European Commission copyright consultation/Respect for rights

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European Commission copyright consultation Respect for rights

A single EU Copyright Title

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.

Respect for rights

Directive 2004/48/EE provides for a harmonised framework for the civil enforcement of intellectual property rights, including copyright and related rights. The Commission has consulted broadly on this text. Concerns have been raised as to whether some of its provisions are still fit to ensure a proper respect for copyright in the digital age. On the one hand, the current measures seem to be insufficient to deal with the new challenges brought by the dissemination of digital content on the internet; on the other hand, there are concerns about the current balance between enforcement of copyright and the protection of fundamental rights, in particular the right for a private life and data protection. While it cannot be contested that enforcement measures should always be available in case of infringement of copyright, measures could be proposed to strengthen respect for copyright when the infringed content is used for a commercial purpose. One means to do this could be to clarify the role of intermediaries in the IP infrastructure. At the same time, there could be clarification of the safeguards for respect of private life and data protection for private users.

Question 75

75) Should the civil enforcement system in the EU be rendered more efficient for infringements of copyright committed with a commercial purpose?

Yes

• Your name here

No

• Your name here

No opinion

• Your name here

Comments

Instructions: If yes or no, please explain.

• The "commercial purpose" is hard to define and such clauses cause endless controversies. --Nemo bis
• Rule of law, due process and human rights are more important than enforcement efficiency. --NaBUru38 (talk) 15:10, 11 January 2014 (UTC)
• ...

Proposed Foundation answer

Based on the comments above and the Free Knowledge Group EU suggestions, I propose the following answer for the official Foundation response: -LVilla (WMF) (talk) 01:03, 7 February 2014 (UTC)

No.

There are several problems with this question. First, "commercial purpose" is difficult to define and assess, especially when technology has made it possible for the cumulative actions of individuals to have commercial impact even when each individual involved had no commercial purpose or motive.

Second, for reasons that are not explained, this question focuses only on civil enforcement, and not on criminal enforcement. We would urge the Commission to explain this distinction further before taking any steps to change the current system.

Third, efficiency is not the paramount criteria for a system of justice - rule of law, due process, and basic rights like communication and freedom of speech are more important criteria. Indeed, if anything, most recent proposals for reform of the civil enforcement system (like the ISP-based system of enforcement in France) tend too far towards efficiency and too far away from justice.

Finally, much research has shown that the enforcement system is only one reason why individuals comply with laws. Other factors are as or more important - including, in particular, respect for other individuals and judgment of the fairness of the laws being enforced. As a result, the most effective way to improve compliance with the law would not be to improve enforcement, but rather to take citizen and amateur creator concerns seriously when addressing the other issues identified throughout the entire consultation.

Question 76

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?

Responses

[Open question]

• ...

Proposed Foundation answer

Based on the Creativity4Copyright suggestions, I propose the following answer for the official Foundation response: -LVilla (WMF) (talk) 01:03, 7 February 2014 (UTC)

The Wikimedia Foundation is one of the largest and most popular intermediaries in the world, and we can say with confidence that the current system is not clear enough - because it requires too much involvement by intermediaries. Creating more "clarity" by putting more pressure on intermediaries would force many intermediaries to stop offering services to the EU altogether, or in less extreme cases, merely force them to be overcautious and chill the free speech rights of EU citizens.

It is important to understand that the key rights of speech and communication between citizens are now carried out primarily on the internet. Therefore many of the calls for increased "respect for rights" of copyright creators are inevitably calls for monitoring all communication - which disrespects not just privacy rights, but also speech and political rights as well. For example, many intermediaries, including us, YouTube, and others, have received legal threats where the party threatening us claimed to be making a copyright claim, but were actually trying to silence political speech. And the proposed "solutions" would typically require us to monitor every discussion made by our users - an intolerable position for us, and we'd hope for the Commission as well. Increased "clarity" for intermediaries would only increase this problem. The correct solution is for the parties who believe their rights are infringed to seek redress against the parties who infringed, not the intermediaries.

Question 77

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?

Yes

• Your name here

No

• NaBUru38 (talk) 15:13, 11 January 2014 (UTC)
• Your name here

No opinion

• Your name here

Comments

Instructions: If yes or no, please explain.

• The current enforcement of copyright in member states is completely ineffective and harmful. Most efforts are geared towards protecting market incumbents, acting in near-monopoly, from the consumers, even when the prohibited uses produce no demonstrated harm to the copyright holders or have been linked to positive gains for the copyright holders. In contrast, minor authors of self-published cultural works and authors of massively cooperative works such as Wikipedia (who are in the millions) have no practical means to defend themselves from the constant disrespect of their copyrights perpetrated by minor and major market players (such as newspapers), even when a public license is available that makes it easy (and gratis) to respect the author's wishes and rights (moral or otherwise), such as the Creative Commons - Attribution - Share alike license. --Nemo bis
• In several European countries, executive authorities have been allowed to take action on alleged copyright infringement, without due process. Also, limitations such as fair use haven't been considered by authorities, thus violating human rights. --NaBUru38 (talk) 15:13, 11 January 2014 (UTC)
• ...

Proposed Foundation answer

Based on the comments above and the Creativity4Copyright suggestions, I propose the following answer for the official Foundation response: -LVilla (WMF) (talk) 01:03, 7 February 2014 (UTC)

No.

As explained above, the current system is already tilted towards those who hold copyrights, and against those who are seeking to exercise other rights, like privacy or freedom of speech. Nor does the current system achieve balance between the purposes of encouraging individual creativity and benefiting society as a whole.

The rush to make more "efficient" enforcement systems, like the HADOPI system, have made this balance worse. They have failed to encourage creativity, and are usable only by large copyright industry players - failing to provide tools that the new, small creators (like Wikimedia editors) can use to enforce their own rights. At the same time, these efforts have also violated rights of due process and privacy, and have ignored the exceptions that are theoretically enshrined in copyright law.

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