EU Consultations: A Modest Proposal

Last week I reported on the reply I received from Jean Bergevin of the European Commission on the subject of the IPRED consultation, and my own response to that. I wondered whether I would receive a reply, suspecting that I might not. I was wrong: not only did a reply turn up, it turned up almost by return of post. Here's what Mr Bergevin wrote:

Thank you for your response to my previous reply. Regarding your first response I sincerely hope that most people did not simply give up. I will certainly commit to finding more efficient ways to canvas citizen's opinions but I am sure that you will recognise that this is not easy. I agree that keeping things simple is a very good rule of thumb to apply but this issue of civil enforcement of IP is not the easiest to simplify.

On your second point, I wish to assure you that I was certainly not implying that this questionnaire, because of its subject matter, could only be filled in by companies nor that it would exclude the issue of copyright infringements. Individuals, whether for copyright or other IP infringements, may well find themselves receiving Court summons and/or finding themselves in civil courts as defendants against alleged infringements. We wish to receive input from such defendants in order to assess their views as to whether they feel these Court procedures allow for a fair hearing and meet the requirements that have been harmonised in IPRED which is in line with the Charter of fundamental rights of the European treaty.

Furthermore, the questionnaire also sought to determine if legal redress for IP infringements is accessible to all. Citizens and consumer rights associations often rightly state that they oppose out of Court actions where there is no legal oversight. Yet, often because of the costs or delays in Court systems, the law is applied through such systems. I would hope that such associations and possibly some of the individuals they represent have replied as to whether in fact the Courts are indeed being used and, if not, how that might be altered in the interest of enhanced legal oversight.

Finally, it is only if such cases go to the Court that the harm of the relevant infringement can be assessed in a fair and equitable manner and proportionate damages can be established. I would have thought that the 200 million citizens you refer to would be interested to know how judges decide in such cases and what, if any, damages are awarded. For example, do they only award damages for infringements that they assess to be of commercial scale ? If so, how do they evaluate commercial scale etc ? I hope that we will begin to find answers to those questions in our survey responses. However, given the time that you have personally dedicated to this consultation, I would be grateful for your views on these issues. We are very keen to engage with civil society and to be as objective as possible in our analysis and so any assistance that you could kindly provide in that respect would be welcome.

Here's my reply:

I'm delighted to hear that you are keen to engage with civil society, since I think that in the past this voice has been largely absent from conversations on this and many other areas. As you rightly say, it is not easy to canvas citizens' opinions, not least because the means to do so have been lacking.

However, thanks to the Internet, that's no longer the case. Many people in Europe are now connected, which means that they can access documents and participate in consultations. But I think the implications actually go much further, and may help to resolve some of the problems you face when canvassing their views.

The connectivity that many people now have makes it easy for them to take part in surveys, but even more radically, it enables them to help to draw up those surveys in the first place. Here's what that might mean in practice.

When a consultation is due to take place, a preliminary call for input would be made. This would be very general, and simply ask for people's views on what kind of questions ought to be included in such a consultation, exploring which issues. This would give your department a framework within which the questionnaire could be constructed.

However, using the same wide connectivity to reach stakeholders, that questionnaire could then be placed online in a draft form for detailed comment: I think this would avoid the kind of problems that I and others encountered with the IPRED consultation, since it would have have been obvious that certain questions did not make it easy to express ideas that lay outside the implicit framework that had been adopted. It might even be possible to place several iterations of the consultation online so that revised versions could be considered by those who raised issues.

The advantage of such an approach is that it wouldn't require a formal structure to get people to look at several versions: all input at any stage would be useful, whether return visits by those who had offered comments on early drafts, or fresh comments from those who had not. Moreover, this process need not take long: word gets out very quickly online, ensuring that your department would receive rapid feedback without being slowed down by the process, while retaining overall control of the final result.

Adopting this approach of iterated drafts placed online would, I believe, solve most of the problems I found in the current IPRED consultation, enabling you to receive more feedback from a wider spectrum of respondents, including the elusive public.

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