This post originally appears on theCommunia Association blog. Creative Commons is a founding member and active participant in Communia.
Last week Thursday the European Commission launched its much anticipatedpublic consultation on the review of the EU copyright rules. This consultation is the first visible sign of the second track of the Commission’s attempt to modernise the EU rules (the first track consisted of therather unsuccessful Licenses for Europe stakeholder dialogue). In the words of the Commission the focus of the consultation is on:
确保欧盟版权监管框架符合数字环境的宗旨，以支持创造和创新，充分挖掘单一市场的潜力，促进经济增长和投资，并促进文化多样性。
With regards to the contents of the consultation, a first reading reveals a mixed bag of questions, with a surprising amount of them actually touching on issues that are closely related toour own policy recommendations. The consultation comes in the form of a 37 page document with a grand total of 80 questions that cover everything from the functioning of the single market for copyrighted works, linking and browsing, copyright term duration, registration of copyrighted works and exceptions and limitations for cultural heritage institutions, education, research, persons with disabilities and “user generated content”. In addition, there are questions about private copying and levies, the fair remuneration of authors and performers, respect for rights, and even the possibility of a single EU copyright title. Finally there is an open question for everything else that stakeholders might want to tell the Commission.
The deadline for providing answers to all of these questions is the 5th of February, which if one takes into account the upcoming holiday period is rather short.Below we highlight a number of questions from the consultation. In addition to this we will prepare a more thorough analysis and make our own response to the consultation public at a later date.
Rights and the functioning of the Single Market
The first set of questions deals with ‘Rights and the functioning of the Single Market’. According to the Commission…
因此，目前的主要问题是，中期是否需要在欧盟层面采取进一步措施(立法或非立法，包括以市场为主导的解决方案)，以增加单一市场内容服务的跨境可用性，同时确保权利持有人得到充分的保护。
The questions related to this section ask for examples of problems in this area and then invite stakeholders to provide their views on how these problems should be addressed (usually split between ‘legislative solutions’ and ‘other solutions’). This structure repeats itself throughout the consultation.
Specifically, the commission is interested in perspectives on the issue of territoriality of rights clearance (i.e., should the current situation where service providers need to obtain permission for all member states where they want to offer their service be changed, for example by introducing a country of origin rule where rights only need to be cleared for the member state where the service providers is based?).
In addition, this section also contains two questions on linking and browsing that show a worrisome lack of understanding how the internet works:
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?
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?
While it should be obvious to anyone who has ever used the internet that requiring authorisation of the right-holders for any of these acts would fundamentally break the internet, it is important to realize that both questions are currently being debated in European courts. In this context it is important that these questions are answered with a resounding no, so that it leaves European policy makers no other option than to propose legislation that would clarify that both browsing and linking do not require permission from rightsholders (or anyone else).
The remainder of this section contains questions that explore the length of copyright protection (Are the current terms of copyright protection still appropriate in the digital environment?) and the registration of works (Would the creation of a registration system at EU level help in the identification and licensing of works and other subject matter?). Communia has longstanding policy recommendations on both of these issues, and we would hope that in answering the consultation others will look at these recommendations.
Recommendation #1:应当缩短著作权的保护期。版权保护的时间过长，再加上没有手续，对我们共享的知识和文化的可及性是非常不利的。应当缩短著作权的保护期。
Recommendation #8:In order to prevent unnecessary and unwanted protection of works of authorship, full copyright protection should only be granted to works that have been registered by their authors. Non registered works should only get moral rights protection.
Limitations and exceptions in the Single Market
咨询的第二部分集中在“单一市场的限制和例外”。communa认为，根据数字环境的要求，调整2001年《版权指令》中对版权的例外和限制必须是欧洲版权规则任何改变的核心。Again, we have a related policy recommendation that provides a good basis for addressing issues related to exceptions and limitations:
Recommendation #3:Harmonize Exceptions and Limitations of the Copyright Directive among the Member States and open up the exhaustive list so that the user prerogatives can be adapted to the ongoing technological transformations.
It is good to see that the consultation contains questions related to all aspects of this recommendation (harmonisation, need for new exceptions and limitations, and need for more flexibility).
The rest of the section on limitations and exceptions touches on specific types of uses/users benefiting from exceptions and limitations. In the first four cases (access to content in libraries and archives, teaching, research, and users with disabilities) the Commission wants to know if the relevant exceptions and limitations continue to achieve the objectives envisaged or whether they need to be updated to cover use in digital networks. The consultation also identifies 2 types of use (Text and data mining and so-called ‘User-generated content’) that might benefit from new exceptions.
Again some of the Communia policy recommendations are relevant here and can provide guidance when answering the questions related to education and memory institutions:
Recommendation #10:Memory Institutions must be enabled to fulfill their traditional function in the online environment. In order to be able to provide access to knowledge and culture they must benefit from compulsory and harmonized exceptions and limitations that allow them to make their collections available online for non commercial purposes.
Recommendation #12:必须加强现有的例外和限制，并将其扩大到正规教育机构以外的使用，从而促进人们利用受版权保护的作品进行教育和研究。所有公共资助的研究成果和教育资源必须作为开放获取材料提供。
Other Questions
Among the remaining questions, those in the sections on ‘A single EU Copyright Title’ and ‘Respect for Rights’ are the most noteworthy.
It is refreshing to see the Commission devote a section on the idea of a single European copyright title. The idea of having a unified EU Copyright Title that would totally harmonise the area of copyright law in the EU and replace national laws has been part of academic discussion about copyright in Europe for quite some time (see here for a recent proposal).
另一方面，“尊重权利”是行使权利的委婉说法。与咨询意见所建议的相反，尊重不是通过执行来创造的，而是通过建立尽可能多的利益相关者认为公平和平衡的规则来创造的。考虑到这一点，在处理整个咨询过程中确定的其他问题时，认真对待用户的关切是提高“尊重权利”最有效的方法。
Instead, the Commission has added a question that is explicitly aimed at inviting answers promoting stronger liability of intermediaries for copyright infringement by third parties:
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?
This is the exact same proposal that was rejected by a broad coalitionthat brought down the SOPA/PIPA legislative proposals in the US今年早些时候。这也是ACTA中最具争议的问题之一，最终被欧盟否决。令人遗憾的是，委员会在这种本应合理的协商的范围内促进这种做法。
Next steps
It is somewhat unclear what will happen to the outcomes of the public consultation. Given that next year is an election year it is rather unrealistic that they will feed directly into a legislative proposal for a new or updated EU copyright directive. At best, we hope that the current Commission will provide the next one with a clear and precise roadmap for copyright reform – which we hope will be in line with our recommendations.
但是，不管立即产生结果的可能性如何，重要的是，那些支持有意义的版权改革的利益相关者要通过提供他们的观点来让人们听到他们的声音。communa将与其他组织的广泛联盟合作，确保从所有受影响部门获得广泛反馈。作为其中的一部分，我们希望在明年年初发布一份更详细的回答指南。
