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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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<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="/news/2015/news-20150605-02.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="/tags/tagged.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="/news/2015/news-20150605-02.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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<tags> |
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<tag key="front-page"/> |
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<tag key="drm">DRM</tag> |
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<tag key="policy"/> |
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<tag key="european-parliament">European Parliament</tag> |
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<tag key="public-administration">Public Administration</tag> |
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</tags> |
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</html>
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