Following my post yesterday about the extraordinary failure of the IPRED consultation process, I enclose below my letter sent to the European Commission on the subject, calling for an extension to the consultation, and for alternative ways of making submissions:
Dear Mr Bergevin,
I am writing to you in connection with the recent IPRED consultation. Although I was naturally pleased that the consultation was taking place, thus giving all interested parties the opportunity to express their views, I have a number concerns about its actual implementation that I'd like to raise with you.
First, the online submission process failed several times for me. My first set of answers simply disappeared after I saved them as a draft, thus wasting a good hour's work. The same happened the second time. I therefore sought help from the email addresses ([email protected] and [email protected]) given on the consultation Web site, hoping to retrieve my saved drafts.
I sent these off on Thursday, 28 March, well before the closing date of the consultation. I finally received a reply yesterday, 2 April, with the unhelpful comment: "Please notice that the mentioned IPM survey has been closed in the meantime by the responsible authority." A second email then informed me, even more unhelpfully, "Your help request has been resolved". It had not, it had been completely ignored in a very unprofessional manner.
Nor was I alone in having problems submitting my response. I learned from others that they too had lost hours of work when the form simply wiped their answers. Some were unable to take part at all because they never received the email with the link to the relevant Web page. Given that this was a quick survey of just a few people, it is likely that many more members of the public had similar problems that prevented them from taking part in this consultation.
Made wiser by my first two experiences, I filled in the questionnaire for the third time using very short answers, and submitted the form immediately so as not to lose them. However, this meant that I was not able to give my full thoughts on the important matters raised. That was also made difficult by the structure of the form. The dynamic nature of the questionnaire meant that many issues only appeared if you selected certain options in previous questions. This meant that inadvertently choosing one option that did not lead to further questions could deprive you of the possibility of answering more fully.
In any case, I was very disappointed that the questions seemed to pre-judge the outcome of the consultation. For example, the opening questions all assumed the intellectual monopolies like copyright and patents were necessary, and that more of them were a good thing. That is a contentious issue, and should not have been assumed by the consultation, whose main task is to solicit the views of Europeans on precisely these matters, not to impose its own. Similarly, the section on infringement assumed that this was automatically a problem, and yet the European Commission's own, very recent research (available from ftp://ftp.jrc.es/pub/EURdoc/JRC79605.pdf) shows that in the case of digital music, it is not:
"Perhaps surprisingly, our results present no evidence of digital music sales displacement. While we find important cross country differences in the effects of downloading on music purchases, our findings suggest a rather small complementarity between these two music consumption channels. It seems that the majority of the music that is consumed illegally by the individuals in our sample would not have been purchased if illegal downloading websites were not available to them. The complementarity effect of online streaming is found to be somewhat larger, suggesting a stimulating effect of this activity on the sales of digital music.
Taken at face value, our findings indicate that digital music piracy does not displace legal music purchases in digital format. This means that although there is trespassing of private property rights (copyrights), there is unlikely to be much harm done on digital music revenues."
Once again, the biased nature of the consultation meant that there was no recognition of this fact, or option to point it out. Instead, the whole tenor was that infringement was always a problem, and that harsher enforcement was necessarily required.
Another example of the bias can be seen in the section entitled "Right of information", which concerned the "right" of monopoly holders to obtain personal information about those allegedly committing infringement. There is no recognition that those people might be innocent, or that they had any right to privacy. Instead, the questions are all clearly directed towards obtaining answers along the lines that it's too hard to get "information", implicitly because of privacy laws that get in the way of punishment (one question specifically asks about "limits imposed by data protection rules", as if such "limits" were unreasonable.)
Finally, there was the following question and "clarification":
"In cases of notorious infringers of intellectual property rights, do you consider that there should be particular consequences (i.e. including e.g. suspension of the infringer's/alleged infringer's account) resulting from a notification mechanism?
For the purposes of this survey, "notorious infringers" are considered as infringers who have been the subject of a number of procedures based on the notification mechanism."
What's striking here is that anyone subject to notification mechanisms is defined as being "notorious"; and yet all of those notification mechanisms are about allegations of copyright infringement, not proof. That means the consultation is defining those merely accused of infringement as being "notorious infringers" - an extraordinary, and totally unacceptable, inversion of the usual assumption of innocence until proven guilty.
Clearly, this consultation was deeply flawed, both in terms of its content and implementation. It is probably not feasible to run the entire process again, although that is what is really required in order to produce a fair and unbiased result that could then be fed into the drafting of IPRED 2. However, in view of the widespread technical problems that prevented me and others from submitting our responses as we wished, I am formally asking you to re-open the consultation, and to allow further submissions until the end of this month (April). In addition, given the issues with the Web-based input form, I would ask that it be made clear that people can download the questionnaire and answer it using whatever means they find convenient – in particular, that they can email their response directly, as a document in an open format.
I look forward to your response.
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