Draft submission to the
EU copyright rules consultation below. Please excuse the formatting - I've been trying to use the odf form supplied by the Commission.
Update: this draft has now been submitted.
It's long and probably tedious in places and superficial in others but I'd still appreciate comments on any errors or omissions, from any suitably interested in copyright folks with an opportunity to scan it.
Public Consultation
on
the review of the EU copyright rules
Please identify
yourself:
Name:
Ray Corrigan
Senior Lecturer in Maths Computing & Technology,
The Open University, UK
(This submission is in a personal capacity and not on
behalf of my employer) …………………………………………………………………………………………………..
Type of respondent
(Please underline the appropriate):
End
user/consumer (e.g. internet user, reader, subscriber to
music or audiovisual service, researcher, student)
for the purposes of this questionnaire normally referred
to in questions as "end users/consumers"
Author
Other
(Please explain):
Academic
author and educator with interest in copyright
Rights and the
functioning of the Single Market
Why is it not
possible to access many online content services from anywhere in
Europe?
A. [The territorial scope of the rights involved in digital
transmissions and the segmentation of the market through licensing
agreements]
[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?
YES
Yes. Receiving Irish public broadcasts e.g. from RTE
radio and television in the UK. I've also had problems getting Polish
books in Ireland and the UK. The lack of access to content in their
native language is a particular issue for the large number of
migrants all across the EU.
[In particular if you are a service provider:]
Have you faced problems when seeking to provide online services
across borders in the EU?
I'm not a service provider but my academic blog at
http://b2fxxx.blogspot.co.uk/
is often censored or mis-categorised by software filters; sometimes
making it awkward for people not just around the EU but also in the
UK to access. Notably the Orange mobile network has in the past
blocked my access to my own blog as have a number of other corporate
software filters. For several years Yahoo! search tagged my blog with
a “warning: dangerous downloads” label.
[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.
[Open question]
N/A
If you have identified problems in the answers to
any of the questions above – what would be the best way to tackle
them?
[Open question]
There are three main parties with a stake in the
copyright pie:
Agents
(and I use the term in the economic sense here to cover all the
commercial entities involved in the copyright arena e.g. music,
film, software, media companies, publishers etc.)
And society as a whole (also
known as the general public or consumers)
Each of the three sets of
stakeholders overlap to some degree and will have within them a
massive range of different kinds of creators, businesses or consumers
– all of which will have their own demands of the copyright system
– but for simplicity sake I am just going to look at the three
groups.
Whatever commercial, regulatory and
technical systems are put in place to evolve copyright in a way that
increases
the cross-border availability of content services, they must
take account of the diverse interests of all three sets of generic
stakeholders. Balancing the needs of these diverse groups is a
complex calculus, too often neglected. The historical result has been
badly designed regulations, falsely promoted as protecting the
interests of creators but in reality tailored to the desires of
existing large commercial players in the content industries. The
periodically repeated extension of copyright term is the classic
example in the EU but particularly in the US.
Copyright
is too often shaped as a tool for an elite group of powerful economic
agents (industry players) to extract all the available commercial
value from creative works, even when that means uses previously
deemed legal are handed over to the control of these agents. Yet the
function of copyright is not purely to provide economic rent for
commercial intermediaries but also to provide an economic incentive
to creators and to contribute to the welfare of society as a whole.
The
problem is that there is very little empirical evidence available on
copyright and intellectual property policy-making more generally to
inform such regulation. And the studies that are available are often
contradictory. So before we make any more rules written or shaped by
the best funded industry lobbyists we must start gathering a sound
empirical evidence base. The kind of work being done by the UK
Research Council's CREATe initiative in partnership with the UK
Intellectual Property Office, amongst others.
Too often copyright regulations are shaped by what dominant incumbent
industries want rather than the balanced interests of creators,
economic agents and society as a whole, based on empirical evidence.
You can argue about the relative importance of the three different
sets of stakeholders but the needs of all three must be accounted
for.
[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
[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
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
See my answer to question 4 above and note the needs of
the 3 sets of stakeholders – creators, economic agents and society
as a whole.
As to what these measures should be, we are woefully
short of the sound empirical evidence we need to figure this out and
need vastly more investment in gathering, researching and analysing
such evidence.
I would suggest that given the dominant position of
large oligopolies controlling
intellectual
property rights based on territorial licensing of popular sports, for
example, that the current regulatory regime, coupled with a purely
market led approach, is unsatisfactory. It leads to a few winners –
the richest sports stars and/teams and economic agents like BSkyB –
and other stakeholders – sports people, other creators, other
economic agents who would like to provide wider access to sports, and
consumers, the public and society as a whole – losing out
relatively speaking.
Consider
the breaking down of territorial barriers to facilitate increased
cross border availability of cross border content services or
expanding copyright exceptions more generally. Consider
the case of the sale of a new work, whether music, film, software or
other
creative work. The economic damage to creators or agents that own the
copyright from an increase in copyright exceptions or easier
cross-border availability must come from:
a)
a reduction in revenue of the specific work, either now or in the
future
and,
if this is positive,
b)
a ‘dynamic effect’ whereby the lost sales now affect the ability
to generate new work in the future and thereby revenues in the
future.
It
is clear that only if a) occurs that b) can have validity. Also,
criterion a) is solely concerned with how current and future revenue
is influenced by copyright exceptions.
Some commentators
define an additional type of ‘economic damage’ that
relates
to previous sales of copyrighted goods . The argument here is that
improvements in technology (e.g. the iPod) allow consumers to gain
more value from their existing purchases of music, films, etc.
However, labelling this as ‘economic damage’ is a shift away from
normal
economic analysis and the normal functioning of markets. Whilst
retrospective compensation is commonplace in the copyright system,
for example with retrospective term extensions, the market system
does not generally provide for retrospective compensation based on
how technology has enabled new uses.
Some
commentators also note that increasing copyright exceptions may not
have only detrimental effects. For example, it is sometimes suggested
that format-shifting may allow others to hear, see or play the work.
This may, in turn, generate more revenue either now or in the future.
Similarly, the wider exposure that format-shifting, parody or
user-generated content creates may also increase sales. Increased
sales can come from either primary sales of the work, or so-called
secondary sales (such as tickets for live concerns, merchandise,
etc). And in the case of cross-border access the societal value eg of
migrants having access to copyrighted content from their home
territories is incalculable.
In
general, when a consumer buys a CD, or any product, we assume they
include in their valuation an estimate of the entire benefits derived
from the CD. This includes listening to the CD now, next week and
next year, as well as listening to it with friends and family,
format-shifting (if legal) and benefits from new technologies in the
future.
At
any point in time, any specific product will receive a wide range of
‘valuations’, as consumers are heterogeneous. Economists
summarise these valuations into a demand curve, as for a specific
product. The market price is determined by a variety of factors,
including the
competition
in the market for the specific product (e.g. the price of similar
music or software).
A
key result of the standard analysis of demand is that the value of
copyright exceptions and extra consumer territorial access rights
will be embedded into a demand curve. Hence, there is an argument
that agents and creators automatically extract value from copyright
exceptions and cross border rights. Similarly, if the extent of
exceptions or cross border rights is changed then the demand curve
will automatically shift to reflect these. Prices go up if copyright
exceptions are increased (as consumers are assumed to gain, hence
their valuations increase), and down if exceptions are reduced.
B. Is there a need
for more clarity as regards the scope of what needs to be authorised
(or not) in digital transmissions?
1. The act of “making
available”
Is the scope of the “making available” right
in cross-border situations – i.e. when content is disseminated
across borders – sufficiently clear?
Yes and no but mostly
no. Copyright laws are ridiculously complicated and inaccessible to
ordinary mortals. The right may be clear to copyright experts but not
to ordinary people.
[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)?
I don't know. I don't have the empirical evidence to
answer such a question.
2.
Two rights involved in a single act of exploitation
[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?
NO
I don't think this should a major issue though some
large copyright holders have been working on ways to extract extra
economic rent from the issue since the internet hit public
consciousness in the mid 1990s (and probably before).
There is indeed the complication associated with the two rights being
held by different agents – a hint of the unnecessary complexity of
copyright law. However, the default assumption that any potential new
revenues flowing from technological or other innovations should
automatically flow to the copyright holder is flawed.
Suppose someone buys a sofa and subsequently a large
flat screen TV that enhances the experience of sitting on the sofa.
The furniture seller is not entitled to extra revenue because their
customer, as a result of a separate purchase is now deriving extra
benefit from their sofa.
The unstated assumption that there is necessarily
economic harm to copyright holders when new technology enables new
revenue flows is false.
3. Linking and browsing
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 – Categorically not. Rights
holders should have no right to veto links. Such
a restriction on linking would break the internet for ordinary users,
for businesses, governments, NGOs, educational establishments; and
would be largely unworkable in practice.
As
the consultation notes, a number hyperlinks cases have been referred
to the CJEU. As a hyperlink is just a pointer to where content can be
found, like a reference in an index, “the provision on a website of
clickable links to works freely available on another website does not
constitute an ‘act of communication to the public’”, as noted
in the recent Svensson case (C-466 / 12).
Rights
holders would continue to have access to redress through the courts
in relation to the large scale systematic provision of links designed
to lead to infringing content. There were a number of UK cases in
this area in 2013.
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 – Categorically not. This temporary
reproduction is a function of the technology of browsing the world
wide web. The
applicability of the temporary copying exception to internet browsing
is being considered by the CJEU but it would seem sensible given the
nature of the technology that temporary reproduction during browsing
should fall within the exception.
It
is, however, critical to be clear about this. As recently as the
1990s large entertainment industries attempted, in the US, to
leverage this function of the technology and copyright's exclusive
right to reproduce copies of protected works, to increase their
control of the market and revenues for copyrighted works. They
argued that any part of a copyright work being copied even
temporarily in a computer's random access memory was an unauthorised
reproduction. The US copyright law (from the 1970s) allowed no
exceptions for internet related processes or uses. So industry
lobbyists claimed they should be entitled to charge for all these
extra digital copies and part copies that were a side effect of the
way digital technology worked. And they succeeded in getting the
Digital Millenium Copyright Act passed in 1998, largely based on this
pay-per-view/pay-per-copy/pay-per-use view of the world. The EU
followed on with our very own version of the DMCA and it's anti
circumvention provisions in the copyright and related rights
directive of 2001, 3 years later.
Yet think about this from a different perspective. If
every time an electronic version of a copyrighted work appears in
temporary cache or random access memory of a computer it constitutes
the making of an chargeable copy, we are providing copyright holders
with substantial control of even the consumption of their works; not
just the copying, reproduction and other traditional rights
associated with copyright.
It would be anathema to the public interest to provide
such additional rights to copyright holder when there are vastly less
socially damaging options available such as putting their works
behind a pay wall. Such regulations would additionally be unworkable
in practice and bring the law into disrepute.
4. Download to own digital content
[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
It's not just a question of resale but transfer of
legally acquired content between my own devices and/or from old
failing equipment to newer replacements.
[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.
[Open question]
Economics suggests secondary market sales can be
accounted for when setting initial sales price. It's more complicated
with digital content transfers due to the “forward and delete”
point mentioned by the consultation. I'm sure the Research Council
UK's CREATe initiative and numerous other IP centres round the EU
would be happy to be commissioned to do some research on this. The
UK's Intellectual Property Office has a team of economists who could
also probably offer some advice.
C. Registration of
works and other subject matter – is it a good idea?
Would the creation of a registration system at EU
level help in the identification and licensing of works and other
subject matter?
YES
On balance a voluntary registration system could be
beneficial for the long term identification of copyright ownership
history and facilitation of licensing. See the UK Hargreaves Review
recommendations on a copyright hub. A large reduction in the term of
copyright would ease the potential need for such a registration
system however.
What would be the possible advantages of such a
system?
[Open question]
Clarity of copyright control and easier facilitation of
licensing.
What would be the possible disadvantages of such
a system?
[Open question]
Costly and potentially cumbersome; plus open to control
by the more powerful economic actors.
What incentives for registration by rightholders
could be envisaged?
[Open question]
Entirely dependent on the specific systems, processes
and infrastructure used to facilitate registration.
D. How to improve the
use and interoperability of identifiers
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?
[Open question]
I'm not sure the EU has a role here other than to
encourage the adoption of open standards and interoperability. It's
also likely the EU can influence this more through the purchasing
processes of the EU's institutions – economic influence – rather
than through regulatory approaches.
E. Term of protection
– is it appropriate?
Are the current terms of copyright protection
still appropriate in the digital environment?
NO
No. The current terms are too long even if we didn't
live in a digital world. Patent terms are generally 20 years. How
have we arrived at a situation where copyright terms are the life of
the author plus 50 years (Berne) or 70 years (EU, US and others) or
100 years (Mexico) or 70 years after first publication of music (EU)?
In the case of long copyright terms our three sets of
stakeholders -
Creators
Economic agents
Society
mostly lose. The only winners are the few wealthy
creators and economic agents with the small number of copyrighted
works with long commercially successful lives; which
would otherwise fall into the public domain many decades
earlier.
Only about 4% of copyright works
older than 20 years are commercially available, so 96% remain locked
up for the rest of the creator's life plus 70 years even though no
one is selling them. The public therefore lose out, as do other
creators and economic agents who would like to build on or
commercially exploit those works (and the 4%).
Systemically long copyright terms are a bad deal for
most stakeholders. In recent years, the EU, as the consultation
notes, increased the term of copyright in sound recordings from 50 to
70 years. If we do some basic discounted cash flow calculations, we
discover the real present value factor of the increase in economic
incentive of a term extension of 20 years is surprisingly small. The
present value (therefore specific differential economic incentive at
the time of recording) of the extra 20 years on top of the original
50 years would be:
1/(1+r)51
+ 1/(1+r)52 + … + 1/(1+r)70
- Where r is the
equivalent of a standard rate of inflation (expressed as a decimal)
for the 20 years. In fact with the help of some neat mathematical
manipulation we can derive a formula for the present value of a
constant income (C) for a particular copyright term:
Present
value = C(1-e-rt)/r
Where
e is Euler’s number, a universal
mathematical constant (and the base number for natural logarithms)
r
is the percentage annual discount rate expressed
as a decimal,
and
t is the copyright term in years.
So for a term t
of 50 years and a discount rate of 10%, the present value of an
income stream C of £1000 per annum would be £9933,
approximately. That sounds like a decent income. Now compare it with
the present value of an equivalent yearly income if the copyright
term were 70 years (just change the t in the calculation from
50 to 70), which turns out to be £9991.
The extra present
value of the 20 year term extension was just £58 or 0.6%.
In fact if the copyright
term were to last forever, the present value of the same annual
income stream would be £10,000. (Present value of an infinite income
flow at a constant discount rate =C/r, where C
is the annual income and r the discount rate)
A 70 year term of
copyright is worth 99.9%, in present value terms, of the value of a
copyright that lasted forever. In economic terms current terms of
copyright are effectively infinite.
A
copyright term that lasts the life of the creator plus 70 years makes
no economic sense whatsoever, whether we live in a digital age or
not.
We can repeat these calculations for
different discount rates and income streams and demonstrate that the
differential in real present value terms or the economic incentive
provided by long
copyright terms provides no effective incentive to creators.
As
Thomas Babbington Macaulay said in 1841 in the House of Commons
debate on copyright:
I will take an
example. Dr Johnson died fifty-six years ago. If the law were what my
honourable and learned friend wishes to make it, somebody would now
have the monopoly of Dr Johnson's works. Who that somebody would be
it is impossible to say; but we may venture to guess. I guess, then,
that it would have been some bookseller, who was the assign of
another bookseller, who was the grandson of a third bookseller, who
had bought the copyright from Black Frank, the doctor's servant and
residuary legatee, in 1785 or 1786. Now, would the knowledge that
this copyright would exist in 1841 have been a source of
gratification to Johnson? Would it have stimulated his exertions?
Would it have once drawn him out of his bed before noon? Would it
have once cheered him under a fit of the spleen? Would it have
induced him to give us one more allegory, one more life of a poet,
one more imitation of Juvenal? I firmly believe not. I firmly believe
that a hundred years ago, when he was writing our debates for the
Gentleman's Magazine, he would very much rather have had twopence to
buy a plate of shin of beef at a cook's shop underground. Considered
as a reward to him, the difference between a twenty years' and sixty
years' term of posthumous copyright would have been nothing or next
to nothing. But is the difference nothing to us? I can buy Rasselas
for sixpence; I might have had to give five shillings for it. I can
buy the Dictionary, the entire genuine Dictionary, for two guineas,
perhaps for less; I might have had to give five or six guineas for
it. Do I grudge this to a man like Dr Johnson? Not at all. Show me
that the prospect of this boon roused him to any vigorous effort, or
sustained his spirits under depressing circumstances, and I am quite
willing to pay the price of such an object, heavy as that price is.
But what I do complain of is that my circumstances are to be worse,
and Johnson's none the better; that I am to give five pounds for what
to him was not worth a farthing.
So clearly we need to be extremely
sceptical of arguments declaring that the only way intellectual
property owners (creators and/or agents) are going to derive an
appropriate income from their creative assets is by retaining or
extending already excessively long copyright terms.
Copyright terms are already
demonstrably excessive and I say that as a published author, as much
as an academic, reader or plain member of the public. I would further
suggest the need for detailed empirical research to provide a sound
evidence to inform policy makers (worldwide, not just in the EU) in
setting a more appropriate copyright term. This may lead as now to
terms being tailored to the particular type of copyrighted work but
in all cases the simple economics suggest these terms would be
significantly shorter.
III. Limitations and
exceptions in the Single Market
Are there problems arising from the fact that
most limitations and exceptions provided in the EU copyright
directives are optional for the Member States?
YES
Hugenholtz, P. B. and Senftleben, Martin, Fair Use in
Europe: In Search of Flexibilities (November 14, 2011).
http://ssrn.com/abstract=1959554
explain this better than I can:
There
appear to be good reasons and ample opportunity to (re)introduce a
measure of flexibility in the national copyright systems of Europe.
The need for more openness in copyright law is almost self-evident in
this information society of highly dynamic and unpredictable change.
A historic perspective also suggests that copyright law, particularly
in the civil law jurisdictions of Europe, has lost much of its
flexibility in the course of the past century. By contrast, with the
accelerating pace of technological change in the 21st Century, and in
view of the complex process of law making in the EU, the need for
flexible copyright norms both at the EU and the national level is now
greater than ever.
Against this background, the authors argue
that the EU copyright acquis leaves considerably more room for
flexibilities than its closed list of permitted limitations and
exceptions suggests. In the first place, the enumerated provisions
are in many cases categorically worded prototypes rather than
precisely circumscribed exceptions, thus leaving the Member States
broad margins of implementation. In the second place, the EU acquis
leaves ample unregulated space with regard to the right of adaptation
that has so far remained largely unharmonized. A Member State
desiring to take full advantage of all policy space available under
the Information Society Directive, might achieve this by literally
transposing the Directive’s entire catalogue of exception
prototypes into national law. In combination with the three-step
test, this would effectively lead to a semi-open norm almost as
flexible as the fair use rule of the United States. Less ambitious
Member States seeking to enhance flexibility while keeping its
existing structure of limitations and exceptions largely intact, can
explore the policy space left by distinct exception prototypes. In
addition, the unharmonized status of the adaptation right would leave
Member States free to provide for limitations and exceptions
permitting, for example, fair transformative uses in the context of
producing and disseminating user-generated content.
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?
YES
23. Should any new limitations and
exceptions be added to or removed from the existing catalogue?
Please explain by referring to specific cases.
[Open question]
From my work with Mark Rogers and Joshua Tomalin in 2010
(Rogers, Mark;
Corrigan, Ray and Tomalin, Joshua (2010). The economic impact of
consumer copyright
exceptions:
a literature review. Consumer Focus, London, UK.)
http://oro.open.ac.uk/25604/5/The_economics_of_consumer_copyright_exceptions_final.pdf:
Investigating
potential economic damage to rights-holders requires an
analysis
of how consumer copyright exception could affect the demand for the
original
creative work. The processes via which consumer copyright
exceptions
influence the demand curve for original creative work can be
complicated.
This said, a standard analysis of the demand for creative works
must
assume that consumers incorporate the benefit of copyright exceptions
into
their demand. A consumer’s decision to purchase is based on the
benefits
of
the product, including – in the case of creative work – the value
of any
copyright
exception. In this sense, it can be argued that a creator
automatically
extracts value from copyright exceptions, since these directly
influence
the demand for the original creative work.
In
our review, the two most commonly cited ‘economic’ studies into
the effects
of
Private Copying Remuneration (PCR) systems – Econlaw (2007) and
Nathan
Associates (2006) – do not provide any useful evidence that
consumer
copyright exceptions cause economic damage to rights-holders, or
that
a copyright levy is justified on these grounds.
• The
Econlaw study incorrectly equates economic damage with
consumer
value and does not contain a formal discussion of the
demand
for copyrighted works.
• The
Nathan Associates study does not make a necessary
distinction
between ‘damage to consumers and producers’ and
‘damage
to society as a whole’. It likely overstates the economic
damage
caused by PCR. It also uses estimates for demand
elasticities
that do not come from formal economic analysis.
The
economic evidence that format-shifting, parody and user-generated
content
cause any kind of economic damage to rights-holders simply does not
exist.
Arguments that support tighter copyright law, or support PCR systems,
tend
to confuse economic damage with consumer value. Any future analysis
on
this issue needs to investigate the conditions under which the
proposed
consumer
copyright exceptions would have any impact on demand for
creative
work.
The
complications associated with the application of limitations and
exceptions could be greatly eased by the universal and drastic
reduction in copyright terms. In this innovative age, the need for
creators and inventors to have to consult a lawyer to get a
definitive opinion on whether their work is permitted by existing
rights holders or limitations and exceptions built into a very
complex law, is somewhat anomalous.
That
said I wonder whether there should be a wider recognition perhaps
formal sanctioning of non commercial sharing of copies of copyrighted
works. By non commercial I'm referring to that proportion the
widespread sharing that currently occurs that would not happen if
those participating were obliged to pay-per-copy. So e.g. teens or
those on low incomes who might not have access to the economic means
to pay for such material; or sharers getting access to works no
longer commercially available; or those sharing materials released
under open or creative commons licences. So in terms of the three
generic stakeholders it would be economically neutral for creators
and agents but nevertheless have a positive effect on the welfare of
society.
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?
That's a complicated question that requires robust
empirical study and again the question would be greatly eased by a
significant reduction in copyright terms.
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.
[Open question]
There's no “best approach” but there could be a
better informed approach if the EU, member state governments and
industry were to commit to funding a great deal more empirical
research.
26. Does the territoriality of limitations and
exceptions, in your experience, constitute a problem?
YES
27. In the event that limitations and exceptions
established at national level were to have cross-border effect, how
should the question of “fair compensation” be addressed, when
such compensation is part of the exception? (e.g. who pays whom,
where?)
[Open question]
This is another question requiring empirical research.
A. Access to content in libraries and archives
1. Preservation and
archiving
28. (a) [In particular if you are an
institutional user:] Have you experienced specific
problems when trying to use an exception to preserve and archive
specific works or other subject matter in your collection?
(b) [In particular if you are a right
holder:] Have you experienced problems with the use by
libraries, educational establishments, museum or archives of the
preservation exception?
YES
29. If there are problems, how would they best be
solved?
[Open question]
Libraries and archives have long been under threat in
from UK government funding cuts and in the face of the more powerful
economic agents' constant drive to increase their industries' control
of copyrighted content. Carefully-defined
preservation exceptions have clear benefits, enabling libraries to
maintain and facilitate access to our cultural heritage for the
enjoyment of present and future generations. The cultural and
societal welfare associated with this work is incalculable.
30. If your view is that a legislative solution
is needed, what would be its main elements? Which activities of the
beneficiary institutions should be covered and under which
conditions?
[Open question]
Library experts are better placed to answer this
question but it is another area where sound empirical research is
required. Libraries, museums and archives serve the public good and
require exceptional protections legislative, political and economic.
31. If your view is that a different solution is
needed, what would it be?
[Open question]
Libraries and archives are exceptionally important and
require special protections even more so in our digital age.
In The Public Domain: Enclosing the Commons of the
Mind, James Boyle eloquently and passionately argues that our
culture, science and democracy depend on a delicate balance between
ideas that are controlled by intellectual property and those that are
freely available in the public domain. He tells a terrific series of
engaging stories about, for example, why the building blocks of
synthetic biology, business methods, pairs of musical notes are now
owned, why blues, jazz or soul music would probably be illegal if it
were invented today, why most of 20th century culture is legally
unavailable to us, and why the World Wide Web would, most likely,
have been killed at birth if lawyers, commerce and policy-makers
could have reacted quickly enough.
This all adds up to what
Boyle calls a 'second enclosure movement' – except that on this
occasion we’re not facing an enclosure of the grassy commons of
olde Englande but rather an enclosure of the 'commons of the mind'
and a serious erosion of the public domain, a state of affairs future
generations will rightly condemn us for allowing to happen; at the
very point that we have the technical and economic capacity to
facilitate universal access to recorded human knowledge, a digital
library of Alexandria.
The book, destined to become the
standard text in the area, also serves as the Silent Spring of
the information society – a clarion call to understand and protect
the public domain through scholarship, communication, articulation
and recognition of shared interests and values that allow that notion
- the public domain - to come into public consciousness and a
diverse ecology of activism to support all this. A kind of
"environmentalism for information" and the public domain.
Libraries, museums and archives are at the coalface of
this environmentalism for information and the public domain and
require, in addition to legal protections, public substantive or at
the very least sufficient public funding to enable them to engage
effectively in such work.
2. Off-premises
access to library collections
32. (a) [In particular if you are an
institutional user:] Have you experienced specific
problems when trying to negotiate agreements with rights holders
that enable you to provide remote access, including across borders,
to your collections (or parts thereof) for purposes of research and
private study?
(b) [In particular if you are an end
user/consumer:] Have you experienced specific problems when
trying to consult, including across borders, works and other
subject-matter held in the collections of institutions such as
universities and national libraries when you are not on the premises
of the institutions in question?
(c) [In particular if you are a
right holder:] Have you negotiated agreements with
institutional users that enable those institutions to provide remote
access, including across borders, to the works or other
subject-matter in their collections, for purposes of research and
private study?
[Open question]
I have often experienced problems when trying to consult
works when not on the premises or in the territory of the institution
in question.
33. If there are problems, how would they best be
solved?
[Open question]
Through an open universally deployed high speed neutral
technical infrastructure and a permissive intellectual property
regime for libraries and archives.
34. If your view is that a legislative solution
is needed, what would be its main elements? Which activities of the
beneficiary institutions should be covered and under which
conditions?
[Open question]
Special copyright exceptions for non-commercial use of
library and archive materials.
35. If your view is that a different solution is
needed, what would it be?
[Open question]
Deployment of investment to enable construction of
technical infrastructure to facilitate digital archiving and
connecting all libraries and archives to the backbone of a neutral
internet.
3. E – lending
36. (a) [In particular if you are a
library:] Have you experienced specific problems when
trying to negotiate agreements to enable the electronic lending
(e-lending), including across borders, of books or other materials
held in your collection?
(b) [In particular if you are an end
user/consumer:] Have you experienced specific problems when
trying to borrow books or other materials electronically (e-lending),
including across borders, from institutions such as public libraries?
(c) [In particular if you are a
right holder:] Have you negotiated agreements with
libraries to enable them to lend books or other materials
electronically, including across borders?
YES
37. If there are problems, how would they best be
solved?
[Open question]
In the first instance revoke the legal instruments which
make the circumvention of and communication of the weaknesses in
digital rights management (DRM) technologies unlawful.
DRM largely doesn't fulfil it's industry-stated intended
purpose of protecting rights-holders rights but does undermine the
security of the whole population of end users. Cory Doctorow
explained this nicely in a recent article in the Guardian:
“DRM is designed on the presumption that users don't want it, and
if they could turn it off, they would. You only need DRM to stop
users from doing things they're trying to do and want to do. If the
thing the DRM restricts is something no one wants to do anyway, you
don't need the DRM. You don't need a lock on a door that no one ever
wants to open.
DRM assumes that the
computer's owner is its adversary. For DRM to work, there has to be
no obvious way to remove, interrupt or fool it. For DRM to work, it
has to reside in a computer whose operating system is designed to
obfuscate some of its files and processes: to deliberately hoodwink
the computer's owner about what the computer is doing. If you ask
your computer to list all the running programs, it has to hide the
DRM program from you. If you ask it to show you the files, it has to
hide the DRM files from you. Anything less and you, as the computer's
owner, would kill the program and delete its associated files at the
first sign of trouble.
An increase in the security of the companies you buy your media from
means a decrease in your own security. When your computer is designed
to treat you as an untrusted party, you are at serious risk: anyone
who can put malicious software on your computer has only to take
advantage of your computer's intentional capacity to disguise its
operation from you in order to make it much harder for you to know
when and how you've been compromised.”
It is also important in relation to e-lending to
encourage the development of neutral open standards and
interoperability.
38. [In particular if you are an
institutional user:] What differences do you see in the
management of physical and online collections, including providing
access to your subscribers? What problems have you encountered?
[Open question]
I have no answer to this question.
39. [In particular if you are a right
holder:] What difference do you see between
libraries’ traditional activities such as on-premises consultation
or public lending and activities such as off-premises (online, at a
distance) consultation and e-lending? What problems have you
encountered?
[Open question]
I have no answer to this question.
4. Mass digitisation
40. [In particular if you are an
institutional user, engaging or wanting to
engage in mass digitisation projects, a right holder, a collective
management organisation:] Would it be necessary in your
country to enact legislation to ensure that the results of the 2011
MoU (i.e. the agreements concluded between libraries and
collecting societies) have a cross-border effect so that out of
commerce works can be accessed across the EU?
YES
I believe so. I understand the UK Intellectual Property
Office is currently
also working on updating the UK's library and archive preservation
exceptions to permit preservation copying of all types of media.
41. Would it be necessary to develop mechanisms,
beyond those already agreed for other types of content (e.g. for
audio- or audio-visual collections, broadcasters’ archives)?
YES
Most likely.
B. Teaching
42. (a) [In particular if you are an
end user/consumer or an institutional user:] Have you
experienced specific problems when trying to use works or other
subject-matter for illustration for teaching, including across
borders?
(b) [In particular if you are a right
holder:] Have you experienced specific problems resulting
from the way in which works or other subject-matter are used for
illustration for teaching, including across borders?
YES
43. If there are problems, how would they best be
solved?
[Open question]
Reducing the exorbitant cost of textbooks and licences
to access copyrighted materials.
44. What mechanisms exist in the market place to
facilitate the use of content for illustration for teaching
purposes? How successful are they?
[Open question]
There are a variety of market mechanisms but they are
failing as evident from the exorbitant cost of textbooks and licences
to access copyrighted materials.
45. If your view is that a legislative solution
is needed, what would be its main elements? Which activities of the
beneficiary institutions should be covered and under what
conditions?
[Open question]
Universal legislation to incentivise free and 'green'
open access (green open access, under which authors self-archive
their published papers in open-access repositories) publishing of all
publicly funded research and teaching.
46. If your view is that a different solution is
needed, what would it be?
[Open question]
Legislation plus investment in infrastructure of 'green'
open access publishing. Careful thought will need to be given to the
kinds of sustainable funding/business models needed to support this.
But it is possible to imagine a cross-border licencing regime whereby
member state governments or private/public partnerships funding open
access repositories could charge a license for access to users in
other jurisdictions. The evolution of sustainable commerce and
government funding models to facilitate access for teaching will be a
non trivial exercise.
C. Research
47. (a) [In particular if you are an
end user/consumer or an institutional user:] Have you
experienced specific problems when trying to use works or other
subject matter in the context of research projects/activities,
including across borders?
(b) [In particular if you are a right
holder:] Have you experienced specific problems resulting
from the way in which works or other subject-matter are used in the
context of research projects/activities, including across borders?
YES
48. If there are problems, how would they best be
solved?
[Open question]
The issues are similar as for teaching access.
49. What mechanisms exist in the Member States to
facilitate the use of content for research purposes? How successful
are they?
[Open question]
I'm not going to offer an answer to this question.
D. Disabilities
50. (a) [In particular if you are a
person with a disability or an organisation representing persons
with disabilities:] Have you experienced problems with
accessibility to content, including across borders, arising from
Member States’ implementation of this exception?
(b) [In particular if you are an
organisation providing services for persons with disabilities:] Have
you experienced problems when distributing/communicating works
published in special formats across the EU?
(c) [In particular if you are a right
holder:] Have you experienced specific problems resulting
from the application of limitations or exceptions allowing for the
distribution/communication of works published in special formats,
including across borders?
YES
51. If there are problems, what could be done to
improve accessibility?
[Open question]
WIPO's agreement on the Marrakesh Treaty last year to
facilitate access to published works by visually impaired persons and
persons with print disabilities was a minor miracle few who had been
fighting for it for so long ever believed would come to pass.
It remains to be seen what impact it will have in
practice on visually impaired persons' and persons with print
disabilities' actual access to published works. The treaty is
supposed to address the “book famine” suffered by blind, visually
disabled and those with print disabilities by requiring its
contracting parties to adopt national law provisions that permit the
reproduction, distribution and making available of published works in
accessible formats through limitations and exceptions to the rights
of copyright rights-holders.
52. What mechanisms exist in the market place to
facilitate accessibility to content? How successful are they?
[Open question]
The marker place has been failing dismally given the now
widespread agreement on the existence of the book famine.
E. Text and data mining
53. (a) [In particular if you are an
end user/consumer or an institutional user:] Have you
experienced obstacles, linked to copyright, when trying to use text
or data mining methods, including across borders?
(b) [In particular if you are a service
provider:] Have you experienced obstacles, linked to
copyright, when providing services based on text or data mining
methods, including across borders?
(c) [In particular if you are a right holder:]
Have you experienced specific problems resulting from the use of text
and data mining in relation to copyright protected content, including
across borders?
YES
Text and data mining is not my area of academic
expertise.
54. If there are problems, how would they best be
solved?
[Open question]
Text and data mining for scientific and technological
development purposes offer significant potential benefits. Yet it
often requires the negotiation of complex contracts or licences
between researchers and rights-holders. Some of the transaction costs
involved could be eased through the development of more standardised
and open and in some instances compulsory licensing models.
55. If your view is that a legislative solution
is needed, what would be its main elements? Which activities should
be covered and under what conditions?
[Open question]
I don't have access to sufficient empirical evidence to
suggest a legislative solution but again it comes back to the complex
calculus of the relative interests of the three generic sets of
stakeholders; in this instance
I understand the UK intends
to introduce a specific copyright exception to encourage the use of
text and data mining techniques in research, within the scope of
Article 5(3)(a) of the Infosoc Directive. There may be a case to
expand the scope of such an exception to teaching, private and
non-commercial uses.
56. If your view is that a different solution is
needed, what would it be?
[Open question]
There is something to be said for the Google book
project approach here, except perhaps in this instance it should be a
publicly funded version. Prominent academic institutions would make
their collections available for scanning into interoperable text &
data mining friendly standard open formats.
As per teaching and research contexts, work is required
on working out sustainable funding and business models to support
this kind of infrastructure on an ongoing basis.
57. Are there other issues, unrelated to
copyright, that constitute barriers to the use of text or data
mining methods?
[Open question]
Text and data mining experts are better placed to
provide an informed response on this question.
F. User-generated content
58. (a) [In particular if you are an
end user/consumer:] Have you experienced problems when
trying to use pre-existing works or other subject matter to
disseminate new content on the Internet, including across borders?
(b) [In particular if you are a service
provider:] Have you experienced problems when users
publish/disseminate new content based on the pre-existing works or
other subject-matter through your service, including across borders?
(c) [In particular if you are a right
holder:] Have you experienced problems resulting from the
way the users are using pre-existing works or other subject-matter to
disseminate new content on the Internet, including across borders?
YES
59. (a) [In particular if you are an
end user/consumer or a right holder:] Have you experienced
problems when trying to ensure that the work you have created (on
the basis of pre-existing works) is properly identified for online
use? Are proprietary systems sufficient in this context?
(b) [In particular if you are a service
provider:] Do you provide possibilities for users that are
publishing/disseminating the works they have created (on the basis of
pre-existing works) through your service to properly identify these
works for online use?
I'm not sure I fully understand what question 58 is
getting at.
60. (a) [In particular if you are an
end user/consumer or a right holder):] Have you
experienced problems when trying to be remunerated for the use of
the work you have created (on the basis of pre-existing works)?
YES
61. If there are problems, how would they best be
solved?
[Open question]
I don't have an answer to this question
62. If your view is that a legislative solution
is needed, what would be its main elements? Which activities should
be covered and under what conditions?
[Open question]
I don't have an answer to this question.
63. If your view is that a different solution is
needed, what would it be?
[Open question]
I don't have an answer to this question.
IV. Private copying and
reprography
64. In your view, is there a need to clarify at
the EU level the scope and application of the private copying and
reprography exceptions
in the digital environment?
YES
65. Should digital copies made by end users for
private purposes in the context of a service that has been
licensed by rightholders, and where the harm to the rightholder is
minimal, be subject to private copying levies?
NO
The
two most commonly cited economic studies into the effects of
private copying remuneration (PCR) systems – Econlaw (2007)
and Nathan Associates (2006)
– do not provide any useful evidence that consumer copyright
exceptions cause economic damage to rights-holders, or that a
copyright levy is justified on these grounds.
• The
Econlaw study incorrectly equates economic damage with consumer value
and does not contain a formal discussion of the demand for
copyrighted works.
• The
Nathan Associates study does not make a necessary distinction between
‘damage to consumers and producers’ and ‘damage to society as a
whole’. It likely overstates the economic damage caused by PCR. It
also uses estimates for demand elasticities that do not come from
formal economic analysis.
The
empirical economic evidence that format-shifting, private and
user-generated content cause any kind of economic damage to
rights-holders does not appear to exist. Arguments that support
tighter copyright law, or support PCR systems, tend to confuse
economic damage with consumer value.
66. How would changes in levies with respect to
the application to online services (e.g. services based on cloud
computing allowing, for instance, users to have copies on different
devices) impact the development and functioning of new business
models on the one hand and rightholders’ revenue on the other?
[Open question]
Any
future analysis on this issue needs to investigate the conditions
under which the proposed consumer copyright exceptions would have any
impact on demand for
creative
work.
67. Would you see an added value in making levies
visible on the invoices for products subject to levies?
YES
As stated above there is no economic case to be made for
levies. However, if there is an insistence on having them for other
reasons e.g. in the interests of certain economic agents, then
transparency on the proportion of the product price due to the levies
would be appropriate.
68. Have you experienced a situation where a
cross-border transaction resulted in undue levy payments, or
duplicate payments of the same levy, or other obstacles to the free
movement of goods or services?
I don't have an answer to that question.
69. What percentage of products subject to a levy
is sold to persons other than natural persons for purposes clearly
unrelated to private copying? Do any of those transactions result in
undue payments? Please explain in detail the example you provide
(type of products, type of transaction, stakeholders, etc.).
[Open question]
I don't have an answer to that question.
70. Where such undue payments arise, what
percentage of trade do they affect? To what extent could a priori
exemptions and/or ex post reimbursement schemes existing in some
Member States help to remedy the situation?
[Open question]
I don't have the empirical evidence to answer that
question.
71. If you have identified specific problems with
the current functioning of the levy system, how would these problems
best be solved?
[Open question]
Scrap levies since there is no economic case to be made
for them.
……………………………………………………………………………………………….
V. Fair remuneration of
authors and performers
72. [In particular if you are an
author/performer:] What is the best mechanism (or
combination of mechanisms) to ensure that you receive an adequate
remuneration for the exploitation of your works and performances?
[Open question]
There is no one best mechanism. There are a variety of
revenue flow models which can work either through direct sales or
through intermediaries e.g. economic agents such as publishers and
collecting societies dealing on fair and reasonable terms with
authors/performers. Easy, widespread (and sometimes open and/or
creative commons) access to authors/performers' work at a reasonable
cost is the key.
73. Is there a need to act at the EU level (for
instance to prohibit certain clauses in contracts)?
YES
I'd recommend reading Diane Rappaport, The Recording
Artist as an Indentured Servant -
Steve Albini, The
Problem with Music -
and
Courtney Love, Courtney
Love Does the Math
-
on
the exploitative nature of music industry contracting with performing
artists. The performers need stronger legal protections.
74. If you consider that the current rules are
not effective, what would you suggest to address the shortcomings
you identify?
[Open question]
The application of a generic unfair contract terms
principle to recording industries' contracts with performers would
be a start. The prosecution of entertainment industries for fraud in
cases of the manipulation of accounts to avoid paying fair recompense
to performers and creators would be another approach. Currently
performers and creators lose out in these cases or are obliged to
pursue expensive civil legal proceedings e.g. for copyright
infringement, declaratory relief, breach of contract etc. to fight
for a fair share of the revenues arising from the sales of their
creative works and derivatives.
There is quite a lot of scope for EU action to address
iniquities in relation to the remuneration of performers and authors.
But I would agree with the UK IPO, that
consideration of this issue should be based on a clear understanding
of the nature of the problem and its scale and the extent to which
the problem is unique to copyright contracts. In other words there is
further need for robust empirical research on the scale and scope of
the issue.
75. Should the civil enforcement system in the EU
be rendered more efficient for infringements of copyright committed
with a commercial purpose?
It entirely depends on what is meant by rendering the
system “more efficient.” Too often this kind of argument is used
as an excuse to trample on fundamental rights. So it may be
appropriate to remind those involved in collating this consultation
of the opinion of the Court of Justice of the European Union on this
point in
Case C-275/06
Productores
de Música de España (Promusicae) v Telefónica de España SAU
(2008).
The
dispute was between Spanish music rights holders'
association Promusicae and Spain's top telecommunications operator,
Telefonica.
Telefonica argued that, under a
national law based on EU rules, it had to disclose the name of an
Internet subscriber only for criminal actions, not civil ones.
"Community law does not require
the member states, in order to ensure the
effective protection of copyright, to lay down an obligation to
disclose personal data in the context of civil proceedings," the
court said in a statement."
The court said:
"There
are several community directives whose purpose is that the member
states should ensure, especially in the information society,
effective protection of industrial property, in particular
copyright.
Such protection cannot, however, affect the
requirements of the protection of personal data. The directives on
the protection of personal data also allow the member states to
provide for exceptions to the obligation to guarantee the
confidentiality of traffic data"
In
other words, the ECJ concluded that privacy trumps copyright
protection and the judgement was expected since the ECJ's Advocate
General, Juliane Kokott, in advising
the court in August of last year, basically said the same thing.
In other
words, the ECJ concluded that privacy trumps copyright protection and
the judgement was expected since the ECJ's Advocate General, Juliane
Kokott, in advising
the court in August of last year, basically said the same thing.
The Court
press release relating to the judgement stated:
29
January 2008
Judgment
of the Court of Justice in Case C-275/06
Productores
de Música de España (Promusicae) v Telefónica de España SAU
THE
COURT RULES ON THE PROTECTION OF INTELLECTUAL PROPERTY RIGHTS IN THE
INFORMATION SOCIETY
Community
law does not require the Member States, in order to ensure the
effective protection of copyright, to lay down an obligation to
disclose personal data in the context of civil proceedings
There
are several Community directives 1 whose purpose is that the Member
States should ensure, especially in the information society,
effective protection of industrial property, in particular copyright.
Such protection cannot, however, affect the requirements of the
protection of personal data. The directives on the protection of
personal data 2 also allow the Member States to provide for
exceptions to the obligation to guarantee the confidentiality of
traffic data.
Promusicae
is a Spanish non-profit-making organisation of producers and
publishers of musical and audiovisual recordings. It applied to the
Spanish courts for an order that Telefónica should disclose the
identities and physical addresses of certain persons whom it provided
with internet access services, whose IP address and date and time of
connection were known. According to Promusicae, those persons were
using the KaZaA file exchange program (peer-to-peer or P2P) and
providing access in shared files of personal computers to phonograms
in which members of Promusicae held the exploitation rights. It
therefore sought disclosure of the above information in order to be
able to bring civil proceedings against the persons concerned.
Telefónica
argued that, under Spanish law,3 the communication of the data sought
by Promusicae was authorised only in a criminal investigation or for
the purpose of safeguarding public security and national defence.
The
Spanish court asks the Court of Justice of the European Communities
whether Community law requires the Member States to lay down, in
order to ensure effective protection of copyright, an obligation to
communicate personal data in the context of civil proceedings.
The
Court of Justice notes that the exceptions permitted by the
directives on the protection of personal data include the measures
necessary for the protection of the rights and freedoms of others. As
the directive on privacy and electronic communications does not
specify the rights and freedoms concerned by that exception, it must
be interpreted as expressing the Community legislature’s intention
not to exclude from its scope the protection of the right to property
or situations in which authors seek to obtain that protection in
civil proceedings. It does not therefore preclude the possibility for
the Member States of laying down an obligation to disclose personal
data in the context of civil proceedings. However, it does not compel
the Member States to lay down such an obligation.
As to
the directives on intellectual property, the Court of Justice finds
that they too do not require the Member States to lay down, in order
to ensure effective protection of copyright, an obligation to
communicate personal data in the context of civil proceedings.
That
being so, the Court points out that the present reference for a
preliminary ruling raises the question of the need to reconcile the
requirements of the protection of different fundamental rights,
namely the right to respect for private life on the one hand and the
rights to protection of property and to an effective remedy on the
other.
The
Court concludes that the Member States must, when transposing the
directives on intellectual property and the protection of personal
data, rely on an interpretation of those directives which allows a
fair balance to be struck between the various fundamental rights
protected by the Community legal order. Further, when implementing
the measures transposing those directives, the authorities and courts
of the Member States must not only interpret their national law in a
manner consistent with the directives but also make sure that they do
not rely on an interpretation of them which would be in conflict with
those fundamental rights or with the other general principles of
Community law, such as the principle of proportionality.
The full judgment is available
at
the ECJ website. It is a technical judgment looking at the
details of a collection of EU directives and how they interact; and
how to achieve a balance between the right to protect personal data
and the right to protect property but the key parts of the decision
in my opinion are paragraphs 61 to 70:
"Fundamental rights
61 The national court refers in its order for reference
to Articles 17 and 47 of the Charter, the first of which concerns the
protection of the right to property, including intellectual property,
and the second of which concerns the right to an effective remedy. By
so doing, that court must be regarded as seeking to know whether an
interpretation of those directives to the effect that the Member
States are not obliged to lay down, in order to ensure the effective
protection of copyright, an obligation to communicate personal data
in the context of civil proceedings leads to an infringement of the
fundamental right to property and the fundamental right to effective
judicial protection.
62 It should be recalled that the fundamental right to
property, which includes intellectual property rights such as
copyright (see, to that effect, Case C 479/04 Laserdisken
[2006] ECR I 8089, paragraph 65), and the fundamental right to
effective judicial protection constitute general principles of
Community law (see respectively, to that effect, Joined Cases
C 154/04 and C 155/04 Alliance for Natural Health and
Others [2005] ECR I 6451, paragraph 126 and the case-law
cited, and Case C 432/05 Unibet [2007] ECR I 2271,
paragraph 37 and the case-law cited).
63 However, the situation in respect of which the
national court puts that question involves, in addition to those two
rights, a further fundamental right, namely the right that guarantees
protection of personal data and hence of private life.
64 According to recital 2 in the preamble to Directive
2002/58, the directive seeks to respect the fundamental rights and
observes the principles recognised in particular by the Charter. In
particular, the directive seeks to ensure full respect for the rights
set out in Articles 7 and 8 of that Charter. Article 7 substantially
reproduces Article 8 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms signed at Rome on 4 November
1950, which guarantees the right to respect for private life, and
Article 8 of the Charter expressly proclaims the right to protection
of personal data.
65 The present reference for a preliminary ruling thus
raises the question of the need to reconcile the requirements of the
protection of different fundamental rights, namely the right to
respect for private life on the one hand and the rights to protection
of property and to an effective remedy on the other.
66 The mechanisms allowing those different rights and
interests to be balanced are contained, first, in Directive 2002/58
itself, in that it provides for rules which determine in what
circumstances and to what extent the processing of personal data is
lawful and what safeguards must be provided for, and in the three
directives mentioned by the national court, which reserve the cases
in which the measures adopted to protect the rights they regulate
affect the protection of personal data. Second, they result from the
adoption by the Member States of national provisions transposing
those directives and their application by the national authorities
(see, to that effect, with reference to Directive 95/46, Lindqvist,
paragraph 82).
67 As to those directives, their provisions are
relatively general, since they have to be applied to a large number
of different situations which may arise in any of the Member States.
They therefore logically include rules which leave the Member States
with the necessary discretion to define transposition measures which
may be adapted to the various situations possible (see, to that
effect, Lindqvist, paragraph 84).
68 That being so, the Member States must, when
transposing the directives mentioned above, take care to rely on an
interpretation of the directives which allows a fair balance to be
struck between the various fundamental rights protected by the
Community legal order. Further, when implementing the measures
transposing those directives, the authorities and courts of the
Member States must not only interpret their national law in a manner
consistent with those directives but also make sure that they do not
rely on an interpretation of them which would be in conflict with
those fundamental rights or with the other general principles of
Community law, such as the principle of proportionality (see, to that
effect, Lindqvist, paragraph 87, and Case C 305/05 Ordre
des barreaux francophones et germanophone and Others [2007] ECR
I 0000, paragraph 28).
69 Moreover, it should be recalled here that the
Community legislature expressly required, in accordance with Article
15(1) of Directive 2002/58, that the measures referred to in that
paragraph be adopted by the Member States in compliance with the
general principles of Community law, including those mentioned in
Article 6(1) and (2) EU.
70 In the light of all the foregoing, the answer to the
national court’s question must be that Directives 2000/31, 2001/29,
2004/48 and 2002/58 do not require the Member States to lay down, in
a situation such as that in the main proceedings, an obligation to
communicate personal data in order to ensure effective protection of
copyright in the context of civil proceedings. However, Community law
requires that, when transposing those directives, the Member States
take care to rely on an interpretation of them which allows a fair
balance to be struck between the various fundamental rights protected
by the Community legal order. Further, when implementing the measures
transposing those directives, the authorities and courts of the
Member States must not only interpret their national law in a manner
consistent with those directives but also make sure that they do not
rely on an interpretation of them which would be in conflict with
those fundamental rights or with the other general principles of
Community law, such as the principle of proportionality."
And they then conclude:
On
those grounds, the Court (Grand Chamber) hereby rules:
Directive
2000/31/EC of the European Parliament and of the Council of 8 June
2000 on certain legal aspects of information society services, in
particular electronic commerce, in the Internal Market (‘Directive
on electronic commerce’), Directive 2001/29/EC of the European
Parliament and of the Council of 22 May 2001 on the harmonisation of
certain aspects of copyright and related rights in the information
society, Directive 2004/48/EC of the European Parliament and of the
Council of 29 April 2004 on the enforcement of intellectual property
rights, and Directive 2002/58/EC of the European Parliament and of
the Council of 12 July 2002 concerning the processing of personal
data and the protection of privacy in the electronic communications
sector (Directive on privacy and electronic communications) do not
require the Member States to lay down, in a situation such as that in
the main proceedings, an obligation to communicate personal data in
order to ensure effective protection of copyright in the context of
civil proceedings. However, Community law requires that, when
transposing those directives, the Member States take care to rely on
an interpretation of them which allows a fair balance to be struck
between the various fundamental rights protected by the Community
legal order. Further, when implementing the measures transposing
those directives, the authorities and courts of the Member States
must not only interpret their national law in a manner consistent
with those directives but also make sure that they do not rely on an
interpretation of them which would be in conflict with those
fundamental rights or with the other general principles of Community
law, such as the principle of proportionality.
76. In particular, is the current legal framework
clear enough to allow for sufficient involvement of intermediaries
(such as Internet service providers, advertising brokers, payment
service providers, domain name registrars, etc.) in inhibiting
online copyright infringements with a commercial purpose? If not,
what measures would be useful to foster the cooperation of
intermediaries?
[Open question]
It should be no part of the function of intermediaries
such as ISPs or domain name registrars to act as copyright police.
The fact that many jurisdictions approach to the widespread copyright
infringement on peer-to-peer services on the internet is to introduce
three-strikes regimes (e.g. France) implemented through ISP policing
is to be lamented.
If intermediaries
are to be liable for policing potentially infringing content on the
Internet, that has a significant commercial cost and consequent
downstream consumer and societal welfare cost. E.g. is it truly
proportionate for someone to lose access to the internet for
infringing copyright? It is unlikely these costs are outweighed by
the benefit to rights-holders derived from such ISP policing but it
could be put to an empirical test through robust empirical research.
The internet is
effectively controlled by private sector intermediaries. How,
therefore, do you ensure the private sector not only respects but
also upholds the rights of users? These private companies are not
equipped to do so. They cannot be expected to make subtle human
rights judgements. They are in business to make money so neither are
they motivated to protect the rights of users. If commercial or legal
pressure says they should block access to certain websites or
throttle a customer's internet service for copyright reasons then
that is the route that will be taken, regardless of the individual
rights that may be infringed. In many online contexts
punishment is arbitrary, lacks transparency, lacks due process, with
limited access to remedies or appeals. Arguably this is the case with
the 3 strikes process in France or the 6 strikes process in the US.
That is not an environment in which human rights will be respected
and so intermediaries like the telecoms companies and ISPs need
support in protecting fundamental rights if they are to be obliged to
be copyright police.
77. Does the current civil enforcement framework
ensure that the right balance is achieved between the right to have
one’s copyright respected and other rights such as the protection
of private life and protection of personal data?
NO
VII.
A single EU Copyright Title
78. Should the EU pursue the establishment of a
single EU Copyright Title, as a means of establishing a
consistent framework for rights and exceptions to copyright across
the EU, as well as a single framework for enforcement?
Probably not. Copyright regulations are incredibly
complicated. It would be impossible to predict the consequences of
getting from the current chaotic multi-jurisdictional approach to a
single EU copyright title for
creators
economic agents
society
As an old friend of mine would say, if I was going there
I wouldn't start from here. I would not dismiss the idea entirely,
given the potential to simplify copyright regulations generally.
However, there are a vast number of complex and contentious issues
relating to copyright that it may prove necessary to address before
attempting such a move.
79. Should this be the next step in the
development of copyright in the EU? Does the current level of
difference among the Member State legislation mean that this is a
longer term project?
[Open question]
Almost certainly a longer term project if the case can
be made.
80. Are there any other important matters related
to the EU legal framework for copyright? Please explain and indicate
how such matters should be addressed.
[Open question]
I don't have anything further to add at the moment.
Given the shortness of time I have not provided a comprehensive list
of references for all of my answers above but would be happy to do so
at a later date if required.
Thanks for the opportunity to contribute to this
consultation and for your attention if you have managed to get
through all or even just some my comments.
