Adding our evaluation of the final version of the Reda Report

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<title>Assessment of the report on the implementation of the InfoSoc
<body class="article" microformats="h-entry">
<p id="category"><a href="/work.html">Our work</a></p>
<h1 id="assessment-of-the-report-on-the-implementation-of-the-InfoSoc-directive">Assessment
of the report on the implementation of the InfoSoc directive</h1>
<h2 id="introduction">Introduction</h2>
<p>The 6th of June, this year, we proposed
<a href="/activities/policy/eu/20150605-Comments-On-Reda-Report.en.html">our
own assessment</a> of the draft report on the implementation of Directive
2001/29/EC. Afterwards, some amendments were passed and the report was
voted at the European Parliament on the 9th of July. As expected, there
were plenty of changes; today we present you our evaluation of the final
version of the report.</p>
<p>As we stated before, Free Software’s dynamic ecosystem and its
remarkable achievements have their foundation in copyright law. For this
reason, we, at FSFE, are keen to support a reform of Europe’s copyright
legislation. We want and need copyright to be future-proof, sustainable
and realistic. The European people need their legislators to view copyright
as one of many tools in the toolset of innovation policy. This implies
taking the interests of users seriously, and shaping the new copyright
rules on hard evidence. Concretely, we require uniform copyright exceptions
that are not defined by the use of a specific technology and that are
not unjustly limited by technological protection measures. We also ask
the European Union to recognize the need for a stronger public domain,
not only for artistic and literary works, but also for software. All of
these points were addressed in the final version of the report, although
not always as much as we would have liked.</p>
<h2 id="general-considerations">General considerations</h2>
<h3 id="definition-of-copyright">Definition of copyright</h3>
<p>FSFE believes that there is an important distinction to be made
between private property and the so-called “intellectual property”.
The latter, by being made of non-rival goods, can be shared endlessly
without diminishing the intellectual wealth of the original creator. As
such, the possibility of wider distribution will not only benefit creators
but will also generate a higher degree of innovation. This distinction,
still present in most international treaties, is only partially represented
by the final version of the report
<a class="fn" id="fnref1" href="#fn1">1</a>. This confusion is one of
the reasons why we believe that the expression “intellectual property”
should be avoided and possibly eliminated altogether from the legal
<p>Several articles<a href="#fn2" class="fn" id="fnref2">2</a> also take
a worrisome approach by implying that copyright protection is the only
way to generate revenues and thus to foster creativity. While it is
important to recognise proper remuneration to authors, we believe that
copyright only results in a higher degree of creativity when the
limitations to reproduction are balanced by an appropriate amount of
allowed usages. This equilibrium is found by allowing a decent degree of
reuse, so that creators can build upon the work of their predecessors.
While this is always possible due to Free Software licences, the whole
community would benefit from a higher degree of reusability of all existing
code, regardless of the licence it was distributed under.</p>
<h3 id="technological-neutrality">Technological neutrality</h3>
<p>The Report seems to incorporate the principle of technological
neutrality. This should ensure that all rights will be available, for
authors, publishers and users, regardless of the technology applied.
Article 64 expressly calls for a technologically neutral legislative
framework, promoting equivalence between analogue and digital usage.
This principle may have a positive impact on
<a href="#technological-neutrality-and-the-open-norm">copyright exceptions</a>
and <a href="#digital-rights-management">Digital Rights Management</a>
(DRM), but it will depend on how it will be concretely implemented in
<h3 id="copyright-and-borders">Copyright and borders</h3>
<p>While the Commission seems to push towards a deeper harmonisation of
the digital market that will include a reform of at least some aspects
of copyright and related rights, the European Parliament could not take
a definitive stance, with different articles pointing in different
directions. It is not clear if this will directly impact software, but
the current fragmented copyright legislation surely does not help with
providing the clearest and most uniform environment for those licences
that are interpreted according to European jurisdictions.</p>
<h2 id="exceptions">Exceptions</h2>
<p>FSFE was also supporting reform of copyright exceptions. The report
makes some interesting points on this topic.</p>
<h3 id="uniformity-of-exceptions">Uniformity of exceptions</h3>
<p>The draft report asked for uniform rules across the EU for the
interpretation of exceptions and limitations. We supported that view
because currently a marked divergence in implementation among member
states creates considerable friction in the EU internal market. This
friction disproportionately affects individuals, smaller projects and
small and medium-sized enterprises, all of whom often lack the necessary
legal resources to ensure that their actions remain within the area
covered by copyright limitations and exceptions.</p>
<p>The report, as approved by the Parliament, takes a far weaker stance
by asking for harmonisation and minimum standards only for <em>some</em>
exceptions<a href="#fn3" class="fn" id="fnref3">3</a>. This partial
improvement is not satisfactory, as it will not solve the main problem
of the “InfoSoc” directive, which failed to deliver a properly harmonized
copyright system. Maintaining different classes of exceptions (such as
completely harmonised, harmonised to a minimum standard, optional to
State discretion) will only make the the copyright system more
complicated for all parties involved.</p>
<h3 id="waivability-of-exceptions">Waivability of exceptions</h3>
<p>An interesting addition to the final report renders exceptions
unwaivable by contract<a href="#fn4" class="fn" id="fnref4">4</a>. This
will make it easier to know what rights the user has, regardless of the
specific content of the licence (free or proprietary). Furthermore, the
final report asks to make it impossible to restrict contract access to
information that is not covered by copyright or another similar right.
This should result in an higher availability of information otherwise
unduly kept secret. As such, it is a welcomed improvement.</p>
<h3 id="technological-neutrality-and-the-open-norm">Technological
neutrality and the open norm</h3>
<p>The principle of technological neutrality, as stated above, is most
clearly applied with regard to exceptions. We support a reform of the
Copyright Directive that would ensure equal application of exceptions
in both the digital and the analogue domains. The current
report<a href="#fn5" class="fn" id="fnref5">5</a> asks the Commission to
revise copyright exceptions to better adapt them to the current
technological environment, and to achieve both technological neutrality
and better compatibility through the interpretation of current exceptions.</p>
<p>The final report<a href="#fn6" class="fn" id="fnref6">6</a> proposes
to achieve technological neutrality through a wider interpretation of the
current exceptions, keeping the Berne three-step-test as a guide to
prevent excessive expansion. This option was presented in the draft
report and would introduce an important element of adaptability into the
reformed legislation, providing clear guidance to courts on how to
interpret exceptions and limitations. In the face of a rapidly evolving
technological environment, an open norm would ensure that the EU’s
copyright law remains relevant and viable in the long term. We supported
this proposition before and we now welcome the result achieved by the
European Parliament.</p>
<h3 id="text-and-data-mining">Text and data mining</h3>
<p>Some copyright holders argue that users need a different licence to
extract information from a copyrighted work with the help of software
tools. FSFE would consider any such imposition highly detrimental to
creativity. The mere fact that digital documents are more amenable to
automated analysis is certainly not a sufficient reason to treat them
differently from analogue ones.</p>
<p>Automated analysis of texts and datasets is elementary to many web
services that most European citizens rely on every day. The need for an
additional licence for text and data mining would enormously increase
the costs of creating new works based on existing ones. It would also
introduce an additional layer of friction. Most damaging would be the
opportunity costs of such a requirement in terms of works that will
never be created.</p>
<p>The draft report asked for a simpler framework that explicitly
included the right to extract data into the right of access to a
protected work. The Parliament did not go far enough on this point, and
it only asked the Commission to consider this
issue<a href="#fn7" class="fn" id="fnref7">7</a>, thus leaving it
<h2 id="digital-rights-management">Digital Rights Management</h2>
<p>Currently some rights holders use Digital Restrictions Management
(or Digital Rights Management; DRM for short) to technically
constrain what users can do with the works they have lawfully
acquired. Very frequently, these measures prevent people from using
the work in question in ways that are entirely covered by copyright
exceptions and limitations.</p>
<p>In addition, these technological
measures often transmit data to rights holders or third parties
without the knowledge or active consent of the user, which presents
a grave risk to the users’ privacy and autonomy. When applied to
devices, DRM in effect imposes constraints on the owner which are
often so grave as to give rise to significant concerns about
consumers’ rights<a href="#fn8" class="fn" id="fnref8">8</a>.</p>
<p>The draft report aimed to resolve these issues by mandating
publication of the source code of technological protections. The
final report falls short on that, even if it achieves some
improvements. The explicit requirement for source code has been
unreasonably expelled, substituted by publication of “all available
information concerning the technological measures necessary to
ensure interoperability”<a href="#fn9" class="fn" id="fnref9">9</a>,
and a reference to better interoperability in software and terminals
<a href="#fn10" class="fn" id="fnref10">10</a>. These provisions
will help Free Software developers to create programs that can
access protected content, but improvements on users’ privacy and
safety will only be indirect and conditioned to the development of
Free Software alternatives, as the proprietary version of the access
control technology will not be subject to public scrutiny.</p>
<p>The report took another step against DRM<a href="#fn11" class="fn"
id="fnref11">11</a> by stating that the private copy exception cannot
be limited by technological measures (if compensation to the author
is granted). We welcome this explicit protection of the private copy
exception, but we have to point out that DRM is hindering all
exceptions. While it is possible to argue that not all exceptions
deserve the same degree of protection, it should be kept in mind
that some deserve at least the same degree granted to private copy
(i.e. exceptions for libraries) and that, in any case, further
fragmenting exceptions will cause confusion on what rights the users
<p>A ray of hope may be found in the principle of
technological neutrality: if the same acts that users can legally
perform in the analogue environment should be considered legal in
the digital one, then DRM technology should not be allowed to hinder
any exception. The Parliament was not very explicit, but such a
reading of the text seems justified and we hope that the proposal
from the Commission will actively support this interpretation.</p>
<h2 id="public-domain">Public domain</h2>
<p>As we already stated, public domain is an important resource for
everyone that creates original works. Creativity does not happen in a
vacuum, but draws on a multitude of inputs and influences. The public
domain - works that are not covered by copyright and can be used freely
- is a particularly rich reservoir of such inputs. Safeguarding and
possibly extending the public domain is essential to enable future
creativity. Authors should have the option to publish their works
directly into the public domain, if they wish to do so.</p>
<p>Here the report goes into the right direction, as article 31 calls
for a better protection of the public domain and asks the Commission to
consider giving authors the possibility to directly contribute to
it. Furthermore, it explicitly states that works that were once in
public domain cannot be appropriated again by digitisation.</p>
<h3 id="works-created-with-public-funds-should-be-available-to-the-public">Works
created with public funds should be available to the public</h3>
<p>Point 5 of the draft report required that any work produced
by public bodies (legislative, administrative and judicial) had to
be made available to the public for use and modification. We
suggested to explicitly include software produced with public funds
into that list, and that this objective would be best achieved by
the use of Free Software licences. However, the current article 30
presents a far weaker claim; even if its formulation does not have a
negative effect on Free Software, it does not mandate for software
developed for the public administrations to be released under a Free
Software licence. Thus, the Parliament lost a chance to stop an
incredible waste of public resources.</p>
<h2 id="linking">Linking</h2>
<p>In the draft report there was a proposition to clearly
state that hyperlinks cannot be considered “communication to a new
public” for the purposes of copyright law. We strongly agreed with
this proposal, because such a qualification would heavily limit
freedom of expression without providing any advantage to authors.
Moreover, a World Wide Web burdened with such a risk would be far
less dynamic, and thus stifled in its innovative force.</p>
<p>Facing various amendments that tried to bring links under copyright
protection, the whole subject was excluded from the final version,
thus avoiding the risk of a final report asking for a legislative
framework even less suited to the current technologies. We cannot
comprehend of how such a simple issue, one that is fundamental to
the existence of the Internet as we know it, could generate that
amount of controversy and still end up ignored. This behaviour
results in postponing the decision, or (more likely) implicitly
delegating it to the European Court of Justice.</p>
<h2 id="conclusion">Conclusion</h2>
<p>Even if the report proposes some
improvements to the current legislative framework, it presents
various setbacks from the original drafts and does not manage to
completely solve the major problems with the current copyright
legislation. The next step is for the Commission to publish their
proposal for copyright reform (expected by the end of 2015). We want
the Commission to push forward on the path opened by the Parliament,
and take it even further by improving on the most critical points.
We ask them to make it clear that no exception to copyright should
be ever limited by DRM, to provide for a fully harmonised set of
exceptions, to strengthen the principle of technological neutrality
and to make all works that are publicly founded part of the pubic
domain. Finally, we ask to maintain and strengthen the distinction
between physical property and the so-called “intellectual property”,
as it is essential to the fair spread of knowledge.</p>
<h2 id="fn">Footnotes</h2>
<li id="fn1">See Recital K and article 50<a href="#fnref1"></a></li>
<li id="fn2">Articles 1, 4, 5, 7, 19<a href="#fnref2"></a></li>
<li id="fn3">articles 37 and 38<a href="#fnref3"></a></li>
<li id="fn4">Article 61<a href="#fnref4"></a></li>
<li id="fn5">Articles 35 and 43<a href="#fnref5"></a></li>
<li id="fn6">Article 43 and 44<a href="#fnref6"></a></li>
<li id="fn7">Article 48<a href="#fnref7"></a></li>
<li id="fn8">You can find more information on how DRM restricts user
rights at <a href="">defective by
design</a>, on <a href=""></a>, in
<a href="">this
post</a> from our fellowship or by checking
<a href="">our articles</a>
on the subject.<a href="#fnref8"></a></li>
<li id="fn9">Article 62<a href="#fnref9"></a></li>
<li id="fn10">Article 63<a href="#fnref10"></a></li>
<li id="fn11">Article 57<a href="#fnref11"></a></li>
<sidebar promo="our-work">
<h2>Table of Contents</h2>
<li><a href="#intro">Introduction</a></li>
<li><a href="#general-considerations">General considerations</a></li>
<li><a href="#exceptions">Exceptions</a></li>
<li><a href="#public-domain">Public Domain</a></li>
<li><a href="#linking">Linking</a></li>
<li><a href="#conclusion">Conclusion</a></li>
<h2>Related links</h2>
<li><a href="/activities/policy/eu/20150605-Comments-On-Reda-Report.en.html">Our
assessment of the first draft of the Report</a></li>
<li><a href=";reference=P8-TA-2015-0273&amp;language=EN">The report</a></li>
<li><a href="">Julia Reda's evaluation</a></li>
<li><a href=""></a></li>