Consultazione europea sul diritto d'autore

Risposta di Wikimedia Italia alla consultazione europea sul diritto d'autore, inviata il 5 marzo 2014. PDF: File:Consultazione europea sul diritto d'autore.pdf (ZIP UE). Si veda anche la nostra precedente risposta al Libro verde su «Il diritto d'autore nell'economia della conoscenza» (in italiano).

Abbiamo risposto in inglese per praticità di coordinamento con altre organizzazioni amiche e mancanza di volontari e tempo: se sei interessato a tradurre questo documento (e collegati), per piacere contattaci o associati e fallo direttamente qui nel wiki.

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?

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

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

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

While the copyright legislation of EU states is usually so unreasonable as to make it obvious that one should preferably provide online services only outside the EU, there are some cases where e.g. the USA have the most unreasonable legislations and are poorly suited to be a base for some service. For instance, the infamous Uruguay Round Agreements Act and Copyright Term Extension Act, only partly mimicked by Directive 2011/77/EU, made an enormous wealth of works, which are public domain abroad, protected under USA law. This gives EU a competitive advantage, and Wikimedia Italia opened a wiki (biblioteca.wikimedia.it) which hosted Italian public domain works formally incompatible with the USA-hosted Wikisource. However, the service was never able to reach a sufficient critical mass because of its narrow territorial and temporal scope, and is now in the progress of being disbanded and merged to a service (wikilivres.info) hosted in the more favourable Canada territory. If EU copyright legislation had been more unified, the service could have been hosted in one EU country but offered to all EU citizens, by providing all the works which are in the public domain in one EU country (e.g. the country of first publication) but not worldwide.

Another example is the impossibility to show and see online the monuments of Italy, very broadly construed, potentially including every building or artefact more than 20 years old. This issue, while strictly speaking not caused by copyright law directly, is made worse and not helped by copyright law, which could and should empower authors to produce creative works under the so called "freedom of panorama". The problem hits on a daily basis online services such as Wikimedia Commons and its users, with tens of thousands of cases opened and dealt with by volunteers over the copyright status of photos (released under a free license by the shoot authors): millions of words and countless year-person wasted, in good part due to unclear, too diverse and anyway too restrictive legislation. However, a more prominent example was Wiki Loves Monuments, the biggest photo competition in history.

Wiki Loves Monuments started in 2010, and went European in 2011. Wikimedia Italy wanted to participate but immediately discovered a great obstacle to the project, a law called "Codice Urbani" which states, among other provisions, that to publish pictures of "cultural goods" (meaning in theory every cultural and artistical object/place) for commercial purposes it is mandatory to obtain an authorization from the local branch of the Ministry of Arts and Cultural Heritage, the "Soprintendenza". The Superintendence can require the payment of a fee; moreover, the authorization granted will be for the requester only (usually a publishing company) and only for a given publication. Personal use and use for study and research are allowed without a request for authorization. You certainly noticed that Codice Urbani is problematic for a smooth realization of Wiki Loves Monuments. In fact, I can make pictures of monuments and I can give up my copyright allowing others to copy my image without requiring my explicit permission; but the Codice Urbani says that if I want to publish those picture a fee can be requested to me, so anyway a third party can't make profit out of my picture without asking in advance an authorization to the Soprintendenza. This issue is completely independent from any issue regarding copyright: Coliseum and the Leaning Tower fall (no pun intended) under Codice Urbani. So we were in difficulty in organizing a photocampaign in Italy and asking people to (potentially) breach the Italian law, since the unclear points were many.

Thus, we had two strategies: one top-down, changing the law itself; the other bottom-up, that is asking the permissions to the individual institutions. Note that the bottom-up strategy meant having to deal with 8000+ different municipalities, endless cultural institutions, countless churches (every parish priest has the right for his own parish, unless it is in some special list from the Ministry). As for the top-down strategy, the Ministry consider itself unable to perform it, and we could only get (on the first year) an agreement which granted said permissions to thousands citizens through our association for some monuments under direct control of the Ministry, and encouraged us to proceed with the bottom-up strategy:

the Ministry considers particularly useful, in order to promote awareness of such goods, the production of specific items about them on wikipedia.org, in all its languages, and the publication of images on Wikimedia Commons, at the site http://commons.wikimedia.org.

In 2013, 222 municipalities and other institutions partnered with us for Wiki Loves Monuments, but that's clearly just a drop in the ocean, apart from being completely impossible for any entity not based in Italy to follow such a steep route. This, too, is clearly a matter that should be addressed at EU level.

A wider market, combining all the individual strengths of each member state, would form a unite robust competitive advantage over more hostile countries, which no single member state could afford. The current fragmentation instead condemns everyone to failure; EU works and culture are either unavailable or provided only by non-EU services, hence their only fate is a declining relevance in the globe.

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?

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

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?

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

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?

No. We refer you to the answer by Copyright for Creativity.

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)?

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

We add that our members, all the Wikipedia/Wikimedia projects editors and all the citizens we want to involve in our activities (such as Wiki Loves Monuments) are greatly hindered and endangered by the uncertain territorial scope of legislation. A Swiss of Italian language, who in Italy takes a photo of a work by a foreigner and uploads it at home to an Italian language wiki hosted in USA via a server in Amsterdam, is a very easy and common way to involve in some way 3 EU countries, one non-EU European country and one non-European country (plus the country of those who visit the wiki, if not Italians)... just to share a photo. Reducing the number of legislations that need to be taken into account by a user, and by a website in its guidelines for users, would greatly benefit the effectiveness of the framework. The current EU situation is so complex that most economic and cultural activities are only tempted to avoid any activity in EU and/or in in the EU countries with worst and most complex legislations (like Italy); or to work around the legislation by completely ignoring it, with activities and services run and hosted outside EU even for EU-centric scopes. A lot of work is needed to make EU a competitive ad attractive home to cultural, educational and informational jobs.

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?

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

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

Requiring an authorization for hyperlinks would amke the world wide web illegal, because its 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. We refer you to the answers by Copyright for Creativity and La Quadrature du Net.

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)?

Yes, our members often find that legitimate and legal redistribution of e.g. public domain works is restricted by technical means. We refer you to the answer by Copyright for Creativity and to answer 40 for details.

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 are the authors, when (if) they died, and under which term the work is distributed is often difficult and practically 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.

We refer you to the answers by COMMUNIA and Copyright for Creativity for more details.

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

We refer you to the answer by Copyright for Creativity.

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

We refer you to the answer by Copyright for Creativity.

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?

We refer you to the answer by Copyright for Creativity.

E. Term of protection – is it appropriate?

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

No. They must be greatly reduced, gradually, to 15-25 years. The extensive reasoning for this is well known, we refer to the answers on this point by COMMUNIA, Copyright for Creativity and La Quadrature du Net.

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 across the whole Europe and particularly so for online activities, since Internet has no borders; see also answers 2 and 80 on the freedom of panorama and related. We refer you to the answers by COMMUNIA, Copyright for Creativity and Wikimedia Foundation for more details.

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 current exception should be made mandatory. It's particularly important to make mandatory the exceptions 5(2)(c), 5(3)(h), 5(3)(n).

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. Countless years-person have been spent by our members to ascertain the copyright status of individual photos of old and recent buildings etc. in relation to the unwieldy mass of diverse legislations, a time which could have more fruitfully been invested in curating and expanding the public knowledge about said buildings, to the benefit of the general public, of tourism and of most copyright holders.

The exceptions for orphan works are always insufficient and particularly so for works which are 70 or even 100 years old but can't safely be assumed to be in the public domain. The difference between the age below which works are normally distributed in the market (few decades) and the age when they can safely be assumed to be in the public domain (150-160 years) creates a period of over a century of cultural history which is effectively canceled from public memory and consumption.

For instance, Wikimedia Italia volunteers have wanted, for a few years now, to enrich the freely licensed online dictionary it.wiktionary.org by importing some old, out of commerce Italian vocabulary. The need to pick a safely public domain dictionary restricted us to a single pre-1923 option, which – apart from lexical issues – was available in a single usable copy in the whole country and has a type very hostile to OCR and transcription. As a result, work has progressed slowly; we've not yet had substantial concrete results and may never reach them. No current orphan works exception would be valid worldwide (or even EU-wide) and sufficiently broad to allow incorporation of a work into a public domain or freely licensed work.

We refer you to the answers by COMMUNIA and Copyright for Creativity for more details.

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

Yes. Exceptions 5(3)(a), 5(3)(d), 5(3)(k) and 5(3)(n) should be broadened. An exception excluding government produced works from copyright protection should be added to the existing catalog of exceptions in all member states; alternatively, they could have a copyright protection similar to what granted by a free license like the Creative Commons Attribution (CC-BY), also used for Open Access research. This would make those works part of the public knowledge and boost innovation, information and creativity. Countries and institutions that have a such an exception (most notably the USA) enable creative reuse by private industry, by other government entities, and by citizens and are therefore widely perceived to outperform the EU in their crucial areas of activity. Obvious examples are NASA images and medical research. Current copyright protection condemns EU culture to marginalisation.

We refer you to the answers by Copyright for Creativity and COMMUNIA for more details.

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?

Yes. We refer you to the answers by COMMUNIA, La Quadrature du Net and Copyright for Creativity for more details.

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.

We refer you to the answers by COMMUNIA and Copyright for Creativity for more details.

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.

We refer you to the answers by COMMUNIA and Copyright for Creativity for more details.

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?)

The so called "fair compensation" should be abolished.

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?

Yes. We refer you to the answers by Copyright for Creativity, COMMUNIA and Wikimedia Foundation.

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

We refer you to the answers by Copyright for Creativity and COMMUNIA.

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?

We refer you to the answers by Copyright for Creativity and COMMUNIA.

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

No comment.

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?

We refer you to the answers by Copyright for Creativity, COMMUNIA and Wikimedia Foundation. Interlibrary loan and e-loan should be allowed and encouraged EU-wide: this would allow to leverage the existing collections and infrastructures, not only public but also private (e.g. the Internet Archive e-loans, of which EU significantly lacks an equivalent), expanding the reach of EU culture and market. Wikimedia Italia members and Wikipedia/Wikimedia projects editors in general would greatly benefit from such an increased access to reliable/verifiable sources and would voluntarily help share this benefit with the whole population.

As an example, all EU institutions of the European Higher Education Area should be encouraged to continue on the path shown by DART for the research theses. Most institutions already have a duty to preserve Bachelor and Master theses of all their students forever; if they were allowed and forced to do so in open online archives, under free culture open licenses, what's currently only a cost with no consumers and no market would become a fruitful service. A cornucopia of free knowledge would trickle down to the whole world wide web: expand the impact of European culture; increase the international visibility and attractiveness of EU Higher Education; facilitate the work of those, like Wikipedia/Wikimedia projects editors (among which our members), who provide daylong lifetime online education and information to hundreds millions EU citizens, thereby offering a more fertile ground for the success of education programs. Some of our members, who wanted to publish their theses under a free license on Wikisource or institutional archives, also faced unreasonable friction.

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

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

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?

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

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

It's not our view, see answer before.

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?

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

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

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

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?

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

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?

No: the MoU has had no concrete effect that we were able to notice on our and our users' ability to access culture and information.

We are especially concerned in how digitisations are conducted in frequent cases, that is in ways that attempt to restore private possession/copyright of works rather than public access to them, by claiming new copyrights or related rights on clearly public domain works. Mass digitisation can't be a way to make public collections (of public domain works) by libraries and other institutions into private collections. Consistent with the Europeana Public Domain Charter, such attempts should be repealed EU-wide and any agreement with private entities should be published online.

As an example close to us, according to an agreement with the Italian Ministry of Culture, Google will scan 165–330 million pages from public domain books published prior to 1873 and available in the two central national libraries of Rome and Florence. These works will be downloadable gratis (but not freely) from Google's websites and the Ministry will be free to publish them on its own websites as long as it restricts download, but for 15 years Google will hold a monopoly on the commercial usage. Starting from 2012, the agreement will last at least six years, with automatic renewal. The text of the agreement has been "leaked" only recently; some official information is available in the Google Books project announcement. The first 30 thousands books have been uploaded in November 2013, but are not available on any publicly owned or open-format website (as Wikimedia Commons, Internet Archive or an enhanced Europeana would be); Google claims copyrights and other restrictions on books downloaded from its websites, even though the agreement doesn't contain any such clause affecting third parties (it would be impossible). Google scans for free, but the Ministry pays 51 contractors for the cataloguing etc. of the books. The state is effectively paying for the enhancement of an exclusively private property.

Still, the public benefit reached by such an initiative required a disproportionate effort, so that not only all works less than 140 years old were excluded, but the number of involved books was halved compared to the initial estimates.

We refer you to the answers by COMMUNIA and Copyright for Creativity for additional details.

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)?

Yes. We refer you to the answers by Copyright for Creativity and COMMUNIA.

In addition, we stress once again that a substantial decrease of the average time required for works to return to the public domain is the only way to thoroughly and efficiently address the problem of mass digitisation, like many others, and to empower users, authors and producers of free cultural works and other freely licensed/gratis works and services to benefit from them and enrich the public culture in consequence. Any other solution needs to consider that the friction and marginal costs required to ensure a work is freely reusable need to be minimal, and the cost in case of error null, otherwise all works are de facto "protected" and locked for centuries after their publication. A work which is in the public domain, but can't be easily proved to be, or which falls in a mere copyright exception/limitation/permission that however broad only applies to specific groups or consumers, or can be revoked by subsequent events, is de facto just impossible to reuse, include and distribute in any freely licensed or public domain work (like Wikipedia, Wikimedia Commons or Wikisource), for the legal and financial risks of a mistake and for the uncertain copyright status that a mixed work would then have.

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?

Yes. We refer you to the answers by Copyright for Creativity, COMMUNIA and Wikimedia Foundation.

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

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

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

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

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?

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

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

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

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?

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

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

We refer you to the answers by COMMUNIA, Copyright for Creativity and Wikimedia Foundation, with a particular stress on an OA gold mandate, abolishment of sui generis database rights and of unfair publishing agreements (see also 73).

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

We refer you to the answers by COMMUNIA and Copyright for Creativity.

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?

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

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

We refer you to the answer by Copyright for Creativity.

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

We refer you to the answer by Copyright for Creativity.

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?

Yes to all three. We refer you to the answers by Copyright for Creativity and Wikimedia Foundation.

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

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

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?

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

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

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

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

We refer you to the answers by Copyright for Creativity. The highest level of protection for privacy must be provided in EU, but other than that all obstacles that seek to impose copyright-like restrictions on non-creative, copyright-ineligible products must be repealed.

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?

Yes to all of them, see answer 2. We refer you to the answers by Copyright for Creativity and Wikimedia Foundation for additional details.

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 you 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 you 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 you 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 you 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 you 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 you 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 you 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 you 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. We didn't, as an association, but only because we didn't even start, nor try to have any cross-border transaction, due to other obstacles: see answer 2. We don't know about our members.

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 you 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 you 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 you 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 you to the answers by COMMUNIA, 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 you 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 you 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 you 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 you 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.

Yes. 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 you to answer 2 and to the recommendations submitted on this point by the Wikimedia Foundation.

Wikimedia Italia members constantly face the disconnect between reality and copyright law (and neighbouring rights), when we explain laws to citizens, and often even to the public officials formally tasked with enacting them. It's hard, for the broad majority of the population, to believe that laws are as they are and that copyright should affect them, especially in normal daily activities. It's therefore very hard to explain and promote tools to produce, use and share cultural works in a legal and more sensible manner, such as the Creative Commons licenses, even though they were adopted by millions users for their work just on Wikipedia and the other Wikimedia projects. For this reason, we believe that a great deal of work, way more than the questions above allowed us to express, will need to be put in making copyright laws more compatible with reality and the goals that citizens consider acceptable for such frameworks. We therefore in particular agree with La Quadrature du Net in stating that the legalisation of non-commercial online sharing between individuals must be the first adjustment of European copyright rules, as explained in their response.

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".