La Quadrature du Net has sent its submission to the European consultation on the “Intellectual Property Rights” Directive (IPRED). The citizen organization asks the EU Commission to renounce to increasing repression against the sharing of cultural goods over the Internet, and calls for an open-minded reflection on the future of copyright, patent and trademarck law. Lawmakers, citizens and NGOs must all engage in this crucial debate that will directly shape the future of the Internet.
Download LQDN’s 23-page document: “IPRED Versus The Sharing of Culture: Moving Away From Enforcement“ (in PDF).
Executive summary: EU’s Internet policy at crossroads
More than 10 years after adopting a framework for the development of information society services and the promotion of freedom of expression online, the European Union faces a crucial choice: It can either pursue the promotion of democratic goals and innovation in the digital environment, or remain blind to social and technical realities by enforcing a copyright regime that is at its very core unadapted to the Internet. Sadly, the European Commission’s documents regarding the revision of the “Intellectual Property Rights” Enforcement Directive (IPRED) suggests that forces of the status quo could prevail.
In the age of the Internet, where any citizen can have access to a global communications infrastructure to access and disseminate culture and knowledge, our legal system must give up on the idea that each instance of transmission of artistic works must be submitted to prior authorization, especially in cases of non-profit transmission. The debate needs to move away from enforcement and focus on financing schemes and business-models that can accommodate widespread social practices, such as non-commercial file-sharing of cultural works, while providing appropriate resources for creative activities.
However, the Internal Market Directorate General of the EU Commission, which is supervising the revision of IPRED, appears too much in line with the copyright industry to break away from outdated policies. Even though it has undertaken laudable efforts to create a more integrated single digital market, its determination to repress non-commercial sharing of cultural goods over the Internet is endangering the technical and legal architecture on which are based the democratic and economic potential of the Internet.
In Part One of our response to the consultation, we point out that the arguments in favor of increased enforcement of copyright, patent or trademark law in the digital environment are not based on any sound evidence. Because they similarly apply to for-profit and not-for-profit infringements, they give way to the repression of widespread and positive social practices, such as the sharing of cultural works over the Internet. We assert that the impact of sharing on the creative economy as a whole is proven to be neutral or positive.
In Part Two, our analysis of the Internal Market DG documents on the revision of IPRED unveils the Commission’s strategy to transform Internet companies into a copyright police, monitoring their user’s activities to prevent any potential infringement, in the sake of preserving the copyright industries’ control over the distribution channels of cultural works. The Commission seems keen on violating the letter and spirit of the e-Commerce directive’s provisions that aim at creating a balanced legal regime for intermediary liability. These were adopted to promote the development of the digital economy while fostering freedom of expression online, and must remain a cornerstone of future Internet policy.
In Part Three, we conclude by stressing that the Commission’s proposals disrespect the fundamental rights enshrined in EU law, in particular freedom of expression and privacy. We make constructive propositions to better protects these rights in the online environment and engage a meaningful reform of copyright; one that could help the EU pave the way for an innovative and diverse creative economy.
Recommendation 1: Rather than increasing repression against non-commercial infringements, IPRED should make it clear that the enforcement tools provided in the directive only apply to “for-profit infringements”, or acts carried on with “commercial intent”.
Recommendation 2: No further enforcement measures should be adopted before the Commission has made available a full assessment of IPRED, as required by the directive, looking into its effects on inter alia fundamental rights, access to culture and knowledge as well as innovation.
In parallel, the Commission should undertake a comprehensive assessment on the wider impact of non-commercial distribution of cultural works on the Internet, looking into its effects on inter alia consumer welfare, cultural diversity, artist promotion, business-models.
Assessments of both enforcement measures and non-commercial distribution of cultural works shall be based on creditable evidence, transparent and realistic assumptions and objective peer reviewed analysis.
Recommendation 3 : Consistent with the European Court of Justice “Promusicae” ruling, EU law should not force on-line service providers to give away the data of their subscribers or users, especially in cases of alleged not-for-profit infringements (such as file-sharing), for which such disclosures are disproportionate.
Recommendation 4: Damages should only by awarded in cases of for-profit infringements and be based on empirical data regarding the material prejudice suffered by the rights-holder.
Recommendation 5: EU law should affirm the principle that there should be a presumption of legality on all uploaded content.
In particular, in order to strengthen the principle enshrined in article 15 (prohibition on general monitoring obligation), the e-Commerce directive should ban all types of mandatory preventive mechanisms aimed at preventing the publication of certain types of online content, whether these are imposed by administrative or judicial authorities. Article 12’s “mere conduit” principle needs to be strongly reaffirmed.
The role of judicial authorities to protect online free speech should be reasserted throughout EU Internet law.
Recommendation 6: The EU must start reflecting on funding schemes that can go hand in hand with the full recognition of not-for-profit uses of cultural works on the Internet and engage in a debate with rights-holders discuss its implementation.
Recommendation 7: Moving forward in the reflection over so-called “user generated content”, the Commission should:
– follow the good practice of free re-use licenses, such as Creative Commons licenses;
– consider what can be achieved by way of general exceptions and other users’ rights;
– address other questions, such as the possible creation of a retribution for rightholders whose content is re-used for non-commercial purposes. The creative contribution could provide an appropriate framework for such a compensation.
Recommendation 8: As a consequence, the Commission should move ahead with the possible actions outlined in the document, by:
– reforming collective management for online commercial distribution and continue its work on maximizing licensing efficiency for commercial users by aggregating the rights involved in the online dissemination of creative content (rights of reproduction, performance right). A “one-stop shop” would provide commercial users with an easy way to clear all the rights attached to copyrighted content. The Commission should make sure that the licenses for online dissemination do not entail stringent financial conditions on commercial users, especially if they are small businesses.
– finalizing the creation of freely accessible and comprehensive online databases containing information on rights and owners for all creative works (“ARROW” project).