Severine Dusollier is a professor at the University of Namur, and director of the Research Centre in IT Law, CRID. Last week she was in the European Parliament and presented her report The relations between copyright law and consumers’ rights from a European perspective to the parliament’s Working Group on Copyright.
It is a very good report, that highlights how the expansion of copyright law in the last two decades has weakened the interests of consumers, and has created new areas of legal uncertainty that affect ordinary consumers.
The report analyses the current relations between copyright law and consumers’ rights in the European Union, in particular whether consumers’ interests are taken into account by EU and Member States copyright legislation. It also proposes recommendations to better integrate consumers’ concerns in future revision of copyright law at EU level.
There are of course areas where I would want to go further than Prof. Dusollier proposes in her report, but apart from that, I essentially agree with what she writes.
I copy the entire executive summary from the report here:
Consumers are normally not concerned by copyright. Indeed, copyright is about exploitation of works, i.e. making available the works to a potential public, through direct communication or distribution of copies. Conversely, the end-use of a work, its acquisition and consumption (its reading, viewing or playing) has traditionally not been covered by copyright control and enforcement.
Until recently, consumers’ interests were thus equal to that of the general public, save for the private copy, that was the only copyright exception tailored to their needs. Their concerns aimed at ensuring a balanced copyright regime that could secure access to knowledge and culture.
The digital evolution has however brought the consumer within the copyright realm. The main reason thereof is the extension of the reproduction right over temporary acts of copying that potentially covers any use of a work in a digital format. Contrary to over-thecounter sales, the provision of digital content on-line is generally made under end-user licensing agreements that define strictly what the consumer can do with its acquisition. The end-user being increasingly governed by copyright rules and licensing contracts, European copyright framework had to cater to the needs and expectations of consumers.
Chapter 1 – The consumer as a member of the public
As a member of the public, consumers have a strong interest in an effective and limited copyright protection, ensuring the access to a vast range of digital content and guaranteeing their fundamental rights to expression and access to information and culture. A first obstacle in the provision of digital content to consumers has been recently put forward by scholarship and the European Commission: the territorial application of copyright appears to hamper the development of cross-border provision of digital services to the frustration of consumers. The lack of harmonisation of copyright regime in the European Union, and particularly of its exceptions, can also be explained by the territoriality governing copyright. Incomplete harmonisation makes unequal he European consumers confronted to some uses of copyrighted works but also prevents some valuable services (e.g. distance learning) from developing across the borders.
This would add to the increasing expectation of consumers for an extensive access to information, culture and content, perceived as a basic right in the digital information society. Though the right of access to information can certainly not be claimed as such to get a free access to copyright works, it justifies to achieve a balance, within copyright regime, between owners and users rights, between protection of creation and limitations to that protection. To the extent the digital development has induced a strengthening of the rights of copyright owners, their impact of consumers’, and more generally on public’s access to culture and knowledge should be systematically accessed and the balance restored when needed.
Copyright exceptions play a key role in that balance, particularly in the field of education, research and access to culture. The European acquis communautaire provides exceptions for libraries, museums, educational institutions, and people with disabilities to that effect. However, their transposition into national laws of the Member States is optional and has led to diverging scope and conditions. The fragmentation of copyright exceptions in the Internal market is prejudicial for the consumer who does not enjoy an equal access to culture depending on its place of residence. This is particularly worrisome for consumers with special needs who have to depend on different modalities to get an access to works adapted to their specific disabilities.
Consumers’ rights would be better accommodated by copyright exceptions whose transposition in Member States would be mandatory and uniform.
Consumers have also taken the opportunity given by digital technologies to manipulate and adapt copyrighted works to their own creation. So-called user-created content takes a major part in web 2.0. but still lacks a clear copyright regime, specially concerning the possible exemption of such derived amateur creation from copyright enforcement or, conversely, concerning a possible attenuation of copyright clearance rules. Consumers wait for some certainty in that regard.
Chapter 2 – Consumers as end-users
Digital technology gives copyright owners an increasing possibility to charge for every use of their works or to restrict and control the consumption and final use of the works by consumers. Copyright laws have been adapted somewhat to accommodate this new means of enforcement, restricting the private copy or its conditions, submitting some exceptions to the condition of a prior lawful use, or encouraging and protecting the recourse to technological means of protection. That places consumers in a weakened position and gives a renewed importance to his rights and interests to counteract such expansion of copyright control.
A primary concern of the consumer lies in the private copying. Generally recognised as an exception in most (but not all) copyright laws, the reproduction for personal use has gained some impetus in the digital environment due to the ease of its making and the unprecedented quality of the copies obtained. Private copying also occurs more frequently to enable the consumer to enjoy the digital content he acquires. Indeed, most often, the consumer literally “makes” the tangible embodiment of the work he downloads and subsequent copies might be increasingly necessary to allow for using the work in different platforms, applications and formats, as each digital use might technically require a further copy. This has changed the scope and justification of the private copy. One consequence of that shift might be that, when compensating the copyright owners for the harm suffered from the making of private copying (the levies system), such copies, required by the digital format and whose harm is minimal or even non-existent, should not imply compensation. As such device-shifting or format-shifting are fundamental expectations of consumers of digital content, such copying should not be restricted in any way by copyright owners.
As private copying now encompass copies that are technically required for consumers to be able to enjoy digital content, it should be further harmonised within the European Union and gives all European consumers the same scope and level of certainty.
Certainty of the private copy can be endangered by a too broad application of the threestep test. This provision, included in the Information Society directive, limits the enactment of copyright exceptions to (1) certain special cases (2) which do not conflict with a normal exploitation of the work or other subject-matter and (3) do not unreasonably prejudice the legitimate interests of the rights holders. National courts have sometimes applied the three-step test to the private copy when in practice, it seemed that the admissibility of making a digital copy would harm the normal exploitation of the work. It is difficult to understand how a single act of copying would counter the normal exploitation of a work, and submitting the exception to that further condition would create legal uncertainty for the consumer, particularly since the criteria of the test have never been defined in the European legislation or case law.
The three-step test should be limited to a tool for lawmakers when adapting copyright exceptions and incidentally to courts to interpret the exact scope of an unclear legal provision, but it should not add supplementary conditions to copyright exceptions. Another source for uncertainty for the consumer is the requirement, existing in some Member States, of a lawful source for the private copy: the copy would be exempted under an exception only if it is made from a non counterfeited work. That requirement aims particularly to prevent the application of the private copy exception in illegal peer-to-peer file-sharing when users download works whose communication in such networks have not been authorised by copyright owners. The situation of the lawful source for the private copy, as well as for other exceptions, should be clarified. Conditioning each exception to the evidence of such source would constitute too great a burden for the consumer who might not have, in most cases, have the means to prove that the copy she has used in conformity of an exception was itself authorised. Other means could be found to fight piracy in peer-to-peer networks.
Claims of consumers to acknowledge their genuine right to a private copy have been asserted before some national courts to no avail so far. Answers to the legal nature of the private copy are not easy and will differ from a Member State to another depending on their legal traditions. The intervention of the European lawmaker does not seem necessary on that point. Rather, the effective benefit of the private copy, particularly against attempts of copyright owners to restrain it by contract or technological locks, should trigger legal mechanisms to safeguard the exception in favour of the consumers, as will be developed below.
A last point regarding the private copy exception relates to the levies system, designed in many countries to compensate the copyright and related rights owners for that use of their works and performances. Despite many recent attempts, the levies have not been harmonised, which unnecessarily fragments the Internal Market for reproductive technologies and devices and makes consumers unequal. A recent decision of the European Court of Justice justifies the collection of levies on any equipment sold to natural persons, whatever the purpose they will make thereof, but also implicitly calls for more harmonisation in that field. To cater to the concerns of consumers, the levies system should at the minimum assess the damage suffered by the copyright owners by the private copying to calculate an adequate compensation. Some private copying rendered necessary by digital technologies might be considered as being de minimis and lead to no compensation.
The lawful user
The expansion of contracts governing provision of digital content has added a condition to the benefit some copyright exceptions, particularly to software and databases: in some cases, only the lawful user of a work is entitled to exercise copyright exceptions. That condition of the lawful user, that also conditions the enforceability of exceptions against technological measures in the Information Society directive, can unduly restrain the rights of consumers depending on its definition. When defined as the sole licensee of the work, the lawful user will not apply to all consumers acquiring digital goods, who will then be deprived of some fundamental privileges of use. A better definition would be to link the lawful use with the lawful possession of a copyrighted work, even though it would require some evidence of that legitimacy from the consumer.
The definition given by the Information Society to the lawful use is the broadest as it encompasses all uses authorised by the rightholder or not restricted by law. The notion of the lawful user should be restricted to limited situations as it potentially reduces the benefit of copyright exceptions for consumers and should be uniformly defined by the European copyright regime.
Mandatory nature of copyright exceptions
The emergence of electronic licensing binding any consumer of a copyrighted work has also prompted a new issue related to the copyright exceptions: are those mandatory or can they be contracted out ? In the Software and Database directives, the European lawmaker has answered by making some exceptions of an imperative nature. Surprisingly in the Information Society directive, no provisions prevent copyright exceptions from being overridden by contract, and some elements of the directive even suggests the prevalence of contract over the exceptions. In the online provision of informational goods, nonnegotiated and standard form contracts increasingly bind the consumers and grants limited rights of use, disrespectfully of copyright exceptions.
A better protection of consumers’ interests would require declaring copyright exceptions non-overridable, as in some Member States, or at least those exceptions conveying fundamental rights or public interests. Even the private copy should be made mandatory, as it has become a legitimate expectation of the consumers.
The rule of exhaustion and its digital application
The principle of exhaustion permits the further distribution or sale of tangible copies of a copyrighted work, once the distribution of such copies has been made within the European Union with the consent of the rightholders. It is not applicable to digital products provided online which creates a divergence that might not be understood by the consumer. A digital exhaustion could however be applied online, provided that the consumer effectively transfers the good and deletes any subsisting copy. It should be provided that the rule of exhaustion is of a mandatory nature and cannot be contracted out.
The consumer and the technological measures of protection
The deployment of technological measures of protection (TPM) to protect digital works against unauthorised access and use has further restricted the rights of consumers. The Information Society directive has provided for a mandate for Member States to make some copyright exceptions enforceable against TPM, but this solution is rather limited and difficult to apply. The private copy exception is only covered by this mechanism if the Member States wish so, and the provision of works made available on-line on demand does not need to comply with copyright exceptions.
TPM are also likely to raise issues of playability and interoperability for consumers, as they might interfere with the normal use of devices used by the consumer or not be compatible with them. Member States have provided fragmented answers to such issues, sometimes mandating a proper information on the application and effect of TPM by content providers. Consumers’ interests would be better protected if European copyright regulatory framework specifically address such issues and encourage digital content providers to develop consumer-friendly TPM, complying with copyright exceptions, and notably the needs of disabled consumers, privacy and legitimate expectations of consumers related to transparency, security, playability and interoperability.