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
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directive</title>
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<p id="category"><a href="/work.html">Our work</a></p>
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<h1 id="assessment-of-the-report-on-the-implementation-of-the-InfoSoc-directive">Assessment
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of the report on the implementation of the InfoSoc directive</h1>
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<h2 id="introduction">Introduction</h2>
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<p>The 6th of June, this year, we proposed
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<a href="/activities/policy/eu/20150605-Comments-On-Reda-Report.en.html">our
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own assessment</a> of the draft report on the implementation of Directive
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2001/29/EC. Afterwards, some amendments were passed and the report was
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voted at the European Parliament on the 9th of July. As expected, there
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were plenty of changes; today we present you our evaluation of the final
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version of the report.</p>
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<p>As we stated before, Free Software’s dynamic ecosystem and its
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remarkable achievements have their foundation in copyright law. For this
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reason, we, at FSFE, are keen to support a reform of Europe’s copyright
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legislation. We want and need copyright to be future-proof, sustainable
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and realistic. The European people need their legislators to view copyright
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as one of many tools in the toolset of innovation policy. This implies
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taking the interests of users seriously, and shaping the new copyright
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rules on hard evidence. Concretely, we require uniform copyright exceptions
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that are not defined by the use of a specific technology and that are
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not unjustly limited by technological protection measures. We also ask
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the European Union to recognize the need for a stronger public domain,
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not only for artistic and literary works, but also for software. All of
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these points were addressed in the final version of the report, although
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not always as much as we would have liked.</p>
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<h2 id="general-considerations">General considerations</h2>
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<h3 id="definition-of-copyright">Definition of copyright</h3>
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<p>FSFE believes that there is an important distinction to be made
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between private property and the so-called “intellectual property”.
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The latter, by being made of non-rival goods, can be shared endlessly
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without diminishing the intellectual wealth of the original creator. As
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such, the possibility of wider distribution will not only benefit creators
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but will also generate a higher degree of innovation. This distinction,
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still present in most international treaties, is only partially represented
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by the final version of the report
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<a class="fn" id="fnref1" href="#fn1">1</a>. This confusion is one of
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the reasons why we believe that the expression “intellectual property”
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should be avoided and possibly eliminated altogether from the legal
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language.</p>
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<p>Several articles<a href="#fn2" class="fn" id="fnref2">2</a> also take
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a worrisome approach by implying that copyright protection is the only
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way to generate revenues and thus to foster creativity. While it is
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important to recognise proper remuneration to authors, we believe that
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copyright only results in a higher degree of creativity when the
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limitations to reproduction are balanced by an appropriate amount of
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allowed usages. This equilibrium is found by allowing a decent degree of
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reuse, so that creators can build upon the work of their predecessors.
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While this is always possible due to Free Software licences, the whole
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community would benefit from a higher degree of reusability of all existing
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code, regardless of the licence it was distributed under.</p>
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<h3 id="technological-neutrality">Technological neutrality</h3>
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<p>The Report seems to incorporate the principle of technological
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neutrality. This should ensure that all rights will be available, for
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authors, publishers and users, regardless of the technology applied.
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Article 64 expressly calls for a technologically neutral legislative
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framework, promoting equivalence between analogue and digital usage.
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This principle may have a positive impact on
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<a href="#technological-neutrality-and-the-open-norm">copyright exceptions</a>
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and <a href="#digital-rights-management">Digital Rights Management</a>
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(DRM), but it will depend on how it will be concretely implemented in
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legislation.</p>
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<h3 id="copyright-and-borders">Copyright and borders</h3>
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<p>While the Commission seems to push towards a deeper harmonisation of
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the digital market that will include a reform of at least some aspects
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of copyright and related rights, the European Parliament could not take
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a definitive stance, with different articles pointing in different
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directions. It is not clear if this will directly impact software, but
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the current fragmented copyright legislation surely does not help with
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providing the clearest and most uniform environment for those licences
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that are interpreted according to European jurisdictions.</p>
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<h2 id="exceptions">Exceptions</h2>
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<p>FSFE was also supporting reform of copyright exceptions. The report
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makes some interesting points on this topic.</p>
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<h3 id="uniformity-of-exceptions">Uniformity of exceptions</h3>
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<p>The draft report asked for uniform rules across the EU for the
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interpretation of exceptions and limitations. We supported that view
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because currently a marked divergence in implementation among member
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states creates considerable friction in the EU internal market. This
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friction disproportionately affects individuals, smaller projects and
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small and medium-sized enterprises, all of whom often lack the necessary
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legal resources to ensure that their actions remain within the area
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covered by copyright limitations and exceptions.</p>
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<p>The report, as approved by the Parliament, takes a far weaker stance
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by asking for harmonisation and minimum standards only for <em>some</em>
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exceptions<a href="#fn3" class="fn" id="fnref3">3</a>. This partial
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improvement is not satisfactory, as it will not solve the main problem
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of the “InfoSoc” directive, which failed to deliver a properly harmonized
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copyright system. Maintaining different classes of exceptions (such as
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completely harmonised, harmonised to a minimum standard, optional to
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State discretion) will only make the the copyright system more
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complicated for all parties involved.</p>
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<h3 id="waivability-of-exceptions">Waivability of exceptions</h3>
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<p>An interesting addition to the final report renders exceptions
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unwaivable by contract<a href="#fn4" class="fn" id="fnref4">4</a>. This
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will make it easier to know what rights the user has, regardless of the
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specific content of the licence (free or proprietary). Furthermore, the
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final report asks to make it impossible to restrict contract access to
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information that is not covered by copyright or another similar right.
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This should result in an higher availability of information otherwise
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unduly kept secret. As such, it is a welcomed improvement.</p>
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<h3 id="technological-neutrality-and-the-open-norm">Technological
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neutrality and the open norm</h3>
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<p>The principle of technological neutrality, as stated above, is most
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clearly applied with regard to exceptions. We support a reform of the
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Copyright Directive that would ensure equal application of exceptions
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in both the digital and the analogue domains. The current
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report<a href="#fn5" class="fn" id="fnref5">5</a> asks the Commission to
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revise copyright exceptions to better adapt them to the current
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technological environment, and to achieve both technological neutrality
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and better compatibility through the interpretation of current exceptions.</p>
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<p>The final report<a href="#fn6" class="fn" id="fnref6">6</a> proposes
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to achieve technological neutrality through a wider interpretation of the
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current exceptions, keeping the Berne three-step-test as a guide to
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prevent excessive expansion. This option was presented in the draft
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report and would introduce an important element of adaptability into the
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reformed legislation, providing clear guidance to courts on how to
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interpret exceptions and limitations. In the face of a rapidly evolving
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technological environment, an open norm would ensure that the EU’s
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copyright law remains relevant and viable in the long term. We supported
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this proposition before and we now welcome the result achieved by the
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European Parliament.</p>
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<h3 id="text-and-data-mining">Text and data mining</h3>
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<p>Some copyright holders argue that users need a different licence to
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extract information from a copyrighted work with the help of software
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tools. FSFE would consider any such imposition highly detrimental to
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creativity. The mere fact that digital documents are more amenable to
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automated analysis is certainly not a sufficient reason to treat them
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differently from analogue ones.</p>
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<p>Automated analysis of texts and datasets is elementary to many web
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services that most European citizens rely on every day. The need for an
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additional licence for text and data mining would enormously increase
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the costs of creating new works based on existing ones. It would also
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introduce an additional layer of friction. Most damaging would be the
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opportunity costs of such a requirement in terms of works that will
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never be created.</p>
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<p>The draft report asked for a simpler framework that explicitly
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included the right to extract data into the right of access to a
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protected work. The Parliament did not go far enough on this point, and
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it only asked the Commission to consider this
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issue<a href="#fn7" class="fn" id="fnref7">7</a>, thus leaving it
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unsolved.</p>
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<h2 id="digital-rights-management">Digital Rights Management</h2>
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<p>Currently some rights holders use Digital Restrictions Management
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(or Digital Rights Management; DRM for short) to technically
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constrain what users can do with the works they have lawfully
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acquired. Very frequently, these measures prevent people from using
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the work in question in ways that are entirely covered by copyright
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exceptions and limitations.</p>
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<p>In addition, these technological
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measures often transmit data to rights holders or third parties
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without the knowledge or active consent of the user, which presents
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a grave risk to the users’ privacy and autonomy. When applied to
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devices, DRM in effect imposes constraints on the owner which are
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often so grave as to give rise to significant concerns about
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consumers’ rights<a href="#fn8" class="fn" id="fnref8">8</a>.</p>
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<p>The draft report aimed to resolve these issues by mandating
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publication of the source code of technological protections. The
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final report falls short on that, even if it achieves some
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improvements. The explicit requirement for source code has been
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unreasonably expelled, substituted by publication of “all available
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information concerning the technological measures necessary to
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ensure interoperability”<a href="#fn9" class="fn" id="fnref9">9</a>,
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and a reference to better interoperability in software and terminals
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<a href="#fn10" class="fn" id="fnref10">10</a>. These provisions
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will help Free Software developers to create programs that can
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access protected content, but improvements on users’ privacy and
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safety will only be indirect and conditioned to the development of
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Free Software alternatives, as the proprietary version of the access
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control technology will not be subject to public scrutiny.</p>
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<p>The report took another step against DRM<a href="#fn11" class="fn"
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id="fnref11">11</a> by stating that the private copy exception cannot
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be limited by technological measures (if compensation to the author
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is granted). We welcome this explicit protection of the private copy
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exception, but we have to point out that DRM is hindering all
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exceptions. While it is possible to argue that not all exceptions
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deserve the same degree of protection, it should be kept in mind
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that some deserve at least the same degree granted to private copy
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(i.e. exceptions for libraries) and that, in any case, further
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fragmenting exceptions will cause confusion on what rights the users
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have.</p>
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<p>A ray of hope may be found in the principle of
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technological neutrality: if the same acts that users can legally
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perform in the analogue environment should be considered legal in
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the digital one, then DRM technology should not be allowed to hinder
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any exception. The Parliament was not very explicit, but such a
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reading of the text seems justified and we hope that the proposal
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from the Commission will actively support this interpretation.</p>
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<h2 id="public-domain">Public domain</h2>
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<p>As we already stated, public domain is an important resource for
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everyone that creates original works. Creativity does not happen in a
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vacuum, but draws on a multitude of inputs and influences. The public
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domain - works that are not covered by copyright and can be used freely
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- is a particularly rich reservoir of such inputs. Safeguarding and
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possibly extending the public domain is essential to enable future
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creativity. Authors should have the option to publish their works
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directly into the public domain, if they wish to do so.</p>
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<p>Here the report goes into the right direction, as article 31 calls
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for a better protection of the public domain and asks the Commission to
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consider giving authors the possibility to directly contribute to
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it. Furthermore, it explicitly states that works that were once in
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public domain cannot be appropriated again by digitisation.</p>
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<h3 id="works-created-with-public-funds-should-be-available-to-the-public">Works
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created with public funds should be available to the public</h3>
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<p>Point 5 of the draft report required that any work produced
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by public bodies (legislative, administrative and judicial) had to
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be made available to the public for use and modification. We
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suggested to explicitly include software produced with public funds
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into that list, and that this objective would be best achieved by
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the use of Free Software licences. However, the current article 30
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presents a far weaker claim; even if its formulation does not have a
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negative effect on Free Software, it does not mandate for software
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developed for the public administrations to be released under a Free
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Software licence. Thus, the Parliament lost a chance to stop an
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incredible waste of public resources.</p>
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<h2 id="linking">Linking</h2>
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<p>In the draft report there was a proposition to clearly
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state that hyperlinks cannot be considered “communication to a new
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public” for the purposes of copyright law. We strongly agreed with
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this proposal, because such a qualification would heavily limit
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freedom of expression without providing any advantage to authors.
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Moreover, a World Wide Web burdened with such a risk would be far
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less dynamic, and thus stifled in its innovative force.</p>
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<p>Facing various amendments that tried to bring links under copyright
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protection, the whole subject was excluded from the final version,
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thus avoiding the risk of a final report asking for a legislative
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framework even less suited to the current technologies. We cannot
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comprehend of how such a simple issue, one that is fundamental to
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the existence of the Internet as we know it, could generate that
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amount of controversy and still end up ignored. This behaviour
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results in postponing the decision, or (more likely) implicitly
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delegating it to the European Court of Justice.</p>
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<h2 id="conclusion">Conclusion</h2>
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<p>Even if the report proposes some
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improvements to the current legislative framework, it presents
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various setbacks from the original drafts and does not manage to
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completely solve the major problems with the current copyright
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legislation. The next step is for the Commission to publish their
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proposal for copyright reform (expected by the end of 2015). We want
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the Commission to push forward on the path opened by the Parliament,
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and take it even further by improving on the most critical points.
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We ask them to make it clear that no exception to copyright should
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be ever limited by DRM, to provide for a fully harmonised set of
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exceptions, to strengthen the principle of technological neutrality
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and to make all works that are publicly founded part of the pubic
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domain. Finally, we ask to maintain and strengthen the distinction
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between physical property and the so-called “intellectual property”,
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as it is essential to the fair spread of knowledge.</p>
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<h2 id="fn">Footnotes</h2>
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<ol>
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<li id="fn1">See Recital K and article 50<a href="#fnref1">↩</a></li>
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<li id="fn2">Articles 1, 4, 5, 7, 19<a href="#fnref2">↩</a></li>
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<li id="fn3">articles 37 and 38<a href="#fnref3">↩</a></li>
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<li id="fn4">Article 61<a href="#fnref4">↩</a></li>
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<li id="fn5">Articles 35 and 43<a href="#fnref5">↩</a></li>
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<li id="fn6">Article 43 and 44<a href="#fnref6">↩</a></li>
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<li id="fn7">Article 48<a href="#fnref7">↩</a></li>
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<li id="fn8">You can find more information on how DRM restricts user
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rights at <a href="http://www.defectivebydesign.org/">defective by
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design</a>, on <a href="http://drm.info">drm.info</a>, in
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<a href="https://blogs.fsfe.org/eal/2013/05/03/digital-and-physical-restrictions-on-your-own-device/">this
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post</a> from our fellowship or by checking
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<a href="http://fsfe.org/tags/tagged.en.html#nDRM">our articles</a>
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on the subject.<a href="#fnref8">↩</a></li>
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<li id="fn9">Article 62<a href="#fnref9">↩</a></li>
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<li id="fn10">Article 63<a href="#fnref10">↩</a></li>
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<li id="fn11">Article 57<a href="#fnref11">↩</a></li>
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</ol>
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</body>
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<sidebar promo="our-work">
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<h2>Table of Contents</h2>
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<ul>
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<li><a href="#intro">Introduction</a></li>
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<li><a href="#general-considerations">General considerations</a></li>
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<li><a href="#exceptions">Exceptions</a></li>
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<li><a href="#public-domain">Public Domain</a></li>
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<li><a href="#linking">Linking</a></li>
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<li><a href="#conclusion">Conclusion</a></li>
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</ul>
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<h2>Related links</h2>
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<ul>
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<li><a href="/activities/policy/eu/20150605-Comments-On-Reda-Report.en.html">Our
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assessment of the first draft of the Report</a></li>
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<li><a href="http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P8-TA-2015-0273&language=EN">The report</a></li>
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<li><a href="https://juliareda.eu/2015/06/reda-report-adopted-a-turning-point-in-the-copyright-debate/">Julia Reda's evaluation</a></li>
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<li><a href="http://copywrongs.eu/">Copywrongs.eu</a></li>
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</ul>
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</sidebar>
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</html>
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