From f7bbca8cd79c75db95e72e5b35793f197a000124 Mon Sep 17 00:00:00 2001 From: "nicola.feltrin" Date: Thu, 17 Sep 2015 14:39:41 +0000 Subject: [PATCH] Adding our evaluation of the final version of the Reda Report svn path=/trunk/; revision=31897 --- ...sessment-Of-The-Report-On-InfoSoc.en.xhtml | 344 ++++++++++++++++++ 1 file changed, 344 insertions(+) create mode 100644 activities/policy/eu/20150917-Assessment-Of-The-Report-On-InfoSoc.en.xhtml diff --git a/activities/policy/eu/20150917-Assessment-Of-The-Report-On-InfoSoc.en.xhtml b/activities/policy/eu/20150917-Assessment-Of-The-Report-On-InfoSoc.en.xhtml new file mode 100644 index 0000000000..a454244c67 --- /dev/null +++ b/activities/policy/eu/20150917-Assessment-Of-The-Report-On-InfoSoc.en.xhtml @@ -0,0 +1,344 @@ + + + + + Assessment of the report on the implementation of the InfoSoc + directive + + + + +

Our work

+ +

Assessment +of the report on the implementation of the InfoSoc directive

+ +

Introduction

+ +

The 6th of June, this year, we proposed +our +own assessment 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.

+ +

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.

+ +

General considerations

+ + + +

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 +1. 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 +language.

+ +

Several articles2 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.

+ +

Technological neutrality

+ +

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 +copyright exceptions +and Digital Rights Management +(DRM), but it will depend on how it will be concretely implemented in +legislation.

+ + + +

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.

+ +

Exceptions

+ +

FSFE was also supporting reform of copyright exceptions. The report +makes some interesting points on this topic.

+ +

Uniformity of exceptions

+ +

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.

+ +

The report, as approved by the Parliament, takes a far weaker stance +by asking for harmonisation and minimum standards only for some +exceptions3. 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.

+ +

Waivability of exceptions

+ +

An interesting addition to the final report renders exceptions +unwaivable by contract4. 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.

+ +

Technological +neutrality and the open norm

+ +

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 +report5 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.

+ +

The final report6 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.

+ +

Text and data mining

+ +

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.

+ +

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.

+ +

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 +issue7, thus leaving it +unsolved.

+ +

Digital Rights Management

+ +

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.

+ +

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’ rights8.

+ +

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”9, +and a reference to better interoperability in software and terminals +10. 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.

+ +

The report took another step against DRM11 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 +have.

+ +

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.

+ +

Public domain

+ +

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.

+ +

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.

+ +

Works +created with public funds should be available to the public

+ +

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.

+ +

Linking

+ +

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.

+ +

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.

+ +

Conclusion

+ +

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.

+ +

Footnotes

+
    +
  1. See Recital K and article 50↩
    2. +
  2. Articles 1, 4, 5, 7, 19↩
    3. +
  3. articles 37 and 38↩
    4. +
  4. Article 61↩
    5. +
  5. Articles 35 and 43↩
    6. +
  6. Article 43 and 44↩
    7. +
  7. Article 48↩
    8. +
  8. You can find more information on how DRM restricts user + rights at defective by + design, on drm.info, in + this + post from our fellowship or by checking + our articles + on the subject.↩
    9. +
  9. Article 62↩
    10. +
  10. Article 63↩
    11. +
  11. Article 57↩
    12. +
+ + + + +

Table of Contents

+ +

Related links

+ + + +