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								    <title>Assessment of the report on the implementation of the InfoSoc

								    directive</title>

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								<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="/news/2015/news-20150605-02.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

								language.</p>


								<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

								legislation.</p>


								<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

								unsolved.</p>


								<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

								have.</p>


								<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>

								<ol>

									<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="http://www.defectivebydesign.org/">defective by

									design</a>, on <a href="http://drm.info">drm.info</a>, in

									<a href="https://blogs.fsfe.org/eal/2013/05/03/digital-and-physical-restrictions-on-your-own-device/">this

									post</a> from our fellowship or by checking

									<a href="/tags/tagged.html#nDRM">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>

								</ol>

								</body>


								<sidebar promo="our-work">

									<h2>Table of Contents</h2>

									<ul>

										<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>

									</ul>

									<h2>Related links</h2>

									<ul>

										<li><a href="/news/2015/news-20150605-02.html">Our

										assessment of the first draft of the Report</a></li>

										<li><a href="http://www.europarl.europa.eu/sides/getDoc.do?type=TA&amp;reference=P8-TA-2015-0273&amp;language=EN">The report</a></li>

										<li><a href="https://juliareda.eu/2015/06/reda-report-adopted-a-turning-point-in-the-copyright-debate/">Julia Reda's evaluation</a></li>

										<li><a href="http://copywrongs.eu/">Copywrongs.eu</a></li>

									</ul>

								</sidebar>


								<tags>

								  <tag key="front-page"/>

								  <tag key="drm">DRM</tag>

								  <tag key="policy"/>

								  <tag key="european-parliament">European Parliament</tag>

								  <tag key="public-administration">Public Administration</tag>

								</tags>


								</html>