Re: [Fsfe-uk] European Parliament:OSS & enforcement directive (from fsfe-ie)

[MJ Ray]

On 2004-02-29 21:29:50 +0000 James Heald <address@hidden> wrote:

> Anyone from AFFS feel like stepping up to the plate ?

Here's my first draft. Please mangle as appropriate to get something 
sensible and I'll try to incorporate changes:-

We believe this directive will harm free software creation in EU 
member states. Please consider the points below and reject this 
proposed directive until it addresses them properly. We encourage you 
to consult the European organisations the Campaign for an Open Digital 
Environment (CODE, who are holding an event in Strasbourg on 8 March), 
the Foundation for a Free Information Infrastructure (FFII) and the 
Free Software Foundation Europe (FSFEurope).

1. No support for interoperability:

Some supporters claim that the directive supports interoperatibility 
and free software, but their own statements do not agree with that 
view. They admit that this proposed directive does nothing to build on 
existing reverse engineering rights. It merely doesn't reduce existing 
rights, which isn't really active support.

2. Misunderstanding of effects on free software development:

Supporters also claim "enforcement of IPRs is good for OSS developers 
just as it is for commercial software developers" (Mme Fourtou, JURI 
rapporteur).  We are worried to see Open Source Software (a longer 
definition roughly equivalent to free software) used as an opposite to 
commercial. This shows a lack of understanding of the field and 
suggests their opinion about effects on software may not be valid. 
Commercial developers of free software are vital to this sector of the 
economy in member states. While we welcome those developers being able 
to enforce their licences, we feel that free software developers are 
left vulnerable and disadvantaged by this directive.

3. Damage to customer relationships:

Many free software development businesses depend on their 
relationships with their clients. The powers to demand disclosure of 
extensive commercial and personal information before a case is heard 
will weaken those relationships and harm the business sector.

4. Insufficient safeguards:

The safeguards are insufficient to prevent abuse. When a corporation 
is defending against a spurious allegation, it may find itself wound 
up before any of the post-case compensation is available to it, 
because of the ability to seize assets and prevent activities 
essential to business operation before a defence is heard, let alone 
disproven. The ability to hear a preliminary case swiftly seems far 
better than acting as if the defendant is guilty when an allegation is 
made.

5. Applies to private individuals:

We also feel that the omission of the term "on a commercial scale" 
from key parts of this directive disadvantages private individuals 
developing free software by exposing them to articles 7.1, 8 and 10a. 
Use of those provisions against individuals is likely to see many
abandon free software development and this will harm the 
not-for-profit sector disproportionately. The not-for-profit sector 
was not the original target of this directive.

The most effective safeguard for both the not-for-profit sector and 
legitimate commerce would be to restrict the directive to its original 
scope of commercially organised recklessly intentional copyright and 
trademark infringement.

6. Further consultation required:

On correcting this directive, we agree with the House of Lords 
European Scrutiny Committee E that a broader range of stakeholders 
should be consulted on the likely effects. The current proposed 
directive aims to replicate the highest level of protection for any 
case in any member state, without regard to the harm caused to 
competition (for corporations) or human rights (for private 
individuals).

7. Need to split IPR into constituent topics:

It seems impossible to have a single good directive harmonising all of 
the diverse laws usually grouped under "Intellectual Property Rights". 
Each field of copyright, patenting, trademarks, designs and trade 
secrets should be analysed and dealt with individually. It appears 
likely that only some of those fields have significant discrepencies 
between member states and different corrective measures will be 
appropriate for each.


We regret that this response is not as detailed as we would like, but 
the draft text was only published on 17 February and many EU free 
software developers were occupied with the Free and Open Source 
Developers Meeting (FOSDEM) in Brussels.

--
MJR/slef     My Opinion Only and possibly not of any group I know.
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