A howl on the wind…

There is an ongoing Public Consultation on the review of the EU copyright rules questionnaire with deadline February 5th, 2014, and here are my answers. I did not answer all questions; some due to lack of opinion, some due to lack of standing, and some due to lack of knowledge about the domain.

Type of Respondent

• End user/consumer (e.g. internet user, reader, subscriber to music or audiovisual service, researcher, student)
• Author/Performer
• Intermediary/Distributor/Other service provider (e.g. online music or audiovisual service, games platform, social media, search engine, ICT industry)

1. Have you faced problems when trying to access online services in an EU Member State other than the one in which you live?

• Yes: Several YouTube videos have been restricted to specific EU member states.

2. Have you faced problems when seeking to provide online services across borders in the EU?

• No

5. 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?

• No

6. 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?

• No

7. Do you think that further measures (legislative or non-legislative, including market-led solutions) are needed at EU level to increase the cross-border availability of content services in the Single Market, while ensuring an adequate level of protection for right holders?

• Yes: Artificial content restrictions should be abolished. We live in one world; region based restrictions no longer make sense, and instead harm content producers.

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

• Yes

9. Could a clarification of the territorial scope of the “making available” right have an effect on the recognition of your rights, on your remuneration, or on the enforcement of rights?

• No

10. 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

11. Should the provision of a hyperlink leading to a work or other subject matter protected under copyright, either in general or under specific circumstances, be subject to the authorisation of the rightholder?

• No: There exists several effective ways of restricting access to resources. It is generally assumed that unrestricted access to any URL is blessed by the author, or falls under security concerns – not copyright.

12. Should the viewing of a web-page where this implies the temporary reproduction of a work or other subject matter protected under copyright on the screen and in the cache memory of the user’s computer, either in general or under specific circumstances, be subject to the authorisation of the rightholder?

• No: As above, the content provider can trivially restrict access if they want to, so one must assume if no restrictions are in place that the provider meant for the public to view it.

13. Have you faced restrictions when trying to resell digital files that you have purchased (e.g. mp3 file, e-book)?

• Yes: Digitally downloaded games from services such as Steam cannot be gifted or resold.

14. 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.

• It would greatly reduce the profits of the author and may lead to raised prices for new digital goods.

15. Would the creation of a registration system at EU level help in the identification and licensing of works and other subject matter?

• Yes

16. What would be the possible advantages of such a system?

• Having a single central authority with which to register your works would simplify the process nicely.

18. What incentives for registration by rightholders could be envisaged?

• An added 5 years of copyright protection, for a total of 25 (sic) years.

20. Are the current terms of copyright protection still appropriate in the digital environment?

• No: Copyright terms are far too long. They should be max 20 years, with an optional added 5 years via registration or renewal.

21. Are there problems arising from the fact that most limitations and exceptions provided in the EU copyright directives are optional for the Member States?

• No opinion

22. Should some/all of the exceptions be made mandatory and, if so, is there a need for a higher level of harmonisation of such exceptions?

• Yes: Ideally, we should have a single unified set of laws governing all of Europe. We should not have to research whether exception X is also true for our neighbour countries.

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?

• No: If anything, there should be less or no flexibility in order to force unified laws across member states.

26. Does the territoriality of limitations and exceptions, in your experience, constitute a problem?

• Yes: Voluntarily putting a work into the Public Domain is impossible in some member states.

28. Have you experienced problems with the use by libraries, educational establishments, museum or archives of the preservation exception?

• No

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?

• It should be made clear that archiving any work, whether digital or physical, and whether DRM’ed or in-the-clear, must be allowed or even mandated by European libraries. Authors must provide a DRM-free copy of a work for the purpose of archiving.

36. Have you negotiated agreements with libraries to enable them to lend books or other materials electronically, including across borders?

• No

40. 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?

• No opinion

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)?

• No opinion

42. 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?

• No

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?

• Teachers should have a blanket exemption from copyright, and should have free access to archived works, for the purpose of illustration or exemplifying.

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?

• For the purpose of compiling aggregate or snippet results, text/data mining should be exempt from copyright. (redistributing whole or longer texts is a different matter)

57. Are there other issues, unrelated to copyright, that constitute barriers to the use of text or data mining methods?

• Online content providers often intentionally make text/data mining difficult or impossible. They should be compelled to not actively hinder such research.

58. 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?

• Yes: It is very common that a work published online is “not available in your country/region”. Artificial region lockouts should be abolished.

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: The recommendations from Mr. A. Vitorino sound good.

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: Once a person has licensed a work in any form, they should be free to transform, transcode, transport, or copy that work for their own personal use.

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?

• Rightsholders should not be able to force a person to license a work multiple times, and no extra levies should be imposed on online services.

67. Would you see an added value in making levies visible on the invoices for products subject to levies?

• Yes: It would make the average consumer see that levies even exist, enabling them to make informed decisions. Most either don’t know about or don’t think about levies.

73. Is there a need to act at the EU level (for instance to prohibit certain clauses in contracts)?

• Yes: Authors should not be able to transfer their rights in perpetuity (except to public domain). Impose a 5 year limit on exclusivity contracts.

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

• No opinion

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 opinion

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?

• Yes

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?

• Yes please, absolutely. It would be great to have a unified EU copyright zone.

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.

• Reducing copyright to 20+5 years is unfortunately a pipe dream, but at least reduce it to the minimum 50 years mandated by Berne and TRIPS. The ever increasing length of copyright is extremely harmful to society.

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