EU Copyright Consultation

The purpose of this page is to prepare the Mozilla response to the Public Consultation on the review of the EU copyright rules. The deadline for submission is 5th March 2014. The questions below are extracted from the consultation document at the above link, which you should read the relevant sections of before participating. (Note that the ODT version appears to have broken section numbering - the PDF version is probably a better choice for reading.)

We appreciate input on the text from all sectors of the Mozilla community - please discuss this in the Mozilla Digital Freedom forum. Feel free to add clearly-marked notes and suggestions here, but please do not edit other people's text if you aren't the collating editor.

Also, note that this response is a Mozilla response, not an individual response. While individual Mozillian EU citizens may have strong views on many of these topics, we want to restrict our answers to those which are particularly relevant to the Mozilla mission, on which there is a consensus of opinion with Mozilla, and about which Mozilla has expertise to share.

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?

Ask Marketplace team?

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?

N/A unless we answer Q2 (Marketplace team).

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?

Absolutely not.

The World Wide Web is a system whose value to users increases in proportion to the number of links within it. This is one reason that search engines use links to content as a measure of importance and popularity. Therefore, the functioning of the web as we know it depends absolutely on a person not having to get permission to link to content put up by another person. Abandoning this principle would make search engines, to take one example, impossible, because a search results page is simply a list of links to content, and the search engine companies cannot possibly determine the rightholder and ask their permission for every page on the Internet.

Furthermore, rightsholders who require a higher level of protection for their work even when posted online may use a variety of low-effort mechanisms such as password protection.

We welcome the decision of the European Court of Justice in this regard.

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?

Absolutely not. Such a decision would have grave ramifications for basic functionality of computer and Internet systems. It would either be unworkable and impossible to enforce from the get-go, or would require re-architecting of the past 50+ years of computer systems.

It is also not necessary nor appropriate to achieve the historical balance of copyright law. Copyright law was designed at a time when no copies of a work were made in order to view or experience the copyrighted work; however, technology has made the creation of such temporary reproductions a necessity. Maintaining the intentions of copyright law requires preventing overreaching of copyright restrictions into private life and the unknowing criminalization of users. If rightholder authorization were required for all such copies, anyone could potentially become a lawbreaker simply by clicking a link - an event which happens on the web a billion times a day.

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.

Ask Marketplace team?

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?

They should be shorter. In particular, they should be much shorter for software.

We start with the premise that the purpose of copyright is to promote new creation by giving to their authors an exclusive right, but that this right is necessary time-limited because the public as a whole benefits from the public domain and the free sharing and reproduction of works. Given this premise, copyright policy has failed software. All software has a much shorter life than the standard copyright term. There is already more obsolete software out there than anyone can enumerate, and software itself is barely even 50 years old, so none is in the public domain. Any which did fall into the public domain after 50 or 70 years would be useful to no-one, as it would have been written for systems long obsolete.

We make two proposals to make copyright more effective for software.

Proprietary software (that is, software for which the source code is not immediately available for reuse anyway) should not be eligible for copyright unless the source code becomes freely available to the public when the copyright term expires. This requirement is by analogy with other works. Unlike a book, which can be read and copied by anyone at any stage before or after its copyright expires, software is often distributed as binary code which is intelligible to computers but very hard for humans to understand. Therefore, in order for software to properly fall into the public domain at the end of the copyright term, the source code (the human-readable form) needs to be made available at that time. An escrow system would be necessary for this.

The term of software copyright should be much smaller, and fixed. We propose 14 years as the most appropriate length. This would mean that, for example, Windows XP would enter the public domain in August 2015, which is a year after Microsoft ceases to support it (and so presumably no longer considers it commercially viable). Members of the public who wish to continue to run Windows XP therefore have an interest in the source code being available so technically-capable companies can support them.

This minimum term would not be possible straight away, but we could begin by reducing it to the minimum allowed by the Berne Convention - 50 years - and work from there.

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.

We do not have proposals for the removal or addition of specific limitations or exceptions, or to flexibility in the framework for limitations and exceptions, but we would make the general point that such limitations and exceptions are often the source of large amounts of creativity and the genesis of new and innovative business models. We also note that specific legislation cannot hope to keep up with the pace of technical innovation. Therefore, we would be generally be in favour of enlarging and generalizing exceptions to make it more likely that the next great innovation will not be stifled.

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?

See previous answer

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?

Ask Marco or the a11y team?

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?

Yes.

We should clarify it according the following principle: when you purchase a copy of a work, you have a right to enjoy that work in whatever form you would like, and should not have to pay to make additional copies 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.

Private copying levies are inherently unfair, as a) they are paid whether the media is used for copying copyrighted works or not, and b) the user does not, by paying the levy, get anything in return (e.g. his copying being made legal). In regard to the first of those points, we note that someone who makes a CD of Firefox and other open source software for their friend is paying such a levy, with the money being distributed among people who have had nothing to do with the creation of the content burned on that CD. We feel that is not just. The correct fix is not "include software companies as recipients of the levy", it is to abolish the levy.

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?

We note in passing that neither of the two "hands" of this question concerns the rights of the user who purchased the content.

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?

Such levies should be abolished altogether, as being inherently unjust.

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?

If "more efficient" means "less bureaucratic", yes. If "more efficient" means "eliminating some of the rights of the accused", no.

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?

Mozilla believes that the flourishing of the Internet requires that ISPs and other network intermediaries be given "common carrier" status. Just as a country's Post Office is not responsible for illegal content posted through it, ISPs should not be responsible for copyright-infringing content flowing across their networks. Similarly, the use of domain registrars as a proxy to attack and silence site owners without due process of law is to be deplored.

Rightsholders who wish to defend their rights need to go after actual infringers in a manner which allows the accused to defend themselves appropriately, with due process.

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?

We believe states should be free to set their own rules, including copyright term. Harmonization across the EU would be a barrier to innovation in this space, because any change would require the consent of many more parties.

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?

No, it should not be the next step. It should be abandoned as an idea.

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.

We would like to take the opportunity to mention the difficulty Digital Rights Management (DRM) causes to us and others similarly situated. Mozilla is a technology provider who, unlike other major players in our space, isn't also the owner of a DRM system. A DRM system is more than just technology. It's also a set of relationships with content owners and, consequently permissions that allow content to flow. This means that creating a DRM system is not simply a matter of technical engineering. Many of the established DRM systems are owned by companies with whom we compete. However, if our products are not compatible with DRM-requiring sites such as video streaming services, we are at a competitive disadvantage.

In addition, Mozilla produces open source software - software anyone can download, change, improve and contribute to in a collaborative and open process. DRM systems treat the owner of the computer on which they are running as the enemy, and so are designed to be resistant to modification or inspection. Therefore, they cannot be open source, and it is very difficult for users or anyone else to see what they are doing.

So, the DRM regime supported by the European Copyright Directive tilts the playing field against technology providers that aren't also incumbent DRM system proprietors, and against technology providers whose products are Open Source.

DRM also has a democratic deficit. DRM, legally enforced, effectively allows rightsholders to invent their own copyright laws which can be wildly at variance with what standard law allows. The law may say a user can copy all or part of a work for a particular purpose (e.g. if the purpose falls under a fair use exception), but the DRM system says they cannot, and the law says they cannot break the DRM system. Hence, the permissive law is nullified and the user's rights are abrogated. The EU should not permit the will of member states as regards copyright law to be bypassed in this way.

Therefore, for all the above reasons, Mozilla would like to see the legal underpinnings of DRM rescinded and repealed.