Copyright consultation - model responses

Why this consultation matters

European copyright legislation is a patchwork. The rules that govern it stem from a time when many of the problems that copyright poses for the free flow of information and access to knowledge on the internet were yet unforeseen. Many national differences make European copyright intransparent and keep us from being able to share culture across borders in the spirit of European community. Finally, the European Commission is showing some initiative to tackle this problem. It now states that it will make a decision in 2014 on whether to propose new copyright laws.

From 05.12.2013 to 05.02.2014, the European Commission is inviting all interested parties, including individuals and NGOs, to offer their thoughts on how the EU copyright rules should be developed. For this purpose, the Commission has started a public consultation, which is basically a catalogue of open-ended questions. The answers to this consultation will be taken into account when the Commission decides on starting a legislative initiative for copyright reform. Replying to this consultation serves several purposes:

  • If the Commission gets lots of replies from citizens and NGOs, it must acknowledge that there is high interest in this topic. Only the Commission can start legislative initiatives on the European level, so we need to convince them that copyright reform is necessary.

  • A European copyright reform may greatly improve the free exchange of knowledge and culture, but it may also make things worse! Industry lobbyists have a lot more resources available to reply to public consultations. To have the voices of the people heard and to steer copyright reform in the right direction, it's important to counter-balance industry's replies with a lot of perspectives from users and creators.

  • Many of us are involved in creative projects that are restricted by the current copyright regime. By sharing your personal issues with copyright in the consultation, you are giving the Commission insight into the wide variety of creative and innovative projects that are affected by copyright, not just those of big business.

But this looks like a lot of work!

That's where we come in. Yes, the consultation has a whopping 80 questions, but that doesn't mean you have to read, let alone reply to all of them! We are offering an overview of which questions treat which issue. If you want to ask the Commission to legalize filesharing, go to questions 22-26, etc. We are also giving you a recommendation on how to reply to the Yes/No questions as well as some notes on which issues to highlight in your reply. Feel free to just leave questions blank that don't concern you or that you are unsure about. It's more helpful if you give a personal answer to 5 questions than if you copy/paste a reply to all 80. In a previous consultation, the Commission reported that it got a lot of replies from individuals, but that they were all identical. The Commission is more likely to take your views into account if you present your position in your own words!

With this guide, we are making it as easy as possible for you to weigh in on the copyright debate! We welcome any additions and improvements on this guide that make it more comprehensive and easy to use.

This is the consultation document from EC: http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/docs/consultation-document_en.pdf

Website: http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/index_en.htm

You can use this web-template to create formatted documents for submission to the Commission: http://okfde.github.io/eucopyright/

Guide to answering copyright consultation

Answers by topic

Yes to copyright reform:

Q 4, 7, 78, 79

Question 7 and Question 78-79: yes we want there to be a legal reform, and yes we want a single European title. this is by far the best way to get legal certainty for everyone. copyrightcode.eu is a good example of how such a simpler copyright scheme could look. In question 4, you can also mention that copyright harmonization through legal reform would be the best solution for accessing content all over Europe.

- filesharing

Q 22-26, 80

If you want to legalize file-sharing, you need to emphasize that sharing of culture and making private copies on the internet should be permissible when you answer questions 22-26. You can also add additional comments on enabling the legally certain operation of torrent trackers in question 80. European Unionen tradition is rooted in peer-to-peer: we have the tradition since a long time to enable cooperation on an equal,  symmetric and transparent basis. European internet and copyright values should reflect that.

- no extension of copyright to fundamental functions of the Internet (caching, linking)

Q 11, 12

It's important that questions 11-12 are answered negatively - linking, hyperlinking and viewing webpages should NOT be considered copyright infringements. There have to be ways of permitting this, otherwise the internet breaks.


Q 13, 32(b), 36(b), 80

DRM concerns on the one hand library databases and access at universities. This is question 32(b) and 36(b) for private persons and end-users.

But it should also be more extensively addressed in question 80. This essay covers important differences between EU and US law: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2338976

It should be clarified that DRM should not interfere with any of the legal flexibilities, rights or opportunities granted to users of culture. Also DRM should not override the exceptions and limtations codified in law. We want legislators to decide what legal and technical rights people have and do now have. Technology companies should not do that.

DRM can also be mentioned in question 13 that asks if one has experienced problems with trying to re-sell digital works.

- protection terms

Q 20

If you want shorter protection terms, answer question 20! A reasonable protection term according to Rufus Pollock (British economist at Cambridge University) is about 15 years. Rick Falkvinge and Christian Engström have proposed 25 years maximum protection. The PP-CZ proposes 5--10 years.

See Falkvinge/Engström: http://www.copyrightreform.eu/ 

- registration requirements

Q 15-18

Questions 15-18. In many countries around the world one previously needed to register the copyrighted work one wished to commercially exploit with a central copyright registry. This brought greater legal certainty and clarity to a lot of actors. Copyright by default creates a lot of problems because it is impossible to find out who is the right owner of the right.

In particular mandatory registration to have a copyright should be required. https://en.wikipedia.org/wiki/Copyright_registration#Is_registration_required.3F

Copyright limitations and exceptions

Q 21, 22

Answer yes to questions 21 and 22 to make sure that all exceptions and limitations to copyright (for example for the purpose of science and education) are made mandatory for all member states!

- libraries 

Q 21-26, 32(b), 36(b)

Libraries and DRM are covered DRM in question 32(b) and 36(b) for private persons and end-users

Also questions 21-26 on more generic flexibilities in copyright. Consider the Swedish library fund - is it valuable? (basically a tax sponsored levy which goes only to Swedish authors)

- remixing

Q 21-26

Questions 21-26. In particular the quotation and citation right needs to cover also audio and video. Similarly for educational remixing (remixing to educate people). Parody, quotation, citation, educational remixing must cover audio, images and video (audio-visual). 

Competition in derivative markets (advertisement) will be hugely advantaged by a remixing exception which doesn't exclude commercial remixing (DJs, advertisers, et c) so it's important that these exceptions cover also commercial activities.

Mention that remixing is a popular cultural activities that bridges cultural barriers between people from different member states and must therefore be promoted as a means of European integration.

- fair use

Q 24

If you want a fair use clause in European copyright, question 24 is the right place to mention it. You can argue that it would provide the copyright framework more flexibility to react to future technological developments and innovative uses of culture i.e. for purposes of reporting and artistic expression.

- visually impaired

Q 21-26

Questions 21-26. The European Union has already supported the Treaty for the Blind at WIPO which ensures better accessibility to literary works for visually impaired. 

About the treaty: http://keionline.org/node/1767 

Michel Barnier (EU Commission) supports the treaty: http://europa.eu/rapid/press-release_MEMO-12-603_en.htm

- legal certainty for p2p and torrent networks

Q 13, 14, 21-26, 80

Peer-to-peer networks, torrent networks, file-sharing and distributed culture is in questions 21-26 (flexibilities in copyright - they should allow for this), or question 80.

Allowing for second-hand sales (question 13-14) would also be conducive to finding new, less monolithic business models for the European Union.


- punishment and intermediary liability

Q 75-77.

One can easily respond middle-men should not be liable here. Community wireless networks, anonymizing services, fixed internet service providers, online data storage places, search engines and other actors suffer uncertainty because of the intermediary liability in copyright. Tell the Commission your favourite story of such liability and how it made the world worse! In addition, there should be a Notice-and-Action directive which allows for service providers and citizens to know who is requesting their stuff down from the web, and why (see https://ameliaandersdotter.eu/2013/07/06/brev-till-michel-barnier-om-notice-and-action-i-eu ). Copyright law should be under civil law, not under criminal law.

Information on previous consultations

A previous reponse we did on trade secrets consultation ended up like this: https://ameliaandersdotter.eu/2013/10/06/trade-secrets-galore-commission-consultation-reveal-citizens-dont-want-it

Summary of consultation responses: http://ec.europa.eu/internal_market/consultations/docs/2012/trade-secrets/130711_summary-of-responses_en.pdf (Pirate Parties specifically mentioned :D)

We also did joint consultation responses to the IPRED consultation, but I (Amelia) have not analyzed the summaries of those responses are yet. https://ameliaandersdotter.eu/2012/12/17/commission-ipred-consultation-answering-guide-citizens-w-copyrights (but they should be here: http://ec.europa.eu/internal_market/consultations/docs/2012/intellectual-property-rights/summary-of-responses_en.pdf or http://ec.europa.eu/internal_market/iprenforcement/directive/index_en.htm somewhere)

This is the IPKat analysis by Eleonora Rosati. She's quite good legally: http://ipkitten.blogspot.com/2013/12/a-closer-look-at-public-consultation-on.html