Alex's Kwiki

Consultation on the review of Copyright and Related Rights

There is a proposed response at CopyrightAndRelatedRightsResponse

Alex's analysis

You may want to download the PDF file which the consultation is based around. References are to this file; page numbers are the actual page number, not the printed page number (i.e., subtract one to get the printed page number).

I think we are mostly concerned with the tuning of the Software Directive (91/250/EC), although some of the other rights are also of some interest.

Potential Response

Set out below are the changes that affect software (are there any more?). In view of the below, a good response might be (with strength of feeling suffixed):

• support exception to copyright of software for temporary acts of reproduction (medium)
• support current non-definition of "software" (weak)
• support RoCttP rights for software (weak)
• support right of decompilation, suggest it should be strengthened (strong)
• oppose extension of legal protection to copyright measures on software (strong)
• oppose extension of term of protection for related rights (strong)

The full changes are:

Temporary Acts of Reproduction

[2.1.3.2, p.8 para 7] Suggests a new exception to copyright on software for people transmitting the software, for example, over a network. This is aimed at "intermediaries" - people providing a software delivery service. This would treat software in the same way as other works.

[2.1.3.2, p.9 para 8, p.10] Suggests similar change to database copyright - someone transmitting a database via a network may be excepted from copyright, seemingly on the proviso that they are acting as an intermediary for a "legitimate" user.

Definition of "Software"

[2.2.1.1, p9 para 2] Currently, there is no definition within the legislation for a computer program - so, what constitutes software and what does not would be left up the courts. States that there are no examples of where there has been an argument over what is a computer program and what is not, therefore does not seek to clarify what constitutes software.

Right of Communication to the Public

[2.2.1.2, p9 para 6] The RoCttP is listed merely as an example of a copyright that subsists in literary works, but not necessarily software (depending on the state) since software has received tailored protection, even though it is (roughly speaking) protected as a literary work. The RoCttP is similar to the right of distribution, but covers transmission - for example, posting something to a website (WIPO Copyright Treaty, Article 8). This covers "access of the work as a service", if you see what I mean.

This section suggests that this right - and others that have been "missed" from the usual canon of literary protections - should extend to software.

Right of Decompilation

[2.2.1.3, p10 para 1] Suggests doing nothing to alter the right to decompile software for the sake of interoperability, but notes that advances in "networks" may mean this needs to be reviewed. Notes that there is no evidence that this right needs to be reviewed (in terms of legal cases that have examined this, or feedback from industry I guess).

Protection of Technological Measures

[2.2.1.4, p10 para 3] Suggests that the legal protection for copy-prevention measures should be reviewed. This would be similar to introducing EUCD-style protection measures on software itself (the EUCD measures do not extend to software). Notes that this potentially interferes with the right to decompile. Suggests that the phrase "adequate protection" within Article 11 of the WCT provides "flexibility"; this probably means they want to punt.

Duration of Related Rights

[2.2.3.1, p11 para 5 and onwards] Looks at the suggestion of extending the length of copyright to 95 years (from 50). Doesn't seem in favour