Commission IPRED Consultation, answering guide (citizens w copyrights)

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On the 30 of november the commission opened a IPRED-questionnaire. To make it easier for citizens to respond to this questions, we here at my office have prepared a preliminary response guide. It will make it easier to understand when and why you should leave a response to the questions. It's however pretty general in its nature, as the commission almost always dismisses answers that are exactly the same.

You can find the survey here: http://ec.europa.eu/internal_market/consultations/2012/intellectual-property-rights_en.htm

To participate in the survey, you must request a consultation link to be sent to you by email. This is done by providing your email to the Commission, they will then manually send the link to the survey to you. This means that you only can get a participation link during normal office hours. During the next week we will request many participation links, so it will be easier to get a link during the Christmas and New Years leave.

For general information about consultations refer to the text at the bottom of this article.

Answers guide:

Part 1: Background information

Here the Commission will ask you questions about who you are, normally you will answer that you are a citizen or a citizen holding intellectual property right(s). The answers given below are for citizens that do not want to respond as if they have intellectual property rights. This means that you will have to answer fewer questions, but otherwise the forms are virtually identical. We will soon publish a another preliminary response guide for citizens with intellectual property rights. Since intellectual property rights are generated each time you are writing a text or humming an unknown melody it is highly unlikely that you do not hold any form of intellectual property rights. If you ever have hummed on a known melody, or have been filmed (voluntarily or involuntarily), you will also hold a so-called related rights, that is something you get when you perform in any way. As a citizen with intellectual property rights you will get to answer both more questions, and in more detail than citizens without intellectual property rights. We recommend that citizens to respond as if they hold intellectual property rights.

If you have registered patents or trademark rights, you also get a few more questions. This includes if another companies ever have used their intellectual property in a competitive manner against you, and in addition they will ask you about the meaning of a monopoly right!

Part 2: Questionnaire, page 1

Suggested answer: Who you are, where you consider yourself to operate and where you come from. Probably it will be enough with a email, zip code and city. It can however be hard to avoid stating your name, unless you deliberately limit yourself to your first name, or else you will face the risk that they will not take you as seriously.

Question 1-4: All these questions are comments. Here you could make an observation that the directive is not legally secure, as it does not respect the right to privacy. You could also also point out that the directive have failed to create a homogeneous and harmonizing effect on the internal market. Should should also mention that studies made on infringement of intellectual property rights on the internet, shows that file-sharers on the internet consumes more culture than those who don't share any files[1]. Also you could mentation that intellectual property is increasingly becoming a barrier for trade, and that we need more exception in the intellectual property laws so that no library[2], teachers, organizations for the visually impaired[3] and other socially beneficial organisations[4] or new companies is damaged by intellectual property rights[5].

Question 5: The answer should be "Crucial". For us citizens it is of utmost importance that our legal system works in a way that is socially acceptable.

[1] The corpus of material that supports this statement is pretty big right now, but here is a compilation, a study of MegaUpload and a collection from 2010
[2] Refer to the Swedish Pirateparty review of the library issue and the proposal from the Commission itself about orphan works.
[3] Refer to the work from European Blind Unions work with exceptions in intellectual property law.
[4] Refer to this excellent report from IViR in the Netherlands or the legal sociology research at Lund University Internet Institute.
[5] Refer to the Commissions own investigation about the role of intellectual property blocking on the internal market. Or the report from the Commission that that is criticizing legal protection of databases role in the development of the inner market.

Part 2: Questionnaire, page 2

SectionEfficiency and Effectiveness of civil proceedings in Cases Concerning infringements of intellectual property rights

NOTE: If you have been subjected to intimidation or harassment of the recording industry or the movie industry, this is really important for you to answer:

Question 1: If you have received a threatening letter from the record or film industry, say yes. Otherwise, no.
Question 2: No, in both cases above.
Question 3: If you are being sued by the record or film industry, yes. If you have not been sued, no.
Question 4: No. (file-sharers should have the same right to justice as others, without being herded through the legal system extra fast)
Question 5: No. (see above)
Question 6: No.
Question 7: No.
Question 8: No. (We want to have the same opportunities for justice in intellectual property law, as in other areas of law)
Question 9: No.
Question 10: No.
Question 11: No

Question 12: Open Question (free text up to 1000 characters). Here you can discuss the need to have proper assessment of the evidence and to ensure all Europeans the right to privacy. Justice must take its course. One can also raise the risks of specialized courts [1], state authorities take over the role of the courts (Hadopi in France [2]) or the submission of responsibilities to private actors (Ireland [3] and the USA [4]).

[1] There is much criticism of e.g. specialized patent courts.
[2] HADOPI have been criticised on several occasions. For Swedish criticism look at the references here. For the latest developments look here. In brief, HADOPI will make it possible to disconnect users from the internet without justice in a court - right holders can accuse citizens of intrusion into their rights to a central authority. Upon receiving three complaints about a citizen the authority, called HADOPI, will disconnect the citizen from the internet.
[3] Irelands biggest internet service provider has an agreement with the three largest record companies to disconnect citizens from the internet, if they are accused of file-sharing three times in a row. There will not be any trial by court at all. The case have been examined by the irish data protection ombudsman that sadly lost the case, making the poor Irish data protection laws now allows three-strikes-laws without any trial by court.
[4] See proposed six-strikes-regime here.

SectionRight to information:

Question 1: Open question. Here you can discuss the need of a copyright reform so people that behaves within the accepted social norm stops to infringe copyright[1]. You can also emphasise the importance of preserving the Secrecy of correspondence[2] and not to make the platforms on the net or internet operators suddenly becomes legally responsible for what their customers do (so for example, they must begin to filter, block or monitor private communications).

Question 2: No.
Question 3: Not applicable.
Question 4: Not applicable.

Question 5: If you choose "No" as the answer to this question, you will get a text input box. In this box you can share information about the importance of, as far as possible, to preserve the Internet without any borders, because after all, this is one of the feature we like most about the internet. If you chose "not applicable" there will be no text input box.

[1] The corpus of material that supports this statement is pretty massive right now, but here is a compilation, a study of MegaUpload, a collection from 2010.
[2] In the wikipedia article about The secrecy of correspondence you can find information about that the principle is protected by constitution in many EU countries, which are rooted in the very extensive monitoring of private communications previously existed have undesirable consequences for citizens who are victims of such treatment.

SectionMechanisms to inform about the alleged infringement and to impede access to goods and services allegedly infringing IPRs

Question 1: No. We don't want any automated justice (notice-and-takedown)
Question 2: No. (Look above)

Question 3: Open question. Here you could write an observation about that notice-and-takedown have been proved to lead to legal uncertainty in e.g. Netherlands[1], and also caused problems with poor insight in other member-states[2]. This could also be a good opportunity to point out the importance of protecting citizens right to privacy and fundamental rights, which should mean that data should not be transferred between different parties in this way[3].

Question 4: No. (Look at question 1 and 2)

Question 5: Open Question. Here you can point out the fundamental errors found in models based on scaring users into obedience, and problems with privacy and integrity that arise when introducing this kind of models[4]. We must build a society that the citizens want.

Question 6: No. (Commercial scale is not a legally defined term, and may also include any industry that thinks that a individuals inability to make a purchase means that this individual have become a commercial player)
Question 7: No. (We don't like three-strikes-rules like those on Ireland or in France)

[1] Study conducted by the Organizations Bits of Freedom: www.bof.nl/docs/researchpaperSANE.pdf
[2] Refer to this study by the organisation EDRi: http://www.edri.org/edrigram/number9.2/self-regulation-study-edri
[3] Compare the case with Ireland in footnote 3 in the section above.
[4] Refer to the Commission's very thorough safeguards for private companies in the proposed certificate regime for collective wailing in competition (§ 84-109). Also compare the corresponding argument on page 15, middle section, and page 20, Section 9 from the Commission's original IPRED proposal from 2003.

SectionCorrective measures

Question 1: No. (this should be handled on member state level)
Question 2: No. (this should be handled on member state level)
Question 3: No. (this should be handled on member state level)
Question 4: Open question.The question implies that they want to know how much of the goods sized you think should be destroyed. If it is a physical product, such as a wristwatch, we may assume that the destruction of the item can be arranged at Member State level. If it is about anything digital on the internet, such as a mp3-file or a flash-movie the question is probably irrelevant.
Question 5: No. (this should be handled on member state level)

Comment: This is about the subsidiarity principle, or that the question should be decided on the right level. There is no reason to believe that the EU is better able to make decisions about any of the things mention in the sections, other than the Member States themselves.


Question 1: Open Question. You can once again make a point of the whole system of compensation is very outdated and does not take into account that piracy of copyrighted material in fact have been proved good for cultural consumption and overall breadth of cultural production. (This question may not apply to other types of licensees, since other types of licenses than those for the sale of finished products, of course, negotiated between two parties rather than unilaterally established by one party, cf patent licenses).
Question 2: No
Question 3: No

A consultation, or in other words a questionnaire survey is something the Commission uses when they want to find out how different actors in society thinks about a particular social issue. Consultations is created through a questionnaire system that was developed by IBM in the 1990s. This means that the consultations may seem awkward to handle for individuals that are used to systems like surveymonkey or other means of questionnaires that are much more user friendly.

The Commission usually likes to be able to produces statistics based on the responses to the consultation. Therefore it is important to answer yes or no to the questions with a limited number of possible choices. If you do not agree with the question it really should be answered in a way that shows distance from the goal with the question.

Sometimes you will be given the opportunity to provide your own answers, in free text. These question usually have character limit. It is these responses that will be rejected if they are identical.

Unfortunately the Commission only makes their consultations available in English. Therefore it can be difficult for non-English speakers to take part in these questionnaires. The European Parliament, among others, have directed heavy criticism to the Commission for this, as an explicit goal of many questionnaires is to provide the citizens with an easy way to contribute to the development of policies.

The Commission must also take all responses it have received from a consultation into account. Normally the commission also must publish the answers that is received, but private data of the citizens are handled in accordance with the EU regulatory framework for the protection of private data. Both as an individual or an interest group you can ask the Commission to keep your answers fully or partially confidential. However, as citizen you should contact your elected representatives either yourself, or through a interest group to ensure that your submitted position is actually take into account when the Commission presents its report.

9 kommentarer

Pirate slash:

Could you please be more specific about this general consultation, do you have a link to it?

Many thanks.
We also could need such a pirate answering guide for this general konsultation, which focuses on immaterial goods as such and has as a deadline the 8th of march 2013... are you currently working on such a pirat answering guide or even already can link something like that here ? ^^

Wow, this is an interesting problem! We should alert the Commission to this, actually. I'll make sure someone responsible finds out about this problem. Thank you for bringing it to our attention!!!

I already got the link to answer the survey. Did you already published the guide for citizens holding intellectual property rights?
I tried to search for it, but didn't find it.

This is the one. It is only for those citizens who are holding copyrights, but you've made this comment right below the citizens with copyright answering guide :-) We believe is that it is highly unlikely that anyone is a citizen WITHOUT copyrights at this time, so answering as if you're a copyright holder makes the most sense.

You can respond, principally, whatever you like. You can also leave blank responses. Presumably you're allowed to estimate the value (although I would say "priceless") in whichever currency you want. It's a very corporate focused survey that isn't at all really customized for the normal artist or citizen who may nevertheless be concerned with the legal development of their country. SOrry about that, it wasn't us :(

If you go to the mainpage (IPRED-konsultation) you will find now all the different model responses we have made :-)

Thanks! I managed to answer the questionnaire and publicize it, hoping people will answer it too.
I totally agree that it’s a very corporate focused survey. Actually, I've answered european questionnaires about these themes before and always feel the questions are directed to traditional businesses...
Thanks again,

Well, at the first paragraph you say
"The answers given below are for citizens that do not want to respond as if they have intellectual property rights." and "We will soon publish a another preliminary response guide for citizens with intellectual property rights", so I though there would be another one.

Then I checked the questionnaire and in the background information, there are questions that don't fit. I know that depending of previous answers you get different questions. I checked the Citizen holding IPR and I got some questions where I have some doubts:

26. How would you evaluate the significance of your intellectual property rights and related assets based on the performance and growth?

27. What is the value of your IPR portfolio?

28. How do infringements of your intellectual property rights impact the total value of your IPR portfolio

29. What is the substitution rate between original goods and counterfeited/pirated goods in your sector according to your estimation? How do you measure this rate?

30. How do infringements of your intellectual property rights impact your investment in research, development and innovation (eg. estimated loss in investments/amount of investments not undertaken)?

In some questions they ask the value of IPR in euro, but I don't know this value. I can explain that I believe the value of my IP is greater if there are more people sharing it and using it, but would they consider my answers?
Or because I don't give a value in euro, they would dismiss my opinion? Is it better to try to give a number to my IP?

I'm sorry for all this questions. I'm not sure if you can help, either.
I am trying to answer it and if I can do it in a satisfactory way I was thinking of writing a post in my portuguese blog alerting and helping other people to answer it.
Thanks in advance

Is anyone else having trouble with the invite link you got giving 504 gateway timeout errors? I haven't been able respond to the consultation because it seems to be almost consistently down on evenings and weekends.

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