EESC on IPR Strategy

De La Quadrature du Net

On January 12th, 2012, the European Economic and Social Committee adopted an opinion the on the EU Commission's announced IPR strategy. The EESC criticizes key aspects of the EU's current policies in the filed of copyright and patent.

Criticism of the EU Commission IPR strategy[modifier]

1.2 The human dimension and the public interest must be built into the strategy, and the Committee believes that the proposals and analyses fail to put this point across clearly.

Criticism of the EU Commission's approach to IPR[modifier]

3.4 The Commission states that: "IPR are property rights ...". They are seen as property rights but are in fact intangible rights protecting the holders from copies and competition. They constitute exceptions to free competition and take the form of temporary monopolies protected by a deed or certificate issued by a competent state authority (patents, etc.), or recognised under government legislation (copyright and related rights).

Sanctions against users are disproportionate[modifier]

1.15 the general principle of proportionality between offences and penalties should be applied effectively; some highly intrusive and punitive national laws on illegal copying of audio-visual material, made on a small scale by individuals via internet with no commercial purpose in mind, should be revised accordingly. It is important to avoid giving the impression that laws are shaped in response to pressure brought to bear by lobbies rather than in response to a fundamental principal of criminal law.

4.5.2 The protection of works, in particular books, film and music, has been affected by modern means of digital reproduction and transmission via the internet, that can make it easy to make copies of the same quality as the original and sell them. This is illegal practice in Europe, but national legislations diverge; the Committee is in favour of the thorough harmonisation of legislation with a view to proportionality and balance of controls and penalties.

Call on the full recognition and protection of free licences[modifier]

3.7 there are movements that oppose traditional forms of protection by creating free public licences, such as the General Public Licence for software and the creative commons for the literary and artistic domains; they object to conventional protection that they consider obstructs the knowledge- and information-based society. These free licences, which represent a large share of the global market, should be recognised and protected in the same way as other licences that represent ownership rights.

Importance of exceptions and limitations to copyrights and patent[modifier]

4.6.2 The resulting confusion between temporary exceptions and ownership based on Roman law has a downside, if not for rights holders. Suspending the right to competition and making it subject to a system of authorisation by right holders in the form of licences does not amount to a genuine property right with all that entails. Limitations to protection exist for reasons of public interest (compulsory licences), the geographical nature of patents, and divergences in national legislation, not least in Europe, etc.

Criticism of the EU Commission approach to private copying[modifier]

1.5 (...) As regards the private copying levy, the Committee believes that this is unfair given that private copying is an integral part of fair use. It should certainly not apply to hard drives used by businesses in the course of their industrial and commercial activities.

4.6.7 The Committee believes that the tax levied on any form of electronic and magnetic media in order to cover the cost of private copying is based on the presumption of guilt. Instead, the Committee holds the view that private copying is a legitimate practice which enables the user to change media or hardware and which should be recognised as a right of the legal holder of the license for use under the concept of fair use.

ACTA is unbalanced, could change EU law, negatively impact fundamental rights and innovation[modifier]

3.13 In principle, ACTA should not alter the community acquis; nevertheless, its exclusive focus on increasing protection for rights holders by means of customs, police and administrative cooperation measures continues to favour a certain view of rights ownership. Other doubtless more fundamental human rights, such as the right to information, health, sufficient food, the right of farmers to select seeds and the right to culture, are not taken sufficiently into consideration, and this will impact on future European legislation geared towards the harmonisation of Member States' legislation. The individualised and exclusive, proprietary view of temporary exceptions to free competition therefore clearly has an impact on the future of the knowledge- and information-based society and the third-generation human rights included in the EU's Charter of Fundamental Rights.

4.5.3 The European law that has developed in this field [copyright law] is extremely protective of the holders of copyright and related rights. This is also the case in the United States, which goes a long away towards explaining ACTA, the "secretive" drafting process limited to only a few countries and, above all, its enforcement objectives in the face of the impossibility of having the practical procedures and obligations accepted by the WTO, given the need for unanimity and the veto of certain countries, such as China or India.

4.5.4 Meanwhile, according to the Committee, ACTA's approach is aimed at further strengthening the position of rights holders vis-à-vis the "public", certain of whose fundamental rights (privacy, freedom of information, secrecy of correspondence, presumption of innocence) are becoming increasingly undermined by laws that are heavily biased in favour of content distributors.

Criticism of "cooperation" and private copyright enforcement on the Internet[modifier]

4.5.5 "Professional" copyright pirates are perfectly capable of eluding any form of control on the flow of data on the internet, and the penalties imposed as an example on a handful of teenagers cannot conceal the fact that audio-visual producers are a decade behind in creating a business model that matches the new information and communication technologies. In order to cut down on procedural costs and settlement delays, codes of conduct have been established piecemeal, sometimes at the government's urging, which force internet access providers to supply audio-visual and music providers (a sector with a high level of concentration) with the names and addresses of alleged "copiers" of content acquired illegally on the internet. This entails a certain level of risk of error. This form of accusation may be compounded by cutting off the alleged counterfeiters' internet access. Although this may reduce the workload of overburdened courts and spare the legislator the need to act and propose official institutions to combat counterfeiting at a time of budget cuts, private practices of this type may ultimately have undesirable consequences. The same applies to laws shaped under the excessive pressure exerted by film and music distribution lobbies in various countries - generally to highly doubtful effect, and at the cost of violating the rights of consumers, who by and large are totally ignored and considered without distinction to be potential pirates.

Call for a reform to the protection of software[modifier]

Par exemple: 4.2.2 The Committee would suggest that the Commission assess the possibility of specific, extremely limited duration protection for software; Directive 91/250/EEC1 could be revised in order to significantly reduce the protection term for instance to five years, and then to require the publication of sources, in the light of the rapid pace of innovation and of the renewal of programmes by major publishers.

Among other things...