low, while at the same time not criminalizing those who copy 16 instead of 15 pages.
Exceptions & limitations for text & data mining?
24. Independently from the questions above, is there a need to provide for a greater degree of flexibility in the EU regulatory framework for limitations and exceptions?
New technological developments may cause copyright regime to stifle innovation and exchange of culture.
But in particular, it is necessary with more legal certainty for users of cultural works. Currently rightsholders enjoy all the legal certainty and all the privileges - a user can never be sure of theirs. This needs to change - using culture to build European markets and European friendships is also beneficial for the EU.
25. If yes, what would be the best approach to provide for flexibility? (e.g. interpretation by national courts and the ECJ, periodic revisions of the directives, interpretations by the Commission, built-in flexibility, e.g. in the form of a fair-use or fair dealing provision / open norm, etc.)? Please explain indicating what would be the relative advantages and disadvantages of such an approach as well as its possible effects on the functioning of the Internal Market.
Introduction of a Fair Use clause: It would provide the copyright framework more flexibility to react to future technological developments and innovative uses of culture i.e. for purposes of reporting and artistic expression. Also, it would make sure that copyright fulfills the purpose of fostering culture and innovation, not restricting it.
Right to Remix: In particular the quotation and citation right needs to cover also audio and video. Similarly for educational remixing (remixing to educate people). Parody, quotation, citation, educational remixing must cover audio, images and video (audio-visual).
A right for private persons to make public works at their leisure:
We need to introduce a specific making-available right extended private persons acting non-commercially. This is the most intuitive way of using the internet and also one which has brought much innovation in p2p-technologies, distribution, arts creation and social networks (Skype, for instance).
26. Does the territoriality of limitations and exceptions, in your experience, constitute a problem?
Yes. Please explain why and specify which exceptions you are referring to