AFFS Letter to MEPs about the proposed EU Intellectual Property Rights Directive

Norfolk, England, 5 March 2004: For Immediate Release

The UK's Association For Free Software has sent the following letter to MEPs, questioning the proposed Intellectual Property Rights Enforcement Directive before next week's vote. The AFFS believes that applying the measures designed for intentional large-scale infringing acts to all individuals and businesses will harm all software development and especially free software.

The Letter:

Free software is an important source of income for developers and it is a significant component of many businesses, particularly internet services. We believe this directive will harm free software development 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 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. 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.

2. 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.

3. 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.

4. 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.

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. 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.

7. 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).

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 at that time.

About the Association For Free Software

The Association for Free Software (AFFS) is a membership organisation which promotes Free Software to users, business and government. Our aims are to secure the legal status of Free Software within the UK and increase public understanding of Free Software among developers and users alike.

Contact the Association For Free Software

c/o Turo Technology LLP
79 Sir Lewis Street
King's Lynn
PE30 2AL