European Commission Consultation 2014 Enterprise

You work in a digital enterprise or start up

Digital technologies represent an opportunity to develop innovating services. But too often innovators are confronted by obstacles put up by current copyright legislation. Copyright rules should aim to be sufficiently flexible to support and encourage innovation and should not hamper one of the fundamental ways that the Internet functions.

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To prepare your response, we recommend that you read the following proposals:

2. Legitimacy of referring and linking

The Internet and the Web are what they are first and foremost because of the possibility to make accessible, for instance through a link, any digitally published contents, provided one knows its URL. This possibility is the contemporary equivalent of referencing published contents. Referencing accessible contents through links is an essential condition of the freedom of information and expression. The pretense of some sites that they are entitled to prevent Web users from creating deep links pointing directly on accessible contents are unacceptable attacks against the right to refer and the freedom of expression. It is worrying that some believed they were entitled to limit this right on the basis of possible losses of advertising revenue for sites. Legal cases repeatedly established the indissoluble link between publishing some content and the freedom of others to refer to it.

There is a link between this general freedom of reference and the legal recognition of the non-market sharing of digital works between individuals advocated in the previous section. In the context of such a recognition, creating directories of links to digital files making possible to practice this sharing is a legitimate activity, whether it is conducted by commercial players or not. On the contrary, centralizing digital works on a site remains within the frame of copyright, and is thus submitted to an authorization or a collective license.

One could wonder why it is necessary to state that providing information or tools for a legal activity must also be a legal activity. However, some right holders developed a very surprising theory according to which link or reference directories (such as BitTorrent trackers or servers providing links for P2P file sharing under other protocols) would constitute an exploitation of the works themselves, even though they do not store nor reproduce these works. Obviously, one must take in account the cultural or economic impact of services facilitating file sharing. However, why would the market sphere benefit from references and non-market activities be deprived from the same benefits?

11. Effective norms for the enforcement of network neutrality

For digital culture to deliver its potential, it must build on an infrastructure that is up to the challenge. We often take for granted what was actually a contingent opportunity: for 15 years, we were able to use reasonably open personal computers and a more or less neutral Internet. As information technology and the Internet disseminate in new domains and new use develops, these properties of openness and universality are seriously endangered by:

• the multiplication of devices that are controlled by proprietary players (in particular for mobile devices),
• the recentralization of services and applications,
• the attacks against network neutrality: discrimination against protocols, applications or sources; filtering and censorship; closure of devices in order to make it impossible or more difficult to go around these discriminations.

Network neutrality must now be understood as an exigence for all the chain that goes, for instance, from a mobile device such as a smartphone to a server operated by an end-user or under his or her control. European policy-makers and regulators made the disastrous choice of an attentist policy, while the evidence of harm is already present and acknowledged. Such an attentist policy amounts to accept the capture of the Internet as a common resource by the first comers or the more powerful. Up to now, only the Dutch Parliament (and in other geographic zones, Chile and Peru) adopted a network neutrallity law.

Maintaining and expanding a free common infrastructure, combining open devices and a neutral Internet, will require all the attention of the policy-makers and each of us. The lobbyists and the tears of the dominant operators of mobile telecommunication have up to now obtained the leniency of policy-makers. Let's not forget that they are responsible for a true predation on the budget of disavantaged households. The orientations of the European growth plan, elaborated in total improvisation, include a chapter on "smart networks" which should ring all the alarm bells. What we need are networks which it is smart to build, that is networks that stay efficiently stupid so that users can develop their creativity, their innovations, their sociality and their democratic processes without asking for permission to gatekeepers. As citizens, we must rise up against the resignation or leniency of policy-makers, make them accountable at each instant on what they do and what they don't do in these matters.

The intervention of legislators and regulators, as important as it is, will not suffice if we do not help it by our own choices. Let's not buy closed devices when there is a more open alternative, even if this means renouncing for a small time to some benefit in functionality or comfort (for instance for eBook readers). Let's host our precious contents and data only on our own servers or servers of trusted players who give us an excluive control on the data. Let's support projects such as the Freedom Box, and, if we feel like it, become pioneers of its usage. None of this should deprive us of the forms of use that give us new capabilities, but it means we must be more selective (ex: abstain from any presence on Facebook, make a relevant use of microblogging while keeping an open eye on alternatives to Twitter).

15. No additional involvement of technical intermediaries in the application of copyright

In section VI of the public consultation, the Commission asks whether “the current legal framework [is] clear enough to allow for sufficient involvement of intermediaries (such as Internet service providers, advertising brokers, payment service providers, domain name registrars, etc.) in inhibiting online copyright infringements with a commercial purpose” and “If not, what measures would be useful to foster the cooperation of intermediaries?". The desire to involve and make responsible technical intermediaries, which was also at the heart of SOPA and ACTA, can be seen clearly here.

This reflects the repressive tendency that has characterised the evolution of copyright legislation for years. It will affect freedom of expression online, as well as jeopardising essential guarantees of citizens' rights which require the intervention of a judge and a fair trial. The principles applicable to the liability of technical intermediaries are regulated by Directive 2000/31/EC on electronic commerce, and have been laid out by jurisprudence in several european courts. The revision of the Directive on copyright should not weaken their status.