352 lines
18 KiB
HTML
352 lines
18 KiB
HTML
<?xml version="1.0" encoding="UTF-8"?>
|
||
|
||
<html newsdate="2015-09-18">
|
||
<version>1</version>
|
||
|
||
<head>
|
||
<title>Assessment of the report on the implementation of the InfoSoc
|
||
directive</title>
|
||
</head>
|
||
|
||
<body>
|
||
|
||
<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&reference=P8-TA-2015-0273&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>
|