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Assessment of the report on the implementation of the InfoSoc directive

Introduction

The 6th of June, this year, we proposed our own assessment 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.

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.

General considerations

Definition of copyright

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 1. 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.

Several articles2 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.

Technological neutrality

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 copyright exceptions and Digital Rights Management (DRM), but it will depend on how it will be concretely implemented in legislation.

Copyright and borders

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.

Exceptions

FSFE was also supporting reform of copyright exceptions. The report makes some interesting points on this topic.

Uniformity of exceptions

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.

The report, as approved by the Parliament, takes a far weaker stance by asking for harmonisation and minimum standards only for some exceptions3. 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.

Waivability of exceptions

An interesting addition to the final report renders exceptions unwaivable by contract4. 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.

Technological neutrality and the open norm

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 report5 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.

The final report6 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.

Text and data mining

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.

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.

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 issue7, thus leaving it unsolved.

Digital Rights Management

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.

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’ rights8.

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”9, and a reference to better interoperability in software and terminals 10. 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.

The report took another step against DRM11 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.

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.

Public domain

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.

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.

Works created with public funds should be available to the public

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.

Linking

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.

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.

Conclusion

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.

Footnotes

1. See Recital K and article 50↩
2. Articles 1, 4, 5, 7, 19↩
3. articles 37 and 38↩
4. Article 61↩
5. Articles 35 and 43↩
6. Article 43 and 44↩
7. Article 48↩
8. You can find more information on how DRM restricts user rights at defective by design, on drm.info, in this post from our fellowship or by checking our articles on the subject.↩
9. Article 62↩
10. Article 63↩
11. Article 57↩