The European Commission started a call for comments concerning copyright exceptions . We decided to give them a joint response. This page is there to draft our response which should be done until November 30th. 2008. Please discuss things on the discussion page.
The EC consultation paper, which includes the Green Book and the call for comments, can be found here. VERY IMPORTANT: "The questions submitted are of an indicative nature only and stakeholders are free to submit comments on any other issues that are addressed or touched upon in this Green Paper", says the EC; this means that we can add more answers as long as they reply concepts actually touched by this Green Book.
Draft
This is still a draft. If you don't agree to some of the responses or know better formulations, just edit it!
Cover letter
The Pirate Party International is a political umbrella organization for Pirate Parties around the world. The first Pirate Party was founded in Sweden. What joins them is that they all have a critical view on how some aspects of copyright, patents, restriction on free information and erosion of civil rights and liberties are being handled by today by politicians.
The Pirate Parties are composed of individuals - among them: musicians, songwriters, writers, graphical artists, software developers and many copyright-related professional groups which are or could be legitimate stakeholders for levies. Because of its background and history, the pirate movement has developed a special point of view for copyright issues and levies.
General
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Introduction
The purpose of the Green Paper
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The scope of the Green Paper
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General issues
Rather that thinking of implementation of current copyright exceptions, EU should think of redefine the whole legal framework concerning author's rights, having the balance between author's rights, the citizens' right to access culture, and the rest of human rights as the main goal.
Nonetheless, "the right to the protection of the moral and material interests resulting from one’s scientific, literary and artistic productions is subject to limitations and must be balanced with the other rights recognized in the Covenant", as it's indicated in the 17/2005 Comment from the Economic & Social Council of the United Nations. However, all laws, rules and agreements have been always focused, not on the author's interests, but on the rightholders' interests; and it's significant to point out that authors frequently are not rightholders -being Rights Management Organisations (RMOs), record labels and such the ones holding commercial rights-.
With the current legal framework we have to daily face three potential threats:
- a threat against author's rights made by rightholders not being the authors of the intellectual works; we can find an example in the Muzikalia affair (video & article in Spanish), where authors who where members of SGAE (Spain's biggest RMO), even their record labels, gave authorisation to broadcast, even allow to download, their songs for free; however, SGAE claimed for a fee -6 % of overall revenues or, otherwise, a minimum fee of 750 €- and Muzikalia, having no incomes -it's an indie music magazine-, was forced to close its radio station. In other words: authors were disallowed to gave their own songs for free, just because the RMO where they belonged wanted money for it; when laws concerning author's rights strip those rights from the authors -their legitime holders-, it means that such laws need to be deeply reformed.
- a threat against citizens' right to access culture; the former example, considering that it's an indie music magazine which at that time focused mainly on non-mainstream music groups, was one of those examples of people being able to reach, know and enjoy rather unknown groups -as only a few groups enjoy the marketing efforts of major labels-; if P2P non-commercial filesharing is forbidden, if initiatives like Muzikalia radio station are threatened, the citizens' access to all culture -not to what major labels decide can be culture- is severely undermined.
- a threat against the rest of rights recognized in the Covenant: to allow private copying, as we said at our reply to EC Consultation on levies, must be known which intellectual works are copied by who, how many times, and who does those copies' rights belong to; besides the fact that even considering 2001/29/EC Directive --, levies shouldn't exist as no harm is found, the thing is that it also cannot be done without harm fundamental rights like privacy. This is only an example of how the quest for the protection of rightholders -not of authors- has spoiled fundamental rights and liberties.
Exceptions: Specific issues
Exceptions for libraries and archives
Digitalisation (Preservation)
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The making available of digitised (sic) works
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Orphan works
We are highly concerned with the orphan works issue; and we are because of the US example, and how it would be used by EU authorities trying to set a legal framework for them.
An orphan work is one which, having been registered in an intellectual works registry, when someone wants to make usage of it -unless it has been registered with a copyleft license or simmilar, it requires authorisation from the author depending on the kind of aimed usage-, is unable to locate the author to be able to get an explicit consent from the author for the aimed usage.
Until Summer 2008, in the USA, if the author was not located, the intellectual work could be freely used, even with commercial purposes ... unless the author appears later; then, the author was able to claim royalties for the commercial revenues of the intellectual works. A law debated last summer in the USA, and passed at last september proposed the following scenario, which we find not acceptable; thus, we hope this is not in European Commission's mind:
- to avoid intellectual works being considered orphan, authors should have to pay a yearly fee; this may be a problem for authors having really limited yearly earning, thus -if having a wide catalog of intellectual works created by them- being unable to pay the fee for all of their works and/or all years.
- a novel author would may send works to editors, only to be rejected, and the sent copies shelved in editor's archives
- some time later, while commercial author's rights still not having expired, people at one editing company would may recover the work, change editor's mind and find it suitable for commercial purposes
- alleging not being aware of who the author of the works is, the editor would claim to have right to use the orphan works
- after the author discovers the unauthorised commercial usage of the intellectual works, the editor wouldn't have to pay for any infringement, and just paying a reasonable fee -which, depending on what a judge may find reasonable, may be 0'01-0'02 $/album (20 $ albums), thus having millionary revenues while only paying a few thousand dollars to the real author
We wholeheartedly hope this is not in EC's mind.
The exception for the benefit of people with a disability
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Dissemination of works for teaching and research
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User-created contents
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Questionnaire
1) Should there be encouragement or guidelines for contractual arrangements between right holders and users for the implementation of copyright exceptions?
Teirdes's approach
Yes.
Aiarakoa's approach
Of course that it may be interesting to set several guidelines in this search for balance between author's rights and the rest of human rights; however, first the very law has to express such balance, otherwise we would be trapped in a quite unfair legal framework -who threats author's rights (with authors often not being rightholders, at least when talking about material interests), citizen's rights on culture and the rest of human rights (e.g., privacy, freedom of speech, equality before the law and others)-, which would avoid us to solve the main issues concerning author's rights.
2) Should there be encouragement, guidelines or model licenses for contractual arrangements between right holders and users on other aspects not covered by copyright exceptions?
Teirdes's approach
Yes.
Aiarakoa's approach
Same as for the previous question, while it would be interesting to have such guidelines, prior to that it's mandatory to review the whole legal framework concerning author's rights -not just concerning copyright exceptions- to ensure balance between the protection of the moral and material interests resulting from one’s scientific, literary and artistic productions and the other rights recognized in the Covenant.
3) Is an approach based on a list of non-mandatory exceptions adequate in the light of evolving Internet technologies and the prevalent economic and social expectations?
Teirdes's approach
No.
Aiarakoa's approach
No, as Member States experience shows that, having legislative branches filled with MPs keener to hear pro-copyright lobbies than the rest of society, usually many of those exceptions, even most of them, are not applied, or at least not fully or properly.
For the good of the certainty that the rule of law shall prevail, the rules have to be crystal clear. Furthermore, citizen's rights shouldn't be treated as exceptions to author's rights, as citizens have our right to enjoy the culture as a fully recognized right in the Covenant; citizen's rights on culture must have their own presence in the legal framework concerning author's rights.
4) Should certain categories of exceptions be made mandatory to ensure more legal certainty and better protection of beneficiaries of exceptions?
Teirdes's approach
Yes.
Aiarakoa's approach
It has already been replied in the answer to Question 3: yes, have to be mandatory; and not to be considered as exceptions to author's rights, but as real citizen's rights, as they are declared in the Covenant.
5) If so, which ones?
Teirdes's approach
- further investigations needed, check article five http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML)
Aiarakoa's approach
Not some, but all of them.
6) Should the exception for libraries and archives remain unchanged because publishers themselves will develop online access to their catalogues?
Teirdes's approach
No
Aiarakoa's approach
No, because as long as public libraries allow citizens to temporarily borrow books for free reading, and following the same philosophy, online access to works available at public libraries' catalogues must be allowed for the good of citizen's right to enjoy culture.
Furthermore, as detailed in previous answers, instead of talking about how exceptions should be implemented, it would be much better to review the whole legal framework -including stopping the usage of the notion of exceptions to start talking about citizen's rights on culture, as declared in the Covenant-.
7) In order to increase access to works, should publicly accessible libraries, educational establishments, museums and archives enter into licensing schemes with the publishers? Are there examples of successful licensing schemes for online access to library collections?
Teirdes's approach
No
Aiarakoa's approach
Absolutely not required. As said in the answer to Question 6, with the same legal framework which allows people to currently access works available at public libraries, public libraries must be allowed to make available their catalogues for online access.
While publishers may argue that the access to paper books is limited by the amount of available copies at public libraries, the fact is that no economic loss would be made regarding the purchase of published copies -even, sales would may increase as the published works would become widely known by users of public libraries, due to the spread of those works made by libraries-.
And if publishers argue that they also want to make available online access to their books, and that public libraries would lower their audiences -i.e. lowering potential incomes e.g. with advertisements-, same can happen with actual book borrowing system; thus, if editors want to gain audience compared to public libraries, they should offer commodities, additional advantages to convince users to use editor's online access instead of public libraries'.
8) Should the scope of the exception for publicly accessible libraries, educational establishments, museums and archives be clarified with respect to:
(subquestion) (a) Format shifting;
Teirdes's approach
Yes
Aiarakoa's approach
Yes, as detailed in the former answers.
(subquestion) (b) The number of copies that can be made under the exception;
Teirdes's approach
Yes.
Aiarakoa's approach
Yes, as detailed in the former answers.
(subquestion) (c) The scanning of entire collections held by libraries;
Teirdes's approach
Yes.
Aiarakoa's approach
Yes, as detailed in the former answers.
9) Should the law be clarified with respect to whether the scanning of works held in libraries for the purpose of making their content searchable on the Internet goes beyond the scope of current exceptions to copyright?
Teirdes's approach
Yes
Aiarakoa's approach
Yes, as detailed in answers to questions 6 & 7.
10) Is a further Community statutory instrument required to deal with the problem of orphan works, which goes beyond the Commission Recommendation 2006/585/EC of 24 August 2006?
Teirdes's approach
- see 5
Aiarakoa's approach
Abuse of orphan works must be avoided at any cost, because money would become unfairly relevant in the exercise of author's rights -thus, only rich authors and editors being able to properly avoid unauthorised commercial usage of their works, while authors with low incomes would become unable to defend their rights and also unfairly compensated-.
Thus, of course, the orphan works issue must be dealt with; however, by no means the US example should be followed.
11) If so, should this be done by amending the 2001 Directive on Copyright in theinformation society or through a stand-alone instrument?
Instead of following the US example, initiatives like SafeCreative, which allow easy register of intellectual works -thus avoiding works becoming orphan, and easing the search for authors of certain works- should be encouraged. It may be done with mere stand-alone instruments, rather than modifying the Directive; however, as the Directive has to be modified anyway because of the reasons explained in former questions, it would may be better to ensure legal certainty.
Teirdes's approach
see 10
12) How should the cross-border aspects of the orphan works issue be tackled to ensure EU-wide recognition of the solutions adopted in different Member States?
Teirdes's approach
Orphan works should be released to public domain
Aiarakoa's approach
The encouragement of resources like SafeCreative would also solve the cross-border aspects of the orphan works issue, as being international platforms.
13) Should people with a disability enter into licensing schemes with the publishers in order to increase their access to works? If so, what types of licensing would be most suitable? Are there already licensing schemes in place to increase access to works for the disabled people?
Teirdes's approach
Yes (typ: free-for-use)
14) Should there be mandatory provisions that works are made available to people with a disability in a particular format?
Teirdes's approach
Yes (No?)
15) Should there be a clarification that the current exception benefiting people with a disability applies to disabilities other than visual and hearing disabilities?
Teirdes's approach
Yes!
16) If so, which other disabilities should be included as relevant for online dissemination of knowledge?
Teirdes's approach
Dyslexics?
17) Should national laws clarify that beneficiaries of the exception for people with a disability should not be required to pay remuneration for using a work in order to convert it into an accessible format?
Teirdes's approach
Yes.
18) Should Directive 96/9/EC on the legal protection of databases have a specific exception in favour of people with a disability that would apply to both original and sui generis databases?
Teirdes's approach
Yes.
19) Should the scientific and research community enter into licensing schemes with publishers in order to increase access to works for teaching or research purposes? Are there examples of successful licensing schemes enabling online use of works for teaching or research purposes?
Teirdes's approach
No.
20) Should the teaching and research exception be clarified so as to accommodate modern forms of distance learning?
Teirdes's approach
Yes.
21. Should there be a clarification that the teaching and research exception covers not only material used in classrooms or educational facilities, but also use of works at home for study?
Teirdes's approach
Yes.
22. Should there be mandatory minimum rules as to the length of the excerpts from works which can be reproduced or made available for teaching and research purposes?
Teirdes's approach
No.
23. Should there be a mandatory minimum requirement that the exception covers both teaching and research?
Teirdes's approach
Yes.
24. Should there be more precise rules regarding what acts end users can or cannot do when making use of materials protected by copyright?
Teirdes's approach
Yes.
Aiarakoa's approach
Of course there should be. Using the Spanish example (in Spanish) -where Spanish Congress wants to give a public organism controlled by the pro-copyright lobby (it has 41 seats, 14 of them controlled by pro-copyright lobbies, plus 2 additional from Ministry of Culture, always keen to agree with the lobby) power to control contents in the Internet-, not acknowledging users' rights -the EC paper refers some examples like criticism, review, parody, etc- can lay the foundations for a powerful censor context where rightholders may lessen the freedom of speech, something unconceivable.
25. Should an exception for user-created content be introduced into the Directive?
Teirdes's approach
Yes.
Aiarakoa's approach
Of course, though not as an exception to author's rights, but as citizen's rights as declared in the covenant -e.g., concerning freedom of speech-. However, prior to this, the whole Directive should be reviewed to ensure balance between author's rights and the rest of human rights, as stated in the Covenant and remarked by the UN Economic and Social Council.
