2004-10-31 Consultation on the review of EU legislation on copyright and related rights,
early draft for submission
1. Commercial use and access of public data
Many public agencies provide free accessible databases. The legal right for alternative commercial services to use such public data.
For example, German Job search engines, Commercial or non-commercial webservices currently may not access the job database of the German Federal Agency for Employment. Similarly, the German Bundesamt für Statistik copyrights its collected data.
Freeing up of information in public databases is crucial to enable competition in our single market. Public databases often rely on inefficient access tools provided by Goverment agencies that run them. These tools often become bottlenecks, and provide little interoperability. Reuse of such data sources for commercial and non-commercial purposes shall not be restricted. Discrimination against private access to public data does not serve competition in the internal market.
2. Use of open standards by public agencies
To enable easy access of public data usage of Open Standards shall be promoted. Open Standards enable interoperability.
3. Undermining copyright by patents
"Also, in a situation where the right holder can rely upon both the copyright and sui generis right protection, it would seem inconsistent that a statutory exception regarding the copyright protection could be undermined by a claim based on the sui generis protection."
In particular, Software patents often undermine copyright of software products. Conflicts between different field of IP legislation should be further analysed.
4. Software as a field of technology?
"However, it should be noted that such a definition computer programs might not keep up with the pace of technology and would risk excluding new, presently unknown types of computer programs from the scope of protection."
Data Processing and Computer programs do not belong to a field of 'technology'. Furthermore, they are no different from literary works. This means that special regulation is not needed.
It is currently difficult to make a destinction between different kind of works and to decide what legislation applies. For example, is an eBook a Book, data or part of a program? Similarly, is the introduction sequence in computer game part of the computer program or a film. This ambiguity means that special treatment for computer software as "technology" is not only unreasonable but unworkable.
5. Right of communication to the public
Esp. the draft EU-Directive on the patentability of computer-implemented inventions could restrict the freedom of publication. see:
6. Promote Interoperability
"2.2.1.3. Decompilation The objective of Article 6 on decompilation is to ensure the ability of two or more computer hardware devices or software components to connect, exchange information and work together, including those of different manufacturers."
This is needed to ensure interoperability. 2.2.1.3 shall be named "Interoperability"
"However, more recently it has been argued that the scope for decompilation is in practice too limited and does not sufficiently meet the objectives of the provision and, in particular, the current market demands. On the other hand, as yet there is no jurisprudence to support these claims; nor is there any other evidence to suggest that there would be a need for revision."
Jurisprudence lack competence to set law. So it is irrelevant for a law-making process.
7. Protection of technological measures
Consider problems of archiving and forensic data recovery. Technological changes could mean that data protected by such protection devices become inaccessible as the original device becomes obslete. For the preservation of our digital heritage this is crucial.
The protection has further unintended consequences when it may be used by rights-holders to gain control over legitimately purchased media and content over and above that granted by copyright law. This leads to distortions in the market against the interests of consumers, developers and SMEs. One example relates to the region locks and encryption mechanisms on DVDs and computer games.
Protection of technological measures should apply only to the extent that they protect against actual copyright infringement. The protection should be forfeited where it is being misused, for example to prevent legitimate competition and trade. European copyright law should define positive fair-dealing rights, including rights such as private backup, time-shifting and space-shifting, which cannot be over-ridden by contract or technology.
8. Duration of copyright protection
"The term of protection for authors rights was set to run until 70 years after the death of the author, and the term of protection for related rights until 50 years after the event which triggers the term running (such as the date of the performance). There has been a call from certain circles to extend the term of protection of related rights and align it to that of an author since performances are claimed to provide a similar element of creativity. There has also been a specific concern expressed when the performer is also the author of the music as this results in the same persons performance falling into the public domain before the work itself."
Please consider the prolongation lock-in. To provide an incentive the duration has to be adjusted to the economically relevant period of time. On the the one hand 70 years are already economically irrelevant to provide an incentive for businesses, on the other hand creative derivative works face high transaction cost with a too long period of protection. Public domain creates a lot of opportunities for businesses to make profit from recycling old works.
"Moreover, in view of the recent changes to the term of protection under the US Copyright Act, it has been argued by some stakeholders that it would be advisable to align the term of protection of phonogram producers in the Community with the new, extended protection of 95 years from the year of first publication for sound recordings in the USA. Otherwise, according to the proponents of change, European music producers and music industry might be at a disadvantage as compared to their US equivalents."
Again: 95 years is not the period which is relevant for business decisions today. In many dynamic industries such as the software business 15 year old software is a matter of history. Furthermore litigation action by failed companies who exploit their old rights portfolio may be seen as a serious treath to competition. See the SCO vs. IBM case in 2003, Sco claimed to own UNIX based on 30 year old code.
We don't see a reason why a prolongation ex-post would provide any incentive for businesses as only historic works are covered that are already there. So only the rightholders would benefit. Furthermore the trust in legislation is undermined when expiration dates are extended again and again.
There is no good reason to assume that the Euiropean system may cause a disadvantage.
9. Preserving of intangible digital heritage
"2.2.4.2. Exception for the benefit of libraries" Make sure that Digital Rights Management devices and the legal provisions of protection thereof will no render this stated goal useless as nobody may access the works anymore locked down in forgotten proprietary formats.
10. "3.2 Ownership"
"From the point of view of the functioning of the Internal Market, perhaps the most significant uncertainty regarding the ownership of rights in cross-border situations arises from differences in rules on the ownership of works created in the course of employment." Ownership can be shifted over time. It est rights given on the basis of a work contract will expire earlier and be granted back to the author who enjoys them for the rest of time.
11. Interoperability
Interoperability exceptions in legislation are not enough. In oder to enable Free Competition in the internal market interoperability has to be actively enforced. Esp. public organisations shall be commited towards the usage of Open Standards to ensure interoperability of data. There is still no harmonisation of positive interoperability enforcement.
12. Rights of Authors
Authors shall enjoy the right to lessen the scope and duration of the protection covering their works. FFII affirms the teaching of author's rights according to the Berne Convention and rejects the Anglo-Saxon teaching of 'copy right'.
13. Free Software act
Given the importance of Free and Open Source Software for the Internet Infrastructure (91 per cent of .de-Websites run Open Source Apache Webserver etc.) legal certainty for the various licenses has to be explicitely approved in order to reduce market insecurity. All of then rely on copyright and many of them are accepted by common use. However, given the fact that many of them were written under US law it was doubted they were valid. Creation of national tailored free software licenses failed as they were not able to interoperate with international standard licenses and thus not adopted. Lawyers approved validity of many free software licences, but only a free software act can sent a clear message to the European market and reduce market insecurity.
About FFII:
The Foundation for a Free Information Infrastructure (FFII) is a non-profit association registered in Munich, which is dedicated to the spread of data processing literacy. FFII supports the development of public information goods based on copyright, free competition, open standards. More than 500 members, 1000 companies and 70000 supporters have entrusted the FFII to act as their voice in public policy questions in the area of exclusion rights (intellectual property) in data processing.
