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FSFE's comments on Reda's Report

Introduction

The Free Software Foundation Europe is an independent non-governmental organisation working to put people in control of the technology they use. We focus on Free and Open Source Software (FOSS): computer programs which anyone may use, study, share and improve.

Free Software has made great strides over the past three decades. Today, Free Software powers 8 out of 10 of the world's financial transactions; 98% of the supercomputers around the world; and the servers behind Google, Amazon and Facebook. Free Software is what drives the Large Hadron Collider and the International Space Station, as well as 700,000 TVs and 1.3m Android phones and tablets sold every day.

What sets Free Software apart is the particular way in which it makes use of copyright. Software authors receive copyright in their works; they may then decide to distribute those works under a Free Software license¹

By putting industry-grade tools at the disposal of anyone with a computer and an internet connection, Free Software is crucial in enabling equal participation in the information society. By removing barriers to entry, Free Software ensures a dynamic and competitive IT market, and opens up great opportunities for the small and medium enterprises that form the backbone of Europe's economy. It empowers users to take control of the computers they use - be they desktops, mobile phones or TVs -, and enables them to learn about the functioning of these devices. Free Software is also essential for creating encryption tools such as GnuPG that verifiably protect the privacy of Europe's citizens in an age of mass surveillance.

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. We, like all other Europeans, need legislators to view copyright as one of many tools in the toolset of innovation policy. This implies taking seriously the interests of users, and shaping the new rules based on hard evidence.

Finally, we would like to recall the huge number of responses submitted by citizens and organisations to the Commission's recent public consultation on copyright reform. We urge the Parliament to ensure that the Commission takes these responses fully into account as it moves towards a proposal for a reform of the Copyright Directive.

On the public domain

The public domain is an important resource for people who create original works. Creativity does not happen in a vacuum; it draws on a multitude of inputs and influences. The public domain - works not covered by copyright, which 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 to the public domain, if they wish to do so.

We ask you to support point 6 of the report, and reject amendments 252 to 260. Similarly, any amendment that would further upset the balance between common and restricted knowledge should be opposed.

Works created with public funds to be made available to the public

Point 5 of the report requires that any work produced by public bodies (legislative, administrative and judicial) is made available to the public for use and modification.

In FSFE's view, non-rival or intangible assets (such as documents, data and software) created with public funds should be made available for use to the public. We suggest that point 5 of the report should be clarified to explicetly include software produced with public funds. This approach has been successfully used as a policy measure to promote regional development in different parts of Europe, such as Spain's Andalusia region.

The legislator's main objective here should be to ensure that these programs remain available to the public in the long term. Free Software (open source) licenses such as the EUPL or the GPL, which grant unlimited rights to use, study, share and improve a program, are a logical choice in support of this goal.

Point 5 of the report points in the right direction. As this approach moves into the legislative process, we ask you to ensure that software produced with public funds is either released under a Free Software license, or exempted from copyright protection in such a way that it enters the public domain immediately.

Exceptions & Limitations

FSFE is supportive of points 8 to 24 of the report, covering copyright exceptions and limitations. We particularly wish to highlight the following points:

A reform of the Copyright Directive should explictely ensure that exceptions and limitations apply equally in both the digital and the analogue domains (point 9 in the report).

The reform also needs to create uniform rules across the EU on the interpretation of exceptions and limitations. Currently, a marked divergence in implementation among member states creates considerable friction in the Union's 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. (Points 10 and 11 in the report.)

In line with point 13 of the report, we further support the proposal to create an open norm in line with the Berne three-step test. This would introduce an important element of adaptability into the reformed legislation. It would provide 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 ask you to support amendment 376, and to reject amendments 367 to 373, 375, and 377 to 380. Please consider that the CULT committee is in favour of this improvement and believes that it would have great relevance for cultural institutions.

Linking

A recent decision of the EUCJ (decision of the 2014-02-13 in case C-466/12) raises the possibility for links on the World Wide Web to be considered as infringing copyright, if they lead to the “communication to a new public” of a work.

A link is nothing more than a way to identify a location on the World Wide Web. It is a reference, not an act of distribution, and should not be treated as such.

A World Wide Web burdened with the risk of infringing copyright by the simple act of providing a link would be far less dynamic, and thus stifled in its innovative force. Links serve as reference for documents available on the internet: researchers, students and companies use them everyday in their works. To allow copyright to expand from protecting the work to protecting mentions of the work itself is, therefore, a dangerous path to follow for the global innovation process in Europe. Such a step would also inevitably lead to a divergence between copyright law and actual practice, posing the risk of a grave loss of credibility in the former.

In order not to endanger the continued functioning of the World Wide Web (or, more likely, condemn the EU's copyright legislation to irrelevance on this point), we urge you to support the point 15 of the current report, and to reject amendments 397, 398, 400 to 405 and 407 to 409.

Text and data mining

Regarding text and data mining, the report asks for a simpler framework, where the right to access a protected work includes the right to extract data from it. This has long been considered self-evident in the analogue context, since copyright protects only the expression of a work, rather than the content.

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. This would also breach the basic principle of copyright rules being equally applied in both the digital and the analogue domains. The mere fact that digital documents are more amenable to automated analysis certainly is not a sufficient reason to treat them differently from analogue ones.

Automated analysis of texts and datasets is elementary to many web services that most European citizens have come to rely on every day. Not only do search engines and similar services rest on this technique. The rapidly growing open data ecosystem also depends entirely on the capability of analysing datasets without needing additional permission. This has already resulted in a multitude of useful applications. The OpenSpending project to make government spending transparent is just one of many examples. Websites like IMDb or Allocine use it everyday to gather data, provide quotations of famous critics and provide an average quality rating of movies.

The need for an additional license 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 are never created.

In order to avoid stifling the creation of many more applications that improve citizens' everyday lives, and in line with point 18 of the report, we ask you to reject amendments 441, 444 and 446.

Digital Rights Management

Currently some rightsholders use Digital Restrictions Management (or Digital Rights Management; DRM for short) to artificially constrain what users can do with the works they have acquired. Very frequently, these measures prevent people from using the work in question in ways that are entirely covered by copyright exceptions and limitations.

In addition, these technological measures often transmit data to rightsholders or third parties without the knowledge or active consent of the user, presenting a grave risk to the user's 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.

Points 23 and 24 of the report are aimed at resolving these issues. Publication of the source code of technological protections is the first step towards interoperability and will let users verify that their privacy remains protected. However, it is essential that both points are adopted. Point 23 without the concrete measures provided by the point 24 would be a mere declaration of intent.

This is why we ask you to reject all the amendments seeking to reduce the significance of one or the other. In particular, this concerns amendments 529, 530, 533 and 539 to 551.

We would also specifically like to warn against the adoption of amendment 531, which portrays DRM as a tool to balance the interests of authors and users. This is misleading; in fact, DRM gives the rightsholder (not necessarily the author) unrestricted power to deprive users of the rights afforded to them under copyright's exceptions and limitations.

Conclusion

In today's digital society, most of Europe's citizens are both creators and users at the same time. They require and deserve copyright rules that are realistic and in line with the way they go about their work every day. They need rules that not only offer potential rewards for creative work, but that also allow them access to materials that can serve as input to their creativity. Europe's citizens also deserve to truly own and control the devices on which they access the works they pay for, free of burdensome restrictions. We rely on you to help create copyright rules for the 21st century. FSFE remains available to provide further input and advice.