Fundamental Cultural Rights Must be at the Heart of Copyright Reform in Europe!

Paris, 23 December 2013 — For the third time in as many years the European Commission has launched a public consultation on copyright in the European internal market. Despite the unambiguous signal sent by civil society and Members of the European Parliament through the rejection of the ACTA treaty in 2012, the Commission keeps ignoring the primary need to place the fundamental cultural rights of individuals at the heart of copyright reform. La Quadrature du Net calls on all citizens and organisations to respond to this public consultation in order to scrutinise the current approach and to push proposals that are in favour of a positive reform of copyright adapting it to the digital environment.

[UPDATE: Advices of La Quadrature to prepare your response are online here]

Divorced from expectations of their citizens, the main objective of the European Commission in this consultation remains “whether further measures […] need to be taken 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”. Furthermore, the Commission places this consultation within the same process as Licences for Europe which was marked by a failure last November. This public consultation continues to propose simple contractual solutions to address the digital environment whereas a revision of the basic principles of copyright law enshrined in the 2001/29 directive is today more than ever in order.

Fundamental cultural rights ignored

The European Commission addresses a large number of questions in this public consultation, but a most important question is swept under the carpet: The recognition of each individual’s cultural rights. For example, no questions are raised over the use of DRMs (Digital Rights Management). These "digital handcuffs" have, since their establishment in 2001, restricted the rights of individuals over cultural content acquired by them.

More importantly, the European Commission fails to address the question of non-commercial online sharing of copyrighted material between individuals even though this represents one of the most pressing issues that any process to adapt copyright to the digital environment must faced with today.

These questions are at the heart of the programme of positive copyright reform proposed by La Quadrature du Net. The last section of the public consultation entitled “Other issues”, allows answers to be submitted on questions that should have been the Commission's main preoccupation!

Some dangerous directions that need to be countered

Moreover, several aspects of the public consultation could seriously undermine values allowing the functionme the principles and values on which the Internet is built. An example can be found in the Commission’s questions: “Should the provision of a hyperlink leading to a work or other subject matter protected under copyright […] be subject to the authorisation of the rightholder?” and “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 […] be subject to the authorisation of the rightholder?”. Limiting the freedom to link to or to consult a website – already attacked in Germany through the "link tax" or "Google tax" earlier this year and in the United Kingdom – would represent a major regression.

But the most dangerous paragraphs in the public consultation are to be found in section VI, “Respect for rights”. The Commission asks whether “the current legal framework [is] 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” and “If not, what measures would be useful to foster the cooperation of intermediaries?". The desire to involve and make responsible technical intermediaries, which was also at the heart of SOPA and ACTA, can be clearly seen here.

On all these points, La Quadrature calls on citizens and citizen organisations to express their disagreement with these regressive and repressive measures!

Advocating for positive reform

However, the Commission also considers several issues that represent opportunities for a positive reform of copyright in Europe. The Commission asks whether the term of protection should be reduced and considers the idea of a system of registration. Both measures would reinforce the public domain in Europe. Moreover, the Commission asks whether limitations and exceptions to copyright should be further harmonised across countries, especially for the benefit of educational uses, research, of cultural institutions, persons with disabilities, and for innovation such as data mining or user-generated content (remix, mashup).

On all these points, it is essential that civil society, individuals and public and private institutions demand a greater flexibility in the European legislative framework.

The response by La Quadature du Net will be based on the Elements for the reform of copyright and related cultural policies. It is unlikely that the current Commission will be able to start the reform process effectively due to approaching elections. It is however important that the new Commission receives from day one a strong signal in favour of a positive reform of the 2001 directive and this consultation provides the opportunity to provide it!

“The European Union can no longer prevent genuine copyright reform that takes into account the fundamental cultural rights of individuals while putting an end to the repressive spiral of the last few years”, concludes Philippe Aigrain, cofounder of La Quadrature du Net.

”Without an important mobilisation by civil society this process set in motion by the Commission may lead to a regression. But all across Europe citizen organisations are suggesting positive proposals and they must now make their voices heard”, concludes Lionel Maurel, cofounder of the association La Quadrature du Net.