Last week COMMUNIA submitted its response to the European Commission’s public consultation on the evaluation and modernisation of the legal framework for the enforcement of intellectual property rights (IPR).
We believe that the existing Directive fails to adequately address the varying types (and by extension, impact) of activities that would technically constitute copyright infringement. This is particularly worrying in the case of online infringement, where many violations occur due to unconscious actions by internet users who are not familiar with complex copyright rules. To be justly enforced, the rules should take into account the fact that there are many forms of incidental or relatively harmless forms of infringements today. The law should weigh the seriousness and impact of these minor infringements when deciding on enforcement measures and damages.
Excessive enforcement of copyright against everyday activities must not curb creativity, freedom of expression, and innovation.
From the perspective of internet users, there is no need to revise the Directive in order to strengthen its enforcement provisions. If anything is to be changed, it should be those provisions that support a better balance between the interests of consumers and the protection of the rights of content creators. The following changes should be considered:
- Ending both civil and criminal prosecutions of citizens for non-commercial file sharing, and withdrawing from prosecuting the creators of derivative works who produce non-commercial remixes. In addition, criminal penalties for violations of intellectual property rights by individuals should be minimized.
- Introducing mechanisms for safeguarding fair use and the public domain, including a ban on direct contractual restrictions on access and use of these materials, or of using digital rights management or other technical mechanisms to prevent citizens from exercising their rights under the law.
- Avoiding the situation where ISPs or hosting services are forced to filter content based on the orders imposed by civil courts attempting to enforce intellectual property rights, contrary to the provisions of Directive EC / 21/2000 (“the E-Commerce Directive”). There should not be any involvement of intermediaries other than the notice and takedown rules already in place under the E-Commerce Directive. As highlighted in our answers above, these rules already negatively impact internet users because they do not adequately provide users the ability to file counter notices. The ability of users to oppose and counter unjustified takedowns needs to be strengthened, and rights holders need to be required to take into account exceptions and limitations to copyright before filing notice and takedown requests.
We will continue to monitor the outcomes of this consultation. We’re curious to see how the Commission will take into account responses from end users who have contributed to the consultation via youcan.fixcopyright.eu.