EU Copyright Consultation

This page is now a copy of Mozilla's final submission to the Public Consultation on the review of the EU copyright rules.

High Level Goals

Chris Riley writes: "My preference would be to try to keep it high-level where possible, ideally focusing on the importance of preserving innovation as a goal of copyright reform (after all, motivating invention, creation, and investment are the purposes of having IP - the natural law IP philosophy of inherent ownership is thankfully phased out these days)."

Relevant Links

• Breadth of EU Copyright Review Evident in 11th Hour Extension

I. Guidance

Respondents should ... feel free to reply to any/all of the questions. ... [A]part from the question concerning the identification of the respondent, none of the questions is obligatory. ... In your answers to the questions, you are invited to refer to the situation in EU Member States. You are also invited in particular to indicate, where relevant, what would be the impact of options you put forward in terms of costs, opportunities and revenues.

II. Rights and the functioning of the Single Market

A. Why is it not possible to access many online content services from anywhere in Europe?

1. [In particular if you are an end user/consumer:] Have you faced problems when trying to access online services in an EU Member State other than the one in which you live?

No opinion.

2. [In particular if you are a service provider:] Have you faced problems when seeking to provide online services across borders in the EU?

Yes.

One problem we have encountered is that content owners view the various countries in the EU economic region as different distribution channels, which requires content to be targeted to each country. This means that users travelling between countries or living in different countries will face difficulties in accessing and using content they have purchased or are streaming in one country to use in another, even though they are citizens of the EU. Additionally, geographic identification in order to determine the location of the user can be difficult, unreliable and could have a privacy impact on that user.

3. [In particular if you are a right holder or a collective management organisation:] How often are you asked to grant multi-territorial licences? Please indicate, if possible, the number of requests per year and provide examples indicating the Member State, the sector and the type of content concerned.

N/A.

4. If you have identified problems in the answers to any of the questions above – what would be the best way to tackle them?

We recommend exploring incentives to help content owners view the entire EU economic region as a single distribution channel.

5. [In particular if you are a right holder or a collective management organisation:] 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 (in order, for instance, to ensure that access to certain content is not possible in certain European countries)?

No Opinion.

6. [In particular if you are e.g. a broadcaster or a service provider:] 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 (in order for instance, to redirect the consumer to a different website than the one he is trying to access)?

No Opinion.

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?

No Opinion.

B. Is there a need for more clarity as regards the scope of what needs to be authorised (or not) in digital transmissions?

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

No Opinion.

9. [In particular if you are a right holder:] Could a clarification of the territorial scope of the “making available” right have an effect on the recognition of your rights (e.g. whether you are considered to be an author or not, whether you are considered to have transferred your rights or not), on your remuneration, or on the enforcement of rights (including the availability of injunctive relief)?

No Opinion.

10. [In particular if you a service provider or a right holder:] 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 Opinion.

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?

Since there is no reproduction taking place, holding that a hyperlink is copyright infringement would be far outside the original scope of generally accepted copyright doctrine and would dramatically and negatively impact growing industries in the EU, such as search engines. Rightsholders may also employ many other means of preventing others from linking to their content, such as password protecting their content.

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?

The caching required to view a web page is an automatic act with no agency and should therefore not be a reproduction of a work or other subject matter protected under copyright. However, whether a view of a web page or temporary cache of any kind is held to be a reproduction, temporary reproductions should not be subject to the authorization of a rightsholder because they are a part of the basic architecture of many computer and server systems and holding such automated functions to be subject to authorization would greatly chill innovation in one of the growing sectors of the EU economic region.

13. [In particular if you are an end user/consumer:] Have you faced restrictions when trying to resell digital files that you have purchased (e.g. mp3 file, e-book)?

No Opinion.

14. [In particular if you are a right holder or a service provider:] 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.

Mozilla is a rightsholder of software as well as content that are distributed worldwide. Most of our intellectual property is licensed under open source or other permissive licenses. The right to resell content would not necessarily affect our licensing scheme except if such regime violated the rights and obligations involved in receiving and redistributing openly licensed software and content. We would welcome proposals regarding the resale of content.

C. Registration of works and other subject matter – is it a good idea?

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

No Opinion.

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

N/A.

17. What would be the possible disadvantages of such a system?

N/A.

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

N/A.

D. How to improve the use and interoperability of identifiers

19. What should be the role of the EU in promoting the adoption of identifiers in the content sector, and in promoting the development and interoperability of rights ownership and permissions databases?

N/A.

E. Term of protection – is it appropriate?

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

We believe copyright terms could be shorter for software, while still incenting innovation and providing appropriate compensation to copyright owners. Because all software development heavily relies on reuse and building on prior versions, there is no increase to the pace of innovation achieved through long copyright terms. Additionally, long copyright terms generally benefit entrenched parties and cause inefficient behaviors that can hamper the pace of innovation. Finally, software takes fewer resources to create and maintain than physical goods and other content, and copyright owners can recoup costs much more quickly, making the justification for a long copyright term more tenuous. We do not have a concrete proposal for a shorter term, however, given the pace of innovation in this area, a term of 5-10 years may be reasonable.

III. Limitations and exceptions in the Single Market

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?

No Opinion.

23. Should any new limitations and exceptions be added to or removed from the existing catalogue? Please explain by referring to specific cases.

N/A

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?

It is very hard for specific legislation to keep up with the pace of technical innovation. Generally we would be in favor of enlarging and generalizing exceptions to make it more likely that the next great innovation will not be stifled and will promote investment in the software and online services markets in the EU economic region.

25. If yes, what would be the best approach to provide for flexibility? (e.g. interpretation by national courts and the ECJ, periodic revisions of the directives, interpretations by the Commission, built-in flexibility, e.g. in the form of a fair-use or fair dealing provision / open norm, etc.)? Please explain indicating what would be the relative advantages and disadvantages of such an approach as well as its possible effects on the functioning of the Internal Market.

N/A.

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

No Opinion.

27. In the event that limitations and exceptions established at national level were to have cross-border effect, how should the question of “fair compensation” be addressed, when such compensation is part of the exception? (e.g. who pays whom, where?)

N/A.

A. Access to content in libraries and archives

28. (a) [In particular if you are an institutional user:] Have you experienced specific problems when trying to use an exception to preserve and archive specific works or other subject matter in your collection? (b) [In particular if you are a right holder:] Have you experienced problems with the use by libraries, educational establishments, museum or archives of the preservation exception?

No Opinion.

29. If there are problems, how would they best be solved?

N/A.

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?

N/A.

31. If your view is that a different solution is needed, what would it be?

N/A.

32. (a) [In particular if you are an institutional user:] Have you experienced specific problems when trying to negotiate agreements with rights holders that enable you to provide remote access, including across borders, to your collections (or parts thereof) for purposes of research and private study? (b) [In particular if you are an end user/consumer:] Have you experienced specific problems when trying to consult, including across borders, works and other subject-matter held in the collections of institutions such as universities and national libraries when you are not on the premises of the institutions in question? (c) [In particular if you are a right holder:] Have you negotiated agreements with institutional users that enable those institutions to provide remote access, including across borders, to the works or other subject-matter in their collections, for purposes of research and private study?

N/A.

33. If there are problems, how would they best be solved?

N/A.

34. 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?

N/A.

35. If your view is that a different solution is needed, what would it be?

N/A.

36. (a) [In particular if you are a library:] Have you experienced specific problems when trying to negotiate agreements to enable the electronic lending (e-lending), including across borders, of books or other materials held in your collection? (b) [In particular if you are an end user/consumer:] Have you experienced specific problems when trying to borrow books or other materials electronically (e-lending), including across borders, from institutions such as public libraries? (c) [In particular if you are a right holder:] Have you negotiated agreements with libraries to enable them to lend books or other materials electronically, including across borders?

37. If there are problems, how would they best be solved?

N/A.

38. [In particular if you are an institutional user:] What differences do you see in the management of physical and online collections, including providing access to your subscribers? What problems have you encountered?

N/A.

39. [In particular if you are a right holder:] What difference do you see between libraries’ traditional activities such as on-premises consultation or public lending and activities such as off-premises (online, at a distance) consultation and e-lending? What problems have you encountered?

No Opinion.

40. [In particular if you are an institutional user, engaging or wanting to engage in mass digitisation projects, a right holder, a collective management organisation:] 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.

B. Teaching

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. (a) [In particular if you are an end user/consumer or an institutional user:] Have you experienced specific problems when trying to use works or other subject-matter for illustration for teaching, including across borders? (b) [In particular if you are a right holder:] 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 Opinion.

43. If there are problems, how would they best be solved?

N/A.

44. What mechanisms exist in the market place to facilitate the use of content for illustration for teaching purposes? How successful are they?

N/A.

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?

N/A.

46. If your view is that a different solution is needed, what would it be?

N/A.

C. Research

47. (a) [In particular if you are an end user/consumer or an institutional user:] Have you experienced specific problems when trying to use works or other subject matter in the context of research projects/activities, including across borders? (b) [In particular if you are a right holder:] Have you experienced specific problems resulting from the way in which works or other subject-matter are used in the context of research projects/activities, including across borders?

N/A.

48. If there are problems, how would they best be solved?

N/A.

49. What mechanisms exist in the Member States to facilitate the use of content for research purposes? How successful are they?

N/A.

D. Disabilities

50. (a) [In particular if you are a person with a disability or an organisation representing persons with disabilities:] Have you experienced problems with accessibility to content, including across borders, arising from Member States’ implementation of this exception? (b) [In particular if you are an organisation providing services for persons with disabilities:] Have you experienced problems when distributing/communicating works published in special formats across the EU? (c) [In particular if you are a right holder:] Have you experienced specific problems resulting from the application of limitations or exceptions allowing for the distribution/communication of works published in special formats, including across borders?

No Opinion.

51. If there are problems, what could be done to improve accessibility?

N/A.

52. What mechanisms exist in the market place to facilitate accessibility to content? How successful are they?

N/A.

E. Text and data mining

53. (a) [In particular if you are an end user/consumer or an institutional user:] Have you experienced obstacles, linked to copyright, when trying to use text or data mining methods, including across borders? (b) [In particular if you are a service provider:] Have you experienced obstacles, linked to copyright, when providing services based on text or data mining methods, including across borders? (c) [In particular if you are a right holder:] Have you experienced specific problems resulting from the use of text and data mining in relation to copyright protected content, including across borders?

No Opinion.

54. If there are problems, how would they best be solved?

N/A.

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?

N/A.

56. If your view is that a different solution is needed, what would it be?

N/A.

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

N/A.

F. User-generated content

58. (a) [In particular if you are an end user/consumer:] 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? (b) [In particular if you are a service provider:] Have you experienced problems when users publish/disseminate new content based on the pre-existing works or other subject-matter through your service, including across borders? (c) [In particular if you are a right holder:] Have you experienced problems resulting from the way the users are using pre-existing works or other subject-matter to disseminate new content on the Internet, including across borders?

No Opinion.

59. (a) [In particular if you are an end user/consumer or a right holder:] Have you experienced problems when trying to ensure that the work you have created (on the basis of pre-existing works) is properly identified for online use? Are proprietary systems sufficient in this context? (b) [In particular if you are a service provider:] Do you provide possibilities for users that are publishing/disseminating the works they have created (on the basis of pre-existing works) through your service to properly identify these works for online use?

No Opinion.

60. (a) [In particular if you are an end user/consumer or a right holder):] Have you experienced problems when trying to be remunerated for the use of the work you have created (on the basis of pre-existing works)? (b) [In particular if you are a service provider:] Do you provide remuneration schemes for users publishing/disseminating the works they have created (on the basis of pre-existing works) through your service?

No Opinion.

61. If there are problems, how would they best be solved?

N/A.

62. 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?

N/A.

63. If your view is that a different solution is needed, what would it be?

N/A.

IV. Private copying and reprography

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?

Generally, we believe that users should have the right to enjoy a purchased work in whatever form the user would like and should not have to pay additional fees to make copies of such work for backup, storage, format or time-shifting purposes.

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 Opinion.

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?

N/A.

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

No Opinion.

68. Have you experienced a situation where a cross-border transaction resulted in undue levy payments, or duplicate payments of the same levy, or other obstacles to the free movement of goods or services?

N/A.

69. What percentage of products subject to a levy is sold to persons other than natural persons for purposes clearly unrelated to private copying? Do any of those transactions result in undue payments? Please explain in detail the example you provide (type of products, type of transaction, stakeholders, etc.).

N/A.

70. Where such undue payments arise, what percentage of trade do they affect? To what extent could a priori exemptions and/or ex post reimbursement schemes existing in some Member States help to remedy the situation?

N/A

71. If you have identified specific problems with the current functioning of the levy system, how would these problems best be solved?

N/A

V. Fair remuneration of authors and performers

72. [In particular if you are an author/performer:] What is the best mechanism (or combination of mechanisms) to ensure that you receive an adequate remuneration for the exploitation of your works and performances?

N/A.

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

No Opinion.

74. If you consider that the current rules are not effective, what would you suggest to address the shortcomings you identify?

N/A.

VI. Respect for rights

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

We believe that a copyright system needs to be efficient, transparent and just in balancing the rights of content owners, users and innovators.

76. 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?

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?

N/A

VII. A single EU Copyright Title

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?

N/A

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?

N/A

VIII. Other issues

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.

No Opinion.