Commission IPRED Consultation, answering guide (citizens w/o 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 fever 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. The guide for citizens with copyrights is found on this link.

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.

Part 2: Questionnaire, page 2

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

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: 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.

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. If you answer no to this question you will be given an opportunity to give a comment. 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 3: No.
Question 4: No.
Question 5: No. (Commercial scale is not a legally defined term, and may also include any industry that thinks that a individual's inability to make a purchase means that this individual have become a commercial player)
Question 6: No. (We don't like three-strikes-rules like those on Ireland or in France)

[1] Study conducted by the organization 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.

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: 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.


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