European Commission copyright consultation
Is there a need for more clarity as regards the scope of what needs to be authorised (or not) in digital transmissions?

The European Commission is considering modernizing European copyright laws. To get feedback and input on this modernization, the Commission has published a series of questions, and is looking to interested stakeholders (like our community) to answer them. This is a vital opportunity to participate in a dialogue that could have a major impact on copyright laws and the future of the free knowledge movement. More background is available from the European Commission.

We would like to prepare a draft response here, as a collaborative experiment. If we wish to respond, it will need to be finalized before the end of January 2014 (see the proposed timeline).

Welcome to the discussion! Please help by answering the questions below.

Return to the table of contents.

Is there a need for more clarity as regards the scope of what needs to be authorised (or not) in digital transmissions?

The definition of the rights involved in digital transmissions

The EU framework for the protection of copyright and related rights in the digital environment is largely established by Directive 2001/29/EC^[1] on the harmonisation of certain aspects of copyright and related rights in the information society. Other EU directives in this field that are relevant in the online environment are those relating to the protection of software^[2] and databases^[3].

Directive 2001/29/EC harmonises the rights of authors and neighbouring rightholders^[4] which are essential for the transmission of digital copies of works (e.g. an e-book) and other protected subject matter (e.g. a record in a MP3 format) over the internet or similar digital networks.

The most relevant rights for digital transmissions are the reproduction right, i.e. the right to authorise or prohibit the making of copies^[5], (notably relevant at the start of the transmission – e.g. the uploading of a digital copy of a work to a server in view of making it available – and at the users’ end – e.g. when a user downloads a digital copy of a work) and the communication to the public/making available right, i.e. the rights to authorise or prohibit the dissemination of the works in digital networks^[6]. These rights are intrinsically linked in digital transmissions and both need to be cleared.

The act of “making available”

Directive 2001/29/EC specifies neither what is covered by the making available right (e.g. the upload, the accessibility by the public, the actual reception by the public) nor where the act of “making available” takes place. This does not raise questions if the act is limited to a single territory. Questions arise however when the transmission covers several territories and rights need to be cleared (does the act of "making available" happen in the country of the upload only? in each of the countries where the content is potentially accessible? in each of the countries where the content is effectively accessed?). The most recent case law of the Court of Justice of the European Union (CJEU) suggests that a relevant criterion is the “targeting” of a certain Member State's public^[7]. According to this approach the copyright-relevant act (which has to be licensed) occurs at least in those countries which are “targeted” by the online service provider. A service provider “targets” a group of customers residing in a specific country when it directs its activity to that group, e.g. via advertisement, promotions, a language or a currency specifically targeted at that group.

Question 8

8) Is the scope of the “making available” right in cross-border situations – i.e. when content is disseminated across borders – sufficiently clear?

Yes

Your name here

No

No opinion

Your name here

Comments

Instructions: If yes, please explain how this could be clarified and what type of clarification would be required (e.g. as in "targeting" approach explained above, as in "country of origin" approach^[8])

Precedents in various EU countries have disagreed on whether the source (provider) country or the destination (consumer) country have jurisdiction over the act of "making available". The cited CJEU cases also show that it has hitherto not attempted to make the scope of "making available" unambiguous. Der yck C. 03:22, 10 January 2014 (UTC)[reply]
In global online communities and in particular in the Wikimedia community, there is no really such a thing as the country of origin of the publication: it is published on the Internet, so by definition in all (connected) countries. The language is not really a marker to attach the work to a country, since many languages are not bounded to a country (hopefully) and there are diasporas, and some works are non-linguistic like the photographs. Some Ersätze could be found like the country a file is uploaded from, the country of residence of the uploader, the nationality of the uploader, the country where the owner of the servers is incorporated, etc. but I find the legislations could have another option for the country of publication as "worldwide" or "multi-country" particularly for the case of Internet. I didn’t thought more about this option, but I find it would be worth to think about. ~ Seb35 [^_^] 21:23, 27 January 2014 (UTC)[reply]

Proposed Foundation answer

Based on the comments above (unanimous no votes), I propose the following answer for the official Foundation response, based primarily on the comment from Seb35: —LVilla (WMF) (talk) 08:18, 28 January 2014 (UTC)[reply]

No.

In global online communities and in particular in the Wikimedia community, there is not really a country of origin, or target of the publication: it is published on the Internet, so by definition in all (connected) countries, and with the purpose of educating the entire world. Any proposed solution should consider and provide clarity for content which is by nature collaborative and multi-national.

Question 9

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^[9])?

Yes

Your name here

No

Your name here

No opinion

Your name here

Comments

Instructions: If yes, please explain how such potential effects could be addressed

...

Proposed Foundation answer

I propose the following answer for the official Foundation response. This answer is somewhat more "from scratch" than other answers, but I think it is in keeping with our values and goals, while driving home the message that international volunteer projects are a reality now: —LVilla (WMF) (talk) 08:20, 28 January 2014 (UTC)[reply]

Yes.

Because of the international way in which open collaborative projects like Wikimedia are created and made available, by authors and reusers from every Member State, it is difficult to predict how changes to the "making available" right would affect the rights of Wikimedia authors and the ability of the Foundation to distribute their content to citizens of the Member States. However, some impact seems likely, particularly if it exposed authors or service providers to liability in previously unanticipated locations.

Two rights involved in a single act of exploitation

Each act of transmission in digital networks entails (in the current state of technology and law) several reproductions. This means that there are two rights that apply to digital transmissions: the reproduction right and the making available right. This may complicate the licensing of works for online use notably when the two rights are held by different persons/entities.

Question 10

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

Your name here

No

Your name here

No opinion

Your name here

Comments

Instructions: If yes, please explain what type of measures would be needed in order to address such problems (e.g. facilitation of joint licences when the rights are in different hands, legislation to achieve the "bundling of rights")

...

Proposed Foundation answer

I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 08:20, 28 January 2014 (UTC)[reply]

No opinion.

Linking and browsing

Hyperlinks are references to data that lead a user from one location in the Internet to another. They are indispensable for the functioning of the Internet as a network. Several cases are pending before the CJEU^[10] in which the question has been raised whether the provision of a clickable link constitutes an act of communication to the public/making available to the public subject to the authorisation of the rightholder.

A user browsing the internet (e.g. viewing a web-page) regularly creates temporary copies of works and other subject-matter protected under copyright on the screen and in the 'cache' memory of his computer. A question has been referred to the CJEU^[11] as to whether such copies are always covered by the mandatory exception for temporary acts of reproduction provided for in Article 5(1) of Directive 2001/29/EC.

Question 11

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?

Yes

Your name here

No

Dominikmatus (talk) 16:10, 22 January 2014 (UTC)[reply]
--Aktron (talk) 11:02, 6 January 2014 (UTC)[reply]
Tom Morris
Der yck C.
odder (talk) 11:07, 11 January 2014 (UTC)[reply]
NaBUru38 (talk) 14:15, 11 January 2014 (UTC)[reply]
Seb35 [^_^] 21:31, 27 January 2014 (UTC)[reply]

No opinion

Your name here

Comments

In recent years we could have seen the transformation of the Internet from web 1.0 (admins create content that users consume) to web 2.0 (all users create and consume the content). All projects, that sport this principle, Wikipedia included, moved the Internet forward. This has created so many educational, cultural but also business opportunities. We benefit from these today. Right now Wikipedia is the 6th most visited internet page, available in more than 250 languages. It is the biggest internet encyclopedia in the world. Having the content created by volunteers mean that it is pretty much impossible to track what link is put where. Besides - a link itself can hardly be subject of copyright, since it does not bring any author related information. If such tracking would be implemented, our current freedom on the internet, that did trigger creativity not foreseeable by anyone in the past, might be crippled. Everyone will turn from content creator to a secret police patrolling internet links. No contribution to our society or progress will be triggered. We might see decline of all successful projects. Few might benefit from such changes, but great majority in Europe will not. Aktron (talk) 11:02, 6 January 2014 (UTC)[reply]

Such an idea would bring copyright further into disrepute than it already is. It is also unenforceable and an enormous limitation on software developers to build usable software. —Tom Morris (talk) 13:33, 9 January 2014 (UTC)[reply]

The offline equivalent of this suggestion would be "the publicising of the venue of an exhibition should be subject to the authorisation to the exhibitor". When rephrased in technology-neutral terms, this suggestion is blatantly absurd. Der yck C. 03:16, 10 January 2014 (UTC)[reply]
Providing the location of a resource should never be considered reproduction or making available. That shold be limited to the resource providers, that is the uploading user and server provider. --NaBUru38 (talk) 14:15, 11 January 2014 (UTC)[reply]
+1 to Deryck Chan. A person who create a link doesn’t "make available" the work, since this one is already published, and the person who "made available" the work is the person who originally published the work on the Internet. Possibly if the person uses a part of the work as title of the link, I guess this could perhaps be subject to the copyright laws, but this has nothing to deal with the link itself. ~ Seb35 [^_^] 22:06, 27 January 2014 (UTC)[reply]

Proposed Foundation answer

Based on the comments above (unanimous "no"), including particularly User:Deryck Chan's comment, and the Free Knowledge Advocacy Group EU suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 08:22, 28 January 2014 (UTC)[reply]

No.

The World Wide Web is characterized by the web of links between sites, and to subject these links to copyright authorization would destroy the fundamental structure of the internet. Rephrasing the proposal in technology-neutral terms makes it more obvious that the proposal is absurd: the offline equivalent of this suggestion would be "publicizing the venue of an exhibition could be subject to the authorization of the exhibitor". It is particularly absurd in the case of Wikipedia, which depends on linking to other sites to provide information by citing other websites.

Question 12

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?

Yes

Your name here

No

Tom Morris - this would bring copyright further into disrepute with technically minded people by making the basic operation of the World Wide Web subject to the whims of laweyers and rightsholders who usually don't know anything about how the Web works.
Dominikmatus (talk) 16:10, 22 January 2014 (UTC)[reply]
Your name here

No opinion

Der yck C.

Comments

Instructions: If yes, please explain whether you consider this to be the case in general, or under specific circumstances, and why. If no, please explain whether you consider this to be the case in general, or under specific circumstances, and why (e.g. because it is or should be covered by a copyright exception).

This question is misleading. Because a website can deny access to any viewer by technical means, the temporary reproduction of web content when browsing the internet cannot be done without the (implicit) authorisation of the website's owner. Therefore, it is whimsical to suggest an additional authorisation for the end-user to store copyright content temporarily in order to read it. Der yck C. 03:31, 10 January 2014 (UTC)[reply]
Viewing a web resource should not be limited by copyright holders. When a work is available as a web resource, users should have no restrictions to accessing it. What copyright holders may limit is the reproduction or making available of the work, which corresponds to the uploading user and server provider. --NaBUru38 (talk) 14:18, 11 January 2014 (UTC)[reply]
Just to point out that part of the Web are private, and if works are behind authorization barriers these one should not be considered public. I acknowledge some parts of the Web are semi-public like Facebook where some contents require an authorization for access but registration and hence access could be open to everyone -- and this leads to difficult questions to what cann be considered public, I know there were cases in France for Facebook. ~ Seb35 [^_^] 22:48, 27 January 2014 (UTC)[reply]
If a work has been delivered to the user/viewer, there must not be technical limitations to the use, and in particular the caching mechanism has no other finality as technical improvements on the user experience, on the network load, etc. ~ Seb35 [^_^] 22:35, 27 January 2014 (UTC)[reply]

Proposed Foundation answer

Based on the comments above, particularly the comments by Seb35 and User:Deryck Chan, and the Free Knowledge Advocacy Group EU suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 08:29, 28 January 2014 (UTC)[reply]

No.

No, for two reasons. First, websites can use technical and other legal means to deny access. Because of this, every viewing of a webpage already has authorization - either explicit or implicit - from the website's owner. No further permission is necessary.

Second, in digital technologies every use of content inevitably produces a copy. If a webpage has been legally delivered to a user's computer, there must not be legal limitations that prohibit or limit technical improvements to how the computing device or software handles the content.

We therefore propose to formally limit the definition of reproduction in copyright to exclude technologically sensible (temporary) copies, including but not limited to caching and buffering.

Download to own digital content

Digital content is increasingly being bought via digital transmission (e.g. download to own). Questions arise as to the possibility for users to dispose of the files they buy in this manner (e.g. by selling them or by giving them as a gift). The principle of EU exhaustion of the distribution right applies in the case of the distribution of physical copies (e.g. when a tangible article such as a CD or a book, etc. is sold, the right holder cannot prevent the further distribution of that tangible article)^[12]. The issue that arises here is whether this principle can also be applied in the case of an act of transmission equivalent in its effect to distribution (i.e. where the buyer acquires the property of the copy)^[13]. This raises difficult questions, notably relating to the practical application of such an approach (how to avoid re-sellers keeping and using a copy of a work after they have “re-sold” it – this is often referred to as the “forward and delete” question) as well as to the economic implications of the creation of a second-hand market of copies of perfect quality that never deteriorate (in contrast to the second-hand market for physical goods).

Question 13

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

Your name here

No

Dominikmatus (talk) 16:10, 22 January 2014 (UTC)[reply]
Your name here

No opinion

Your name here

Comments

Instructions: If yes, please explain by giving examples.

…

Proposed Foundation answer

Because this is aimed at individuals, and we do not purchase or resell such files, I recommend using the following answer for the official Foundation response: —LVilla (WMF) (talk) 08:30, 28 January 2014 (UTC)[reply]

No opinion.

Question 14

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.

Response

[Open question]

Reselling of used digital files is nonsense. Digital files don't get worn or damaged by using them, and copying files can be done bit by bit without restrictions. Forbidding that by copyright laws is forbidding technology. --NaBUru38 (talk) 14:21, 11 January 2014 (UTC)[reply]
...

Proposed Foundation answer

Because this is aimed at individuals, and we do not purchase or resell such files, I recommend using the following answer for the official Foundation response: —LVilla (WMF) (talk) 08:30, 28 January 2014 (UTC)[reply]

No opinion.

Next set of questions >>

References

↑ ^{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 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs.}
↑ ^{Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases.}
↑ ^{Film and record producers, performers and broadcasters are holders of so-called “neighbouring rights” in, respectively, their films, records, performances and broadcast. Authors’ content protected by copyright is referred to as a “work” or “works”, while content protected by neighbouring rights is referred to as “other subject matter”.}
↑ ^{The right to “authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part” (see Art. 2 of Directive 2001/29/EC) although temporary acts of reproduction of a transient or incidental nature are, under certain conditions, excluded (see art. 5(1) of Directive 2001/29/EC).}
↑ ^{The right to authorise or prohibit any communication to the public by wire or wireless means and to authorise or prohibit the making available to the public “on demand” (see Art. 3 of Directive 2001/29/EC).}
↑ ^{See in particular Case C-173/11 (Football Dataco vs Sportradar) and Case C-5/11 (Donner) for copyright and related rights, and Case C-324/09 (L’Oréal vs eBay) for trademarks. With regard to jurisdiction see also joined Cases C-585/08 and C-144/09 (Pammer and Hotel Alpenhof) and pending CaseC-441/13 (Pez Hejduk); see however, adopting a different approach, Case C-170/12 (Pinckney vs KDG Mediatech).}
↑ ^{The objective of implementing a “country of origin” approach is to localise the copyright relevant act that must be licenced in a single Member State (the "country of origin", which could be for example the Member State in which the content is uploaded or where the service provider is established), regardless of in how many Member States the work can be accessed or received. Such an approach has already been introduced at EU level with regard to broadcasting by satellite (see Directive 93/83/EEC on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission).}
↑ ^{Injunctive relief is a temporary or permanent remedy allowing the right holder to stop or prevent an infringement of his/her right.}
↑ ^{Cases C-466/12 (Svensson), C-348/13 (Bestwater International) and C-279/13 (C More entertainment).}
↑ ^{Case C-360/13 (Public Relations Consultants Association Ltd). See also http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2011_0202_PressSummary.pdf.}
↑ ^{See also recital 28 of Directive 2001/29/EC.}
↑ ^{In Case C-128/11 (Oracle vs. UsedSoft) the CJEU ruled that an author cannot oppose the resale of a second-hand licence that allows downloading his computer program from his website and using it for an unlimited period of time. The exclusive right of distribution of a copy of a computer program covered by such a licence is exhausted on its first sale. While it is thus admitted that the distribution right may be subject to exhaustion in case of computer programs offered for download with the right holder’s consent, the Court was careful to emphasise that it reached this decision based on the Computer Programs Directive. It was stressed that this exhaustion rule constituted a lex specialis in relation to the Information Society Directive (UsedSoft, par. 51, 56).}

[ftn16-1] {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.}

[ftn17-2] {Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs.}

[ftn18-3] {Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases.}

[ftn19-4] {Film and record producers, performers and broadcasters are holders of so-called “neighbouring rights” in, respectively, their films, records, performances and broadcast. Authors’ content protected by copyright is referred to as a “work” or “works”, while content protected by neighbouring rights is referred to as “other subject matter”.}

[ftn20-5] {The right to “authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part” (see Art. 2 of Directive 2001/29/EC) although temporary acts of reproduction of a transient or incidental nature are, under certain conditions, excluded (see art. 5(1) of Directive 2001/29/EC).}

[ftn21-6] {The right to authorise or prohibit any communication to the public by wire or wireless means and to authorise or prohibit the making available to the public “on demand” (see Art. 3 of Directive 2001/29/EC).}

[ftn22-7] {See in particular Case C-173/11 (Football Dataco vs Sportradar) and Case C-5/11 (Donner) for copyright and related rights, and Case C-324/09 (L’Oréal vs eBay) for trademarks. With regard to jurisdiction see also joined Cases C-585/08 and C-144/09 (Pammer and Hotel Alpenhof) and pending CaseC-441/13 (Pez Hejduk); see however, adopting a different approach, Case C-170/12 (Pinckney vs KDG Mediatech).}

[ftn23-8] {The objective of implementing a “country of origin” approach is to localise the copyright relevant act that must be licenced in a single Member State (the "country of origin", which could be for example the Member State in which the content is uploaded or where the service provider is established), regardless of in how many Member States the work can be accessed or received. Such an approach has already been introduced at EU level with regard to broadcasting by satellite (see Directive 93/83/EEC on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission).}

[ftn24-9] {Injunctive relief is a temporary or permanent remedy allowing the right holder to stop or prevent an infringement of his/her right.}

[ftn25-10] {Cases C-466/12 (Svensson), C-348/13 (Bestwater International) and C-279/13 (C More entertainment).}

[ftn26-11] {Case C-360/13 (Public Relations Consultants Association Ltd). See also http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2011_0202_PressSummary.pdf.}

[ftn27-12] {See also recital 28 of Directive 2001/29/EC.}

[ftn28-13] {In Case C-128/11 (Oracle vs. UsedSoft) the CJEU ruled that an author cannot oppose the resale of a second-hand licence that allows downloading his computer program from his website and using it for an unlimited period of time. The exclusive right of distribution of a copy of a computer program covered by such a licence is exhausted on its first sale. While it is thus admitted that the distribution right may be subject to exhaustion in case of computer programs offered for download with the right holder’s consent, the Court was careful to emphasise that it reached this decision based on the Computer Programs Directive. It was stressed that this exhaustion rule constituted a lex specialis in relation to the Information Society Directive (UsedSoft, par. 51, 56).}

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