[A2k] IViR: Open Letter concerning European Commission's `Intellectual Property Package'

[Manon Ress]

See:  http://www.ivir.nl/


Cut and paste here:

Institute for Information Law
University of Amsterdam
www.ivir.nl

Dr. Jose Manuel Barroso
President of the European Commission
1049 Brussels, Belgium

Re: Open Letter concerning European Commission's `Intellectual
Property Package'
Amsterdam, 18 August 2008

Dear Dr. Barroso,

The Institute for Information Law (IViR) of the University of
Amsterdam is a leading research
institute in the field of European copyright law. In 2006 and 2007,
IViR produced two major studies
on EU copyright law and policy:

=95 The Recasting of Copyright & Related Rights for the Knowledge
Economy, available at:
http://Nv-,vw.ivir.nl/publications/other/lViR Recast Final Report
2006.pd

=95 Study on the Implementation and Effect in Member States' Laws of
Directive 2001/29/EC on
the Harmonisation of Certain Aspects of Copyright and Related Rights
in the Information
Society, available at: littp://www.ivir.nl/publicatioiis/guibault/Infosoc
  report 2007.pdf

Both studies were commissioned by the Commission (DG Internal Market
and Services) in December
2005, discussed at great length with Commission officials at every
stage of their completion, officially
approved by the Commission, and finally published on the DG Market
website. Both studies were
researched and written by teams of expert researchers in the fields of
law and economics that were
recruited from IViR and various other European institutes. In
addition, the main conclusions of the
Recasting Study were discussed with leading European scholars in the
field of intellectual property
law, prior to its final submission.

Since their completion and publication, both studies have attracted
considerable attention in scholarly
circles and among stakeholders and continue to play an important role
in informing the current debate
on the future of copyright law and policy in the EU. It comes
therefore as a complete surprise to us to
discover that our studies have been almost entirely ignored in the so-
called `forward looking package'
on Intellectual Property that the Commission has released on July 16,
2008.

The Explanatory Memorandum that accompanies the proposal for a term
extension of the rights of
performing artists and phonogram producers, which is the centre-piece
of the Commission's package,
references at various places studies and data provided by
stakeholders, but fails to even mention our
Recasting Study, which deals with the topic of term extension in
detail and, on the basis of a thorough
legal and economic analysis, rejects the main arguments made in favour
of an extension. The
Explanatory Memorandum also disregards our critical analysis of the
issue of co-written musical
works, which constitutes a separate chapter of the Recasting Study.

Amazingly and quite misleadingly, the Explanatory Memorandum states
(on p. 6, in fine) that `[T]here
was no need for external expertise'. This is patently untrue, as the
terms of reference of the Recasting
Study, which were drawn up by the European Commission (Invitation to
tender Markt/2005/08/D),
expressly asked for the examination of, among other issues, the need
for a term extension and the issue
of co-written musical works. The Impact Assessment that supposedly
underlies the Commission's
proposal also ignores the Recasting Study, except for a single mention
in footnote 51, which quotes
our study out of context. Similarly, the Green Paper on Copyright in
the Knowledge Economy, that
covers much of the terrain explored in both our studies, once again
ignores the critical findings of our
research.

We are, of course, well aware that several conclusions of the IViR
studies do not agree with the policy
choices underlying the Commission's proposals. And we are certainly
not so nave as to expect that
the recommendations of an academic institution such as ours, however
well researched and conceived
they may be, will find their way into the Commission's policies in
undiluted form. What we would
expect however is that our work, which was expressly commissioned by
the policy unit in charge of
these proposals, be given the appropriate consideration by the
Commission and be duly referenced in
its policy documents, in particular wherever the Commission's policy
choices depart from our studies'
main recommendations.

As you are certainly aware, one of the aims of the `Better Regulation'
policy that is part of the Lisbon
agenda is to increase the transparency of the EU legislative process.
By wilfully ignoring scientific
analysis and evidence that was made available to the Commission upon
its own initiative, the
Commission's recent Intellectual Property package does not live up to
this ambition. Indeed, the
Commission's obscuration of the IViR studies and its failure to
confront the critical arguments made
therein seem to reveal an intention to mislead the Council and the
Parliament, as well as the citizens of
the European Union.

In doing so the Commission reinforces the suspicion, already widely
held by the public at large, that
its policies are less the product of a rational decision-making
process than of lobbying by stakeholders.
This is troublesome not only in the light of the current crisis of
faith as regards the European
lawmaking institutions, but also - and particularly so - in view of
European citizens' increasingly
critical attitudes towards intellectual property law.

I hereby urge the Commission to fully inform the European Parliament
and the Council of Ministers of
the findings of our studies in connection with the above-mentioned
proposals and to duly and properly
reference our work in future policy initiatives.

Copies of this letter will be sent to Mr. C. McCreevy (Commissioner DG
Market and Services), the
European Parliament and the Council of the EU. This letter will also
be publicly posted on our website
at www.ivir.nl.

Sincerely,

Prof. Dr. P. Bernt Hugenholtz
Director, Institute for Information Law (IViR), University of Amsterdam