DEDIOS
C. INCONSISTENCIAS DEL ATEíSMO CON1’EMPORANEO:
Copyright law should aim to establish a fair balance by recognising both the interests of creators and the interests of consumers. Just as copyright holders own some core rights and interests, consumers also hold some inviolable rights to use and disseminate protected works. A dynamically developing market requires a flexible legal framework that allows new and socially valuable uses to develop without the copyright owners’ permission as long as they do not affect the normal use of copyright works.
The establishment of a harmonised, consumer-friendly and forward looking copyright framework is needed with a view to create more certainty and remove unrealistic constraints on the use of creative content by consumers85.
Issue 6: Administrative cooperation in the Directive
70. Does a procedure to ensure notification to the other Member States and to the Commission of any restriction falling under Article 3 (4) exist in your Member State. If so, please specify this procedure and the number of notifications made to the Commission and to other Member States since 17 January 2002.
71. Do you think that the system of notification provided for in Article 3(4) is effective or should it be clarified, or strengthened by information systems such as the IMI (Internal Market Information System)?
72. Do you take the view that administrative cooperation between Member States, in particular by means of the designation of contact points, has worked satisfactorily? How could it be improved?
73. According to your information, what are the important administrative and judicial decisions relating to information society services or practices and customs relating to electronic commerce to be communicated to the Commission?
N/A
85 For further information, please see BEUC’s response to the Reflection Paper on creative content online, Reference X/003/2010 - 05/01/10
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Issue 7: The resolution of online disputes74. What knowledge do you have of on-line dispute settlement systems (legal and extrajudicial) in your Member State or in other Member States?
In tandem with the sharp increase over the last two decades of commercial transactions concluded via the internet, there has been extensive discussion regarding the use of online dispute resolution systems (ODRs) to resolve disputes which inevitably arise as part of online commercial transactions.
Although Online Dispute Resolution systems are relatively new and not widely spread, a number of ODR schemes have already been developed in EU Member States. Similar systems are available in the UK, Sweden, Germany, Austria, Italy, France, the Netherlands and since recently, in Portugal. For instance, in Spain, companies signing a specific code of conduct ( www.confianzaonline.es ) adhere to an ADR mechanism whereby a first mediation is overseen by the AECEM (Spanish association of e-commerce) in a maximum of 7 days after the request is made. Should the mediation be unsuccessful, the case is referred to an arbitration court whose decision must be respected. In Portugal, the Magistrate’s Court (ADR body) can deal with the mediation phase and eventually the judging phase of the dispute with all the process being done online (making it unnecessary for the consumer to travel).
However, there is significant convergence as to the scope and operational proceedings. In parallel, international organisations have been engaged in the promotion of online dispute settlement systems, especially in relation to the disputes arising from e-commerce transactions86.
75. To your knowledge, are the financial costs, the necessary processing time and the facility to solve a traditional dispute (personal data theft, non-delivery of ordered services, fraud, non-payment, misleading advertising, illegal copy etc.) equivalent if the resolution takes place on-line or off-on-line? If not, can you explain the reasons for any differences?
BEUC takes the view that offline dispute resolution and online dispute settlement mechanisms are not equivalent. Alternative dispute resolution online (ODR) can be more effective than traditional dispute settlement methods in terms of time, convenience and financial resources involved in dispute resolution procedure.
86 In December 2000, the Organisation for Economic Co-Operation and Development (OECD), Hague Conference on Private International Law (HCPIL), and International Chamber of Commerce (ICC) jointly organised a conference entitled ‘Building Trust in the Online Environment: Business-to-Consumer Dispute Resolution’ held in the Hague, Netherlands. ICC has developed in 2003 ’Resolving disputes online. Best practices to ODR in B2C and C2C transactions’; UNCITRAL adopted the paper supporting the possible future work on online dispute resolution by UNCITRAL during its 43rd session on 21 June-9 July 2010 and approved its new Working Group for cross-border ODR. This group will aim to prepare ODR Rules which should be applicable worldwide.
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ODR is particularly convenient and efficient where the parties are at a distance, as distance communication obviates the need for travelling and thus substantially reduces cost. In terms of convenience, parties can contact one another much faster and more often, in addition, depending on the technology available, they can do it in a number of ways. The traditional ADR systems depend essentially on an exchange of letters and oral hearings, whereas the online environment requires new methods of communication, such as data messaging, audio and video-conferencing, while it presents challenges in terms of protection and retention of personal data.ODR may allow greater flexibility in procedure. Although in general ODR mechanisms are inspired by traditional dispute resolution, some ODR procedures, like automated negotiation do not have exact offline equivalents.
However, without direct interpersonal contact it can be more difficult for parties to convey their arguments and find a solution to the dispute. BEUC is concerned that ‘writing-only’ procedures may raise the pressure on the parties to use lawyers, taking into account the fact that the parties’ abilities to translate factual circumstances into legal concepts will be limited.
Lastly, the digital divide between digital natives and non-natives may also constitute an important hurdle to the widespread use of ODRs, which requires all parties involved to be familiar with sophisticated web technology.
76. Are you aware of statistics or studies at national level on law enforcement on the internet by the supervisory authorities and/or the judiciary of Member States?
Consumer protection authorities have already engaged in using internet technologies for the monitoring of surveillance of the trends of such infringements and cooperation in combating them. For instance, both International Consumer Protection Network (ICPEN) and the EU Consumer Protection Cooperation Network (CPC) of consumer protection authorities are conducting yearly ‘sweeps’
of internet websites offering goods and services for consumers to check if they adhere to the provisions of consumer protection and e-commerce regulations. As the result of these sweeps, investigations are carried out and enforcement actions taken.
As another example, 24 members of ICPEN (including 14 EU Member States) have been involved in an econsumer.gov initiative87, a joint effort to gather and share cross-border e-commerce complaints among public enforcers. Consumers are encouraged to submit their cross-border complaints on the public website.
Public authorities use the information posted in conduct enforcement activities.
87 http://www.econsumer.gov/english/resources/trends.shtm
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77. Do you take the view that the services of on-line disputes settlements (judicial and non-judicial) where these exist have improved victims' rights in European society? If so, how? If not, how can these services be improved?Despite the advantages that ODRs may provide for in terms of speed and cost-savings, a number of drawbacks need to be seriously considered. First, participation in ODRs remains voluntary while the recognition and enforcement of ODR awards by courts is problematic. Secondly, it remains questionable whether ODRs should comply with the principles embodied in the existing EC Recommendations for Alternative Dispute Resolution88 especially regarding the independence of a third party, the impartiality of the procedure and the compliance with the fundamental right to due process.
For ODRs to be endorsed, a number of safeguards are necessary. First, the independence of ODRs needs to be guaranteed, while consumers should be fully informed about the conditions of access to the ODR system at the time the transaction is concluded (including, costs and type of ODR, i.e. negotiation, mediation, arbitration or other).
Secondly, the use of ODR should by no means be mandatory prior to other redress; otherwise it would provide an additional step in the process that might dissuade consumers from escalating their complaint. The suspension of prescription periods to take legal action is also essential to ensure that access to justice is not hindered when the parties opt for an ODR.
Thirdly, ODR providers should refer disputes to the relevant law enforcement authorities, with the consumer’s permission, when they have reason to believe that there may be fraud, deceit or patterns of abuse on the part of the internet merchant. In such cases, the merchant should be informed that such action has been taken.
END
88 Recommendation of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes (98/257/EC) and Commission Recommendation of 4 April 2001 on the principles for out-of-court bodies involved in the consensual resolution of consumer disputes (2001/310/EC).