Last week, COMMUNIA submitted its response (PDF file) to the open consultation on the Digital Fairness Act. While many of the issues addressed in the proposed Act extend beyond our core mandate, we wish to highlight a critical yet overlooked consumer rights concern: the fairness of licensing practices for digital creative works, such as e-books and other copyright-protected materials.
The shift from ownership to licensing
Users are increasingly losing the ability to own copies (physical or digital) of copyrighted works. Today, many cultural and scientific materials are published exclusively in digital formats, making it difficult—if not impossible—to obtain analogue copies of films, music, or publications.
This shift from ownership to licensing has far-reaching consequences for both consumers and public-interest institutions such as libraries, educational establishments, and research organisations. Licences often impose restrictive terms and bind users to proprietary platforms or specific devices with limited functionality.
Evidence of unfair licensing practices
Over the past year, COMMUNIA has conducted extensive research on licensing practices, with a particular focus on the library sector. Our report, Unfair licensing practices in the library sector, based on testimonies from academic and public libraries and analyses of licensing contracts, identifies a series of practices that are unfavourable to users and, in some cases, clearly unfair or even abusive. These findings have been corroborated by independent studies of licensing agreements in similar contexts.
Policy recommendations
To promote fairness and access in the digital environment, COMMUNIA recommends that the Digital Fairness Act include specific measures to support digital ownership and equitable licensing, benefiting both consumers and public-interest institutions such as libraries and educational organisations.
One possible measure would be an obligation to provide access to digital formats, by licence or other means. In order to ensure that such an obligation merely corrects the current market failure, without placing an undue burden on rights holders, the obligation would need to be subject to use-specific proportionality assessment. In addition, it would need to be ensured that the terms and conditions of licences and other agreements aimed at providing access to institutions are subject to fair and reasonable conditions.
Alternatively, if copyright measures fall outside the scope of the regulation, or in addition to those measures, the Digital Fairness Act could promote fairness in digital licensing markets by introducing transparency obligations with regards to pricing and usage data, introducing interoperability and portability requirements to enable migration between platforms and allow consumers to read e-books and use other digital formats across platforms, prohibiting bundling and other unfair commercial practices, and granting access rights for specific beneficiaries or privileged uses.
These measures would complement existing EU instruments and contribute to a more equitable and open digital environment for consumers and public-interest institutions alike.
