EDRI response to EU copyright consultation

By EDRi · November 3, 2004

In answer to a consultation from the European Commission on the review of copyright law EDRI, EDRI-member FIPR and the Vereniging Open-source Nederland have argued for higher standards of user rights. The response was endorsed by twenty organisations. In stead of deleting such provisions from older directives such as 91/250 on Software, 92/100 on Rental and Lending Rights, 93/83 on Satellites and Cable, 93/98 on Terms of Protection, and 96/09 on Databases, the Commission should broaden the protection of user rights in the most recent directive, 2001/29/EC, known as EUCD.

This Directive is regarded by the EU Commission as the gold standard in the field of copyright and related rights. But this Directive is not as unproblematic as the EU Commission says, according to the response. There is a serious risk this Directive will be used to level down user rights that were granted in previous directives.

For example the Software Directive contains a back-up copy provision. Industry has been lobbying to delete this right from this directive, in stead of importing it into the EUCD. In a likewise manner, EDRI would like to see the non-waivable right to an equitable remuneration exported from the Rental Right Directive to the EUCD.

Most importantly perhaps, all the voluntary exceptions and limitations in Article 5 of the EUCD should become mandatory and further exceptions must be created to legitimise existing useful activities, such as using anti-virus software. The Software Directive must be extended so that companies seeking to build compatible products not just have the right to try to reverse-engineer interfaces, but also the right to sue platform vendors in national courts for the necessary interface data.

In their joint response EDRI, FIPR and VOSN ask for a broader review of copyright law. The Commission should examine in depth all the current conflicts with competition, employment, environmental and consumer law. According to the statement, an important failure of the current copyright regime is that many copyrighted works are not available to the public, but locked in right holders’ vaults. A possible solution for this problem is giving the creator the right to reclaim the copyright from the publisher when a work has been unavailable to the public for three years. The work should automatically become public domain after a further two years if the creator has not exercised this right.

Another issue discussed in the statement is the EUCD’s anti-circumvention provision. EDRI recommends that the abuse of a rights-management mechanism must void its legal protection, and should render copyrights protected by it unenforceable (“Abuse it and lose it”).

The response comes to the conclusion that a Digital Rights Directive is needed to define the rights of consumers, and not just of copyright owners. On a global level something similar might be achieved by a WIPO treaty on access to technology and culture. As a first concrete step EDRI proposes a Digital Preservation Directive to enable Europe’s libraries to protect our cultural heritage for the benefit of future generations.

EU Commission consultation on the review of the EU acquis communautaire in the field of copyright and related rights (19.07.2004)

EDRI/FiPR/VOSN response to the consultation (31.10.2004)

(Contribution by Andreas Dietl, EDRI EU Affairs Director)