ECIS welcomes European public procurement based on open standards ECIS welcomes the European Commission’s recognition of open standards developed by global fora and consortia for reference in public procurement. In the past, standards developed by global consortia organized on the basis of open and transparent principles, such as the World Wide Web Consortiusm (W3C) and Organization for the Advancement of Structured Information Standards (OASIS), could not be cited in public procurement documents.

The European Union’s ICT standardization regulation adopted in October 2012, Regulation 1015/2012, took a new, more inclusive approach. And in April, 2014, the European Commission took the next step adopting its first implementing decision on the basis of the Regulation setting out six standards which governments may cite in requests for procurement.

As the Commission said in adopting the new approach, now governments can help avoid “lock-in” to products which rely on proprietary standards. Instead, they can cite to open standards which (as the Commission noted) will help “encourage competition in the supply of interoperabile ICT solutions.”

Our reason for being is to encourage interoperability. This decision holds the promise of increased efficiency and cost savings for government, and benefits to consumers.

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Introduction

The European Commission is pondering ways to update copyright law so it keeps pace with technology, but this will be a delicate task and the first order of business must be to preserve what works well. Today the law successfully balances interests of copyright holders with those of innovators. For example, software makers may do what is necessary to inter-operate with existing programs, clearing the way for new programs that build on existing ones.

Technology and the internet have changed the way we work, watch movies, buy shoes and pay our bills. As we update copyright to take all this into account, the European Committee for Interoperable Systems believes we must preserve the existing principle of interoperability. At the same time we should protect such fundamental building blocks of the Internet as hyperlinking and text and data mining.

Some individual Member States now impose levies on blank tapes and storage media. We must take care to avoid similar levies on cloud services, which would put a drag on the expansion of such services across the EU and place them at a competitive disadvantage compared to the United States and others.

Inter-operability

Companies in the EU now reverse engineer copyrighted programs so their innovative software will work smoothly with existing proprietary software. This approach should be preserved in any new EU copyright provisions so innovation can continue for everything from word processors to music players.

Analytics

The internet makes it possible to analyse large amounts of text and data in ways never before possible, stoking a growing market for new facts and hypotheses which teach us more about the world and ourselves. Copyright was meant to encourage new creative works by assuring the creators they can be remunerated. A system that was supposed to assure the flow of plays, movies and novels was never meant to discourage analysis.

Nonetheless, some argue text and data analytics fall under copyright protection. However, Professor Ian Hargreaves has explained that any such protection is an unintended side effect of the law, not its intent. (His views are detailed in section 5.24 on page 47 of an independent report commissioned by British Prime Minister David Cameron.)

Text and data mining should fall outside the scope of copyright protection, or the rich benefits of text and data mining could be at risk

Hyperlinks

As anyone using the Web knows, hyperlinks are an indispensible navigation tool. We link to source material that substantiates or enhances books, blogs and magazines. Proposals to require permission from the copyright holder before a URL can be cited threaten one of the biggest advantages of the Web – an automated and vastly improved version of footnotes.

Such a novel burden on links – which has never been part of the Web – would likely be honoured in the breech and undermine the legitimacy of copyright legislation itself. And to the extent it did succeed it would interfere with the free availability of Web resources. Indeed, the Court of Justice of the European Union ruled in January, 2014, in case C-466/12 Svensson, that hyperlinking to websites freely accessible to all users is no copyright infringement, and requires no prior authorisation.

Levies

Finally, some have proposed new fees on services in the cloud to compensate creators for the copying of their works, like those which some Member States now impose on blank discs and storage media. Some EU countries have such surcharges, each at its own rate, with the rationale that people may use these blank materials to reproduce copyrighted materials. The fees flow to “collecting societies”, and are supposed to be passed along to compensate artists, composers and authors for the copying of their works.

Several Member States have extended these levies to mobile phones, because some portion of mobile phone memory might be used to reproduce copyrighted works. That is like using a shotgun to kill a flea: a wildly ineffective measure that causes a lot of damage.

European courts have found storage media manufacturers are sometimes forced to pay levies in multiple countries in violation of EU law, even though such storage media are mostly used for things other than reproducing copyrighted materials.

Imposing additional levies on cloud services, including services which are free today and meant to be so, would put a drag on the European economy. It would put Europe at a disadvantage compared to the United States (which has no similar impediments), further fragment the single market, and still fail to accomplish its state goal of protecting creators.

Conclusion

There is real merit in taking a careful look at copyright regimes as the technology for copying material changes. But at the same time, it is important to make sure copyright is a method for encouraging innovation, and is not used to squelch it. Policy makers must think carefully as they consider changes to European copyright law.

For ECIS’ response to the European Commission’s public consultation on the review of the EU copyright rules, please click here.

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We read with interest the European Commission’s Memo of 15 October on secure Cloud computing services in Europe, and entirely agree that the “fundamental principle at stake is the need to look beyond borders”. We strongly endorse its opposition to building a “Fortress Europe.”

As more and more commerce moves to the Internet, consumers and businesses of every size rely on the benefits of seamless, cross-border information flows – within the EU, and between the EU and other regions.

Films, music, electronic books, taxicab dispatching, financial services, social media and telecommunications are only the starting point: responsible creation, access, and use of data in the cloud are essential to a vast array of sectors – from manufacturers to on-line retailers, and from logistics and transportation services to architects and designers. All rely on data to boost innovation, efficiency and competitiveness.

An open, global trading system has been beneficial both to Europe and the world economy. In the same way that the EU’s internal market for physical goods and services remains open to external trade, so should an internal market for the cloud permit data flows beyond Europe’s borders. At a time when the European Union and United States are trying to dismantle regulatory barriers to commerce through the Transatlantic Trade and Investment Partnership (TTIP), protectionism is no more appropriate for the cloud than it is for cars, chemicals and cameras.

Concerns about cloud security must be dealt with, but the solution is not to demand localised server and data storage across the board – these would stifle growth by choking the flow of data in and out of Europe. If Europe were to require localisation of data, it would set a precedent for other regions that may follow suit, damaging growth opportunities for European cloud service providers.

The cloud is no longer a novelty, but an integral part of European business. Geographic limits will deprive EU enterprises of global opportunities and curtail the growth of the digital sector.

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Bringing the Cloud down to Earth

ECIS symposium 24 April 2013
Sofitel Europe, Place Jourdan 1, Brussels

The European Committee for Interoperable Systems sponsored a symposium to look at some of the pressing issues of inter-operability for the collection of technologies called the cloud.

The videos below feature a keynote speech by Michail Bletsas, director of computing at the Massachusetts Institute of Technology (“MIT”) Media Lab, who explains how the cloud hides that complexity.

Before he talks, others consider where and when government should step in to regulate the cloud, in order to make sure that there is real competition. For example, should government help make sure consumers and businesses can easily move their data from one cloud to another?

After the Bletsas speech, two lawyers in private practice talk with him about his views, and look at some of the dangers of security.

We begin with an 11-minute summary video:

Thomas Vinje, the counsel and spokesman for ECIS, welcomes people to the symposium:

Ken Ducatel, head of unit for software and services at the European Commission’s Directorate-General Connect, talks about issues government faces in dealing with the Cloud:

Katarina de Brisis, Norway’s deputy director for the Ministry of Government Administration and Reform, with responsibility for the cloud, talks about that government’s approach to handling cloud issues:

Linsey McCallum, who deals with high tech issues at the European Commission for the Competition Directorate-General, as acting director in the unit handling information, communication and media, looks at the way competition law is likely to apply for cloud issues. She notes that these are “early days” in this area:

The panel of McCallum, de Brisis, and Ducatel take questions in a discussion moderated by Martin Porter, managing director for Edelman at The Centre in Brussels:

Michail Bletsas keynote speech, including slides, helps explain how the Web works:

David Lawsky, senior adviser to ECIS, introduces Bletsas. In the event this preceded the Bletsas speech:

Andrew Updegrove. a founding partner of the law firm Gesmer Updegrove LLP, in Boston, reacts to the Bletsas speech. He also raises novel questions about the dangers for society posed by war should server farms be attacked:

Thomas Vinje, chief counsel to ECIS, talks about the application of competition law to issues surrounding the cloud:

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Statement regarding EU General Court case T-167/08:

Brussels, 27 June 2012 – “The European Committee for Interoperable Systems is pleased that the court essentially upheld the Commission’s actions regarding Microsoft, making only a 4 percent adjustment in the fine,” said ECIS spokesman Thomas Vinje.

“Of course, today’s decision in no way changes the remedies or fine which the European Commission imposed on Microsoft eight years ago, when it found that Microsoft illegally used its monopoly power to squelch competition,” he said.

“Nor does it change the requirement that Microsoft provide interoperability information on a fair, reasonable and non-discriminatory basis (FRAND),” Vinje said.

FINE

“The decision today makes a minor adjustment for one of two monetary penalties imposed on Microsoft for its delays.  Microsoft had delayed its compliance with remedies which the Commission imposed with the aim of restoring competition,” Vinje said.

When then-Commissioner Neelie Kroes announced the first fine for non-compliance on 12 July 2006, she said that it was unprecedented for a company to defy the Commission’s imposition of remedies, but that Microsoft had done so for more than six months (exact dates in the timeline below).

“This is the first time ever, in the 49-year history of the European Union, that the Commission has had to fine a company for failure to comply with an anti-trust decision. I hope that it is also the last”, Kroes said.  http://bit.ly/M6jkCVhttp://bit.ly/LwbfIw   It is that second fine which the General Court made a minor adjustment today.“The Commission ultimately succeeded in compelling Microsoft to make interoperability information available. That decision, which promotes competition in the market for work group servers, has been upheld by the EU judiciary,” Vinje said. 

Unfortunately, Microsoft continued to defy the Commission for another 16 months and Kroes had to impose a second penalty for non-compliance, on 27 February 2008.  

Contact: David Lawsky, +322 613 2824. Mobile: +32 472 91 47 48, cipa@lawsky.com

For more information, please access the full press statement available here.

 

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