European Commission copyright consultation/Reprography

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User-generated content European Commission copyright consultation
Private copying and reprography
Fair remuneration of authors and performers


The European Commission is considering modernizing European copyright laws. To get feedback and input on this modernization, the Commission has published a series of questions, and is looking to interested stakeholders (like our community) to answer them. This is a vital opportunity to participate in a dialogue that could have a major impact on copyright laws and the future of the free knowledge movement. More background is available from the European Commission.

We would like to prepare a draft response here, as a collaborative experiment. If we wish to respond, it will need to be finalized before the end of January 2014 (see the proposed timeline).

Welcome to the discussion! Please help by answering the questions below.

Private copying and reprography[edit]

Directive 2001/29/EC enables Member States to implement in their national legislation exceptions or limitations to the reproduction right for copies made for private use and photocopying[1]. Levies are charges imposed at national level on goods typically used for such purposes (blank media, recording equipment, photocopying machines, mobile listening devices such as mp3/mp4 players, computers, etc.) with a view to compensating rightholders for the harm they suffer when copies are made without their authorisation by certain categories of persons (i.e. natural persons making copies for their private use) or through use of certain technique (i.e. reprography). In that context, levies are important for rightholders.

With the constant developments in digital technology, the question arises as to whether the copying of files by consumers/end-users who have purchased content online - e.g. when a person has bought an MP3 file and goes on to store multiple copies of that file (in her computer, her tablet and her mobile phone) - also triggers, or should trigger, the application of private copying levies. It is argued that, in some cases, these levies may indeed be claimed by rightholders whether or not the licence fee paid by the service provider already covers copies made by the end user. This approach could potentially lead to instances of double payments whereby levies could be claimed on top of service providers’ licence fees[2][3].

There is also an on-going discussion as to the application or not of levies to certain types of cloud-based services such as personal lockers or personal video recorders.

Question 64[edit]

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[4] in the digital environment?

Yes[edit]

No[edit]

  • Your name here

No opinion[edit]

  • Your name here

Comments[edit]

Instructions: If yes or no, please explain.

  • ...

Proposed Foundation answer[edit]

Based on NaBUru38's comment, and the Free Knowledge Advocacy Group EU suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 05:46, 31 January 2014 (UTC)

Yes.
The spirit and purposes that animated the original private copying exceptions remain important and valid in the digital environment, perhaps even more so now that individuals have the potential to make so many different constructive and creative uses of such material when they are not hobbled by artificial constraints imposed by law, contracts, or technological protection measures. As a result, it must be made clear that the existing exceptions and limitations are applicable in the digital environment just as in other environments.

Question 65[edit]

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?[5]

Yes[edit]

  • Your name here

No[edit]

No opinion[edit]

  • Your name here

Comments[edit]

Instructions: If yes or no, please explain.

  • Levies should never be charged for non-commercial uses. Also, levies should never be charged massively to hardware buyers, since that affects people who don't copy digital files. --NaBUru38 (talk) 14:54, 11 January 2014 (UTC)
  • No, as lot of the content - such as Wikipedia - can serve to educational purposes. We should not support strong market players on expense of educational or cultural opportunities. --Aktron (talk) 18:13, 15 January 2014 (UTC)

Proposed Foundation answer[edit]

Based on the comments above and the Free Knowledge Advocacy Group EU suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 05:55, 31 January 2014 (UTC)

No.
This question improperly mixes two issues: licensed materials for private uses and private levies.
Since Wikimedia does not sell content, the issue of payment for private, non-commercial use does not directly impact us. However, we feel that levies are generally improper because many uses, including viewing and editing Wikipedia content, or the many uses covered by exceptions, are without cost as a matter of law or as a matter of the choices of the rights holders. As a result, it is improper to assume that all uses of the device should require payment of a fee to specifically favored industries.

Question 66[edit]

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?

Responses[edit]

[Open question]

  • Levies would restrict access to computers and internet. Levies would benefit major labels and publishers, whereas independent creators would never get any of the taxes collected. --NaBUru38 (talk) 14:55, 11 January 2014 (UTC)
  • ...

Proposed Foundation answer[edit]

Based on NaBUru38's comment and the C4C suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 05:58, 31 January 2014 (UTC)

Levies unfairly benefit a specific business model and specific assumptions about content ownership, and therefore unfairly prejudice many new business models, including volunteer-driven models like that of the Wikimedia Foundation, that do not presume direct user payments for content as part of the model.

Question 67[edit]

67) Would you see an added value in making levies visible on the invoices for products subject to levies?[6]

Yes[edit]

  • Your name here

No[edit]

  • Your name here

No opinion[edit]

  • Your name here

Comments[edit]

Instructions: If yes or no, please explain.

  • ...


Question 68[edit]

Diverging national systems levy different products and apply different tariffs. This results in obstacles to the free circulation of goods and services in the Single Market. At the same time, many Member States continue to allow the indiscriminate application of private copying levies to all transactions irrespective of the person to whom the product subject to a levy is sold (e.g. private person or business). In that context, not all Member States have ex ante exemption and/or ex post reimbursement schemes which could remedy these situations and reduce the number of undue payments[7].

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?

Yes[edit]

  • Your name here

No[edit]

  • Your name here

No opinion[edit]

  • Your name here

Comments[edit]

Instructions: If yes, please specify the type of transaction and indicate the percentage of the undue payments. Please also indicate how a priori exemption and/or ex post reimbursement schemes could help to remedy the situation. If no, please explain.

  • ...


Question 69[edit]

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.).

Responses[edit]

[Open question]

Proposed Foundation answer[edit]

Based on the C4C suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 06:07, 31 January 2014 (UTC)

The specific question asked is unanswerable. However, we can say with great certainty that the vast majority of all internet users in the EU regularly visit the sites of the Wikimedia Foundation and other websites like ours where users have legally, voluntarily, and freely shared information without intention of compensation. To presume that these users are committing a harm, and thus require them to pay a levy to the shrinking number of creators represented by the copyright industry, is clearly unsupported by the actual uses of these computers.

Question 70[edit]

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?

Responses[edit]

[Open question]

  • ...

Proposed Foundation answer[edit]

I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 06:10, 31 January 2014 (UTC)

We cannot answer the question about what percentage of trade they effect, but given the hundreds of millions of Europeans who visit our site every year, we suspect that the percentage must be large.
See question 71 for discussion of remedies.

Question 71[edit]

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

Responses[edit]

[Open question]

  • Copyright holders who wish to get money for their works should do so in a market environment, not through taxes. There are plenty of examples of such systems, from digital download services, streaming services, crowdfunding, event tickets, etc. --NaBUru38 (talk) 15:00, 11 January 2014 (UTC)
  • ...

Proposed Foundation answer[edit]

Based on NaBUru38's comment and the C4C suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 06:13, 31 January 2014 (UTC)

The levy system presumes the guilt of all users involved, which has always been questionable, and becomes more and more questionable as more and more content becomes (like Wikipedia) created by users for other users, without assumption of compensation. As a result, this system is fundamentally unfair, and the only way to resolve the problem is to abolish the levy system, replacing it with market mechanisms for content creators - both traditional ones, like the sale of products and event tickets, and new ones, like crowdfunding.


Next set of questions >>

References[edit]

  1. Article 5. 2)(a) and (b) of Directive 2001/29.
  2. Communication "Unleashing the Potential of Cloud Computing in Europe", COM(2012) 529 final.
  3. These issues were addressed in the recommendations of Mr António Vitorino resulting from the mediation on private copying and reprography levies. You can consult these recommendations on the following website: http://ec.europa.eu/internal_market/copyright/docs/levy_reform/130131_levies-vitorino-recommendations_en.pdf.
  4. Art. 5.2(a) and 5.2(b) of Directive 2001/29/EC.
  5. This issue was also addressed in the recommendations of Mr Antonio Vitorino resulting from the mediation on private copying and reprography levies
  6. This issue was also addressed in the recommendations of Mr Antonio Vitorino resulting from the mediation on private copying and reprography levies.
  7. This issue was also addressed in the recommendations of Mr Antonio Vitorino resulting from the mediation on private copying and reprography levies.