Consultazione europea sul diritto d'autore

Obiettivo: non abbiamo le competenze né il tempo di scrivere un libriccino di cinquanta pagine in risposta come hanno fatto altri valenti colleghi, ergo useremo semplicemente il modulo [1] per i sí/no e questa pagina conterrà le sole differenze rispetto a tale modulo, per esempio testo nostro o rimandi a specifiche risposte altrui che ci sono piaciute (vedi [2] [3] [4]).

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. 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. Have you faced problems when seeking to provide online services across borders in the EU?

[.TBD.]

3. 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.

We deal mainly with online content, and Internet is global by design. Therefore, all content supported by us are released under global licenses, like the Creative Commons licenses.

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

[.TBD.]

5. 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.

6. 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.

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?

[.TBD.]

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

1. The act of "making available"

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

[.TBD.]

non ne ho idea. Copierei la risposta modello - Laurentius 14:03, 26 feb 2014 (CET)

9. 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)?

[.TBD.]

non ne ho idea. Copierei la risposta modello - Laurentius 14:03, 26 feb 2014 (CET)

2. Two rights involved in a single act of exploitation

10. 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.

3. Linking and browsing

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?

No.

Referencing a work should not be restricted by copyright in any way, because it does not involve the distribution or exploitation of content in any way; in the same way in which referencing a book in the bibliography of another book does not require any authorization.

Requiring an authorization for hyperlinks would break the web, whose foundation lies in the connections between documents.

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?

No.

Local copies are needed for viewing a work. This is a technical and unavoidable need, because, under the hood, any type of transmission or viewing technology work first making a copy of the content, and then using it (displaying it, transmitting it, elaborating it, etc); in some cases (like cache memory) the use of local copies could in theory be reduced (but never avoided), but at a great cost. Therefore, no authorization should be necessary to make copies for technical reasons.

4. Download to own digital content

13. Have you faced restrictions when trying to resell digital files that you have purchased (e.g. mp3 file, e-book)?

No opinion.

14. 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.

The possibility of reselling previously purchased contents and goods is a basic right in the non-digital world, where it has many positive outcomes:

• increasing the life of a good;
• increasing the number of people who have access to it;
• regulating the prices;
• smoothing the variability in prices and availability.

It is reasonable to assume that the same benefits would be present in the digital world. The resale of previously purchased contents should therefore be allowed.

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?

Yes.

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

We face the problem of determining the copyright status of a work all the time, working with online repositories like Wikimedia Commons and cultural institutions. Finding who is the author, when (if) he is dead, and under which term the work is distributed is often difficult and sometimes almost impossible, impairing our ability to making works available to people (either because we are not able to get some information, or because it's too expensive). A registration system would make things a lot simpler and more certain.

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

• The registration system must be designed, implemented and maintained.
• It requires an additional effort for rightholders (and additional bureaucracy).

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

Making it mandatory for copyright protection.

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?

[.TBD.]

E. Term of protection – is it appropriate?

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

[.TBD.]

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?

Yes. Citizen should have the same rights all across Europe.

This is mostly important for online contents, since Internet has no borders.

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?

Yes.

All exception should be made mandatory. In particular, in our activities we always face the problem of different national rules on Freedom of Panorama, which is the exception in Article 5 point 3(H) of the Information Society Directive.

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

Yes. An exception excluding government produced works from copyright protection should be added to the existing catalog of exceptions in all Member States. This would make those works part of the public domain and boost innovation, information and creativity. Countries/institutions that have a such an exception (most notably the USA) are widely perceived to outperform the EU in these crucial areas, enabling creative reuse by private industry, by other government entities, and by citizens.

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?

[.TBD.]

Non lo so. - Laurentius 16:19, 26 feb 2014 (CET)

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.

[.TBD.]

Verosimilmente nessuna risposta. - Laurentius 16:19, 26 feb 2014 (CET)

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

Yes. The territoriality of limitations and exceptions constitute a major problem for us, because we operate in an online environment, and thus on a global scale.

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?)

There should be no "fair compensation".

A. Access to content in libraries and archives

1. Preservation and archiving

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?

The existing exception for preservation is not implemented consistently across the EU. As a result, most EU countries do not allow the making of copies for crucial activities like format shifting and structural digitization of collections. They may also put a variety of artificial constraints on digitalization. This severely limits how an organization like ours, which aims to put all of Europe's treasures online for education and reuse by the entire world, can reliably archive and publish preserved materials.

Questa è la risposta di WMF. Mi sembra ragionevole e io non saprei che dire. "organization like ours" ha un significato diverso quando è WMI o WMF, ma penso sia comunque adatto. - Laurentius 16:25, 26 feb 2014 (CET)

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

[.TBD.]

A meno di suggerimenti lascerei in bianco. . Laurentius 16:25, 26 feb 2014 (CET)

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?

[.TBD.]

A meno di suggerimenti lascerei in bianco. . Laurentius 16:25, 26 feb 2014 (CET)

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

[.TBD.]

A meno di suggerimenti lascerei in bianco. . Laurentius 16:25, 26 feb 2014 (CET)

2. Off-premises access to library collections

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?

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

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?

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

3. E – lending

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?

38. What differences do you see in the management of physical and online collections, including providing access to your subscribers? What problems have you encountered?

39. 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?

4. Mass digitisation

40. 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?

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)?

B. Teaching

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?

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

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

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?

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

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?

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

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

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?

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

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

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?

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

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?

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

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

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?

We refer to the answers by Copyright for Creativity and Wikimedia Foundation.

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 comment.

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. We refer to the answer by Wikimedia Foundation.

However, on (a) we'll note that many of the members of this Associazione Wikimedia Italia, being contributors and co-authors of collective works such as Wikipedia, Wikimedia Commons and other Wikimedia projects, are often unable, in practice, to ensure their rights on their own works of creativity are respected: major market players and publishers almost never give them the only "remuneration" they are legally obliged to produce under the terms of free cultural works licenses such as the Creative Commons Attribution Share Alike, that is attribution to the authors and publication of derivatives under the same license. Instead, publishers such as newspapers routinely engage in plagiarism, using systematic copyfraud to spoil the "minor" authors' and citizens' copyrights, and by the means of such plunder increase the mass of works over which they claim to possess exclusive copyrights, which they then police against the same users and citizens, denying even fair use. In other words, the wrong and outdated assumptions of the current framework (which are reflected by the wording of this very question), combined with an unbalanced enforcement (see answer to question 77), have as natural consequence the systematic sequestration of the public goods by few private hands, in a new Tragedy of the [Creative] Commons.

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

We refer to the answers by Copyright for Creativity.

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?

We refer to the answers by Copyright for Creativity and Wikimedia Foundation.

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

We refer to the answers by Copyright for Creativity and Wikimedia Foundation.

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 refer to the answers by Copyright for Creativity and Wikimedia Foundation.

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. We refer to the answers by Copyright for Creativity and Wikimedia Foundation.

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 refer to the answers by Copyright for Creativity and Wikimedia Foundation.

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

Yes. We refer to the answer by Copyright for Creativity.

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?

No comment.

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.).

We refer to the answers by Copyright for Creativity and Wikimedia Foundation.

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?

We refer to the answer by Wikimedia Foundation.

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

We refer to the answers by Copyright for Creativity and Wikimedia Foundation.

V. Fair remuneration of authors and performers

72. 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?

We refer to the answers by Copyright for Creativity and Wikimedia Foundation.

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

Yes. We refer to the answers by Copyright for Creativity and Wikimedia Foundation. In addition, we offer an example of a clause for which to investigate EU-wide repeal, that is the complete surrender of copyright by an author in favour of another entity, such as a publisher: copyright is the right for authors to be financially able to enrich the society with their work (via copyright licenses granted in return of some requirements), not a physical object to be sold and resold at increasing prices. Clauses in contrast with the SPARC Author Addendum could be deemed void in EU; on the other hand, an author must be able to completely waive undesired copyrights in favour of the general public, as with the CC0 Public Domain Dedication.

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

We refer to the answer by Wikimedia Foundation.

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?

No, see also answers below and the answer to this question by the Wikimedia Foundation. Moreover, we stress that the focus on "commercial purpose" is entirely wrong if our goal is to promote knowledge and culture. The most egregious example and proof of the failure of such frameworks is the well known SIAE vs. homolaicus.com case, where a rights collection agency attempted to undermine a personal website of great benefit for the public culture, which had allegedly "commercial" portions in order to sustain its costs. Such so called "civil enforcement" activities by public, semi-private or private agents (like SIAE) is the true infringement of the principles and goals of copyright and must be stopped.

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?

We refer to the answer by the Wikimedia Foundation.

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?

No, the current framework doesn't achieve a right balance of public and private interest; the dichotomy proposed in this very question appears to miss the mark.

The current enforcement of copyright in member states is completely ineffective and harmful. Most efforts are geared towards protecting market incumbents, acting in near-monopoly, from the consumers, even when the prohibited uses produce no demonstrated harm to the copyright holders or have been linked to positive gains for the copyright holders. In contrast, minor authors of self-published cultural works and authors of massively cooperative works such as Wikipedia (who are in the millions) have no practical means to defend themselves from the constant disrespect of their copyrights perpetrated by minor and major market players (such as newspapers), even when a public license is available that makes it easy (and gratis) to respect the author's wishes and rights (moral or otherwise), such as the Creative Commons - Attribution - Share alike license.

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?

Yes. We refer to the answer to this question by Wikimedia Foundation and Copyright for Creativity.

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?

We believe that having a single copyright title is the first step, rather than the next. In a global market, any reform of copyright is bound to fail if pursued by individual states: the free movement of people required us to set up a uniform visa policy in the Schengen area; the free movement of ideas requires the same effort. All the more so because in the present time cultural works circulate across national borders in quantities unthinkable till a decade ago, requiring action even more than the (less common) circulation of people.

Because it's the first step, it must not be a long term, but also a short term project. We can start setting the direction immediately. Building upon an international copyright treaties principle such as the rule of the shorter term, and upon an ever-expanding European principle such as the highest level of protection (EU Charter of Fundamental Rights, Article 53) or the principle of prevalence of the more favourable law, an EU regulation should first of all establish (with immediate application) that an EU user or reuser of a copyright-protected work shall only be bound to the least restrictive of all EU states' laws and regulations for such a work. This will immediately eliminate any copyright market friction caused by cross-border legal uncertainties, and automatically produce a self-sustaining push towards unification of the legislation in the coming years.

We share however the concerns expressed by Copyright for Creativity.

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.

Copyright has negative interactions with other legal restrictions imposed even on public domain works, which should be as easy to disseminate as possible for the sake of the public advancement. This is true in particular for the lack of freedom of panorama (broadly construed), the database rights protection and unreasonably restrictive legislations such as those posing non-copyright restrictions on the digital reproduction of cultural heritage. An egregious example is offered by Italy with the "Codice dei beni culturali", a law which forbids citizens from donating their time and skills to the dissemination and promotion of local cultural heritage, by making even the distribution of photos illegal absent a specific authorisation, a very costly process both for bureaucratic complexity and fees which makes it unfeasible and effectively forbids initiatives such as Wiki Loves Monuments, the biggest photo competition in history, from helping the state and society promote its culture. We also refer to the recommendations submitted on this point by the Wikimedia Foundation.

More in general, unless otherwise specified, for this and all preceding questions we share and support the views expressed in response to this consultation by COMMUNIA, Copyright for creativity, Digitale Gesellschaft, EDRi, Wikimedia Austria, Wikimedia Belgium, Wikimedia Deutschland, Wikimedia Foundation, Wikimedia France, Wikimedia Nederland, Wikimedia Polska, Wikimedia Sverige, Wikimedia UK.

Moreover, Wikimedia Italia supports: beniculturaliaperti.it; Public Domain Manifesto; Berlin Declaration of Open Access, italian Open Archives Initiative, Petition for guaranteed public access to publicly-funded research results; Non pago di leggere – campagna europea contro il prestito a pagamento in biblioteca; petition "Liberalizzazione nel campo del Software per Personal Computer"; petition "Reclaim the Rule of the Shorter Term".