The European Union is considering broad reform of copyright regulations as part of a “Digital Single Market” reform agenda. Review of the current Copyright Directive, passed in 2001, began with a report by MEP Julia Reda. The European Parliament will vote on that report and a number of amendments this summer, and the process will continue with a legislative proposal from the European Commission in the autumn. Over the next few months we plan to add our voice to this debate; in some cases supporting existing ideas, in other cases raising new issues.
This post lays out some of the improvements we’d like to see in the EU’s copyright regime – to preserve and protect the Web, and to better advance the innovation and competition principles of the Mozilla Manifesto. Most of the objectives we identify are actively being discussed today as part of copyright reform. Our advocacy is intended to highlight these, and characterize positions on them. We also offer a proposed exception for interoperability to push the conversation in a slightly new direction. We believe an explicit exception for interoperability would directly advance the goal of promoting innovation and competition through copyright law.
Promoting innovation and competition
“The effectiveness of the Internet as a public resource depends upon interoperability (protocols, data formats, content), innovation and decentralized participation worldwide.” – Mozilla Manifesto Principle #6
Clarity, consistency, and new exceptions are needed to ensure that Europe’s new copyright system encourages innovation and competition instead of stifling it. If new and creative uses of copyrighted content can be shut down unconditionally, innovation suffers. If copyright is used to unduly restrict new businesses from adding value to existing data or software, competition suffers.
Open norm: Implement a new, general exception to copyright allowing actions which pass the 3-step test of the Berne Convention. That test says that any exception to copyright must be a special case, that it should not conflict with a normal exploitation of the work, and it should not unreasonably prejudice the legitimate interests of the author. The idea of an “open norm” is to capture a natural balance for innovation and competition, allowing the copyright holder to retain normal exclusionary rights but not exceptional restrictive capabilities with regards to potential future innovative or competing technologies.
Quotation: Expand existing protections for text quotations to all media and a wider range of uses. An exception of this type is fundamental not only for free expression and democratic dialogue, but also to promote innovation when the quoter is adding value through technology (such as a website which displays and combines excerpts of other pages to meet a new user need).
Interoperability: An exception for acts necessary to enable ongoing interoperability with an existing computer program, protocol, or data format. This would directly enable competition and technology innovation. Such interoperation is also necessary for full accessibility for the disabled (who are often not appropriately catered for in standard programs), and to allow citizens to benefit fully from other exceptions to copyright.
Not breaking the Internet
“The Internet is a global public resource that must remain open and accessible.” – Mozilla Manifesto Principle #2
The Internet has numerous technical and policy features which have combined, sometimes by happy coincidence, to make it what it is today. Clear legislation to preserve and protect these core capabilities would be a powerful assurance, and avoid creating chilling risk and uncertainty.
Hyperlinking: hyperlinking should not be considered as any form of “communication to a public”. A recent Court of Justice of the EU ruling stated that hyperlinking was generally legal, as it does not consist of communication to a “new public.” A stronger and more common-sense rule would be a legislative determination that linking, in and of itself, does not constitute communicating the linked content to a public under copyright law. The acts of communicating and making content available are done by the person who placed the content on the target server, not by those making links to content.
Robust protections for intermediaries: a requirement for due legal process before intermediaries are compelled to take down content. While it makes sense for content hosters to be asked to remove copyright-infringing material within their control, a mandatory requirement to do so should not be triggered by mere assertion, but only after appropriate legal process. The existing waiver for liability for intermediaries should thus be strengthened with an improved definition of “actual knowledge” that requires such process, and (relatedly) to allow minor, reasonable modifications to data (e.g. for network management) without loss of protection.
We look forward to working with European policymakers to build consensus on the best ways to protect and promote innovation and competition on the Internet.
Chris Riley
Gervase Markham
Jochai Ben-Avie