From: Malcolm Tyrrell <mtyrrell at computing dot dcu dot ie>
Subject: REVIEW OF THE ACQUIS - Consultation
Reply-To: contact at ifso dot ie
To: Markt-E4 at cec dot eu dot int

Response of the Irish Free Software Organisation to the European
Commission consultation on the review of the "acquis communautaire",
Commission Staff Working Paper 19.7.2004 SEC(2004) 995.

1. The Irish Free Software Organisation is an independent organisation
that promotes and defends free software in Ireland. More information
on IFSO can be found at http://www.ifso.ie/.

2. We would first like to state that we find the scope of the
consultation process too narrow. The current legal framework for
copyright in Europe has many problems that are not addressed by the
European Commission Staff Working Paper. We feel that the legal
framework for copyright would be best reconsidered from first
principles.

3. With respect to the Commission Staff Working Paper, we would like
to comment on two proposals which impact directly on the work of free
software developers. They relate to the Software Directive
(91/350/EEC).

4. Decompilation 2.2.1.3

IFSO agrees with the Commission that interoperability is of key
importance for competition, innovation and market entry in the
software market.  Decompilation is essential to the development of
interoperable software.  For example Samba, which provides file
serving facilities compatible with Microsoft Windows on other
operating systems, is only possible because of decompilation and
reverse engineering.

5. Protection of technological measures 2.2.1.4

IFSO welcomes the Commission view that Article 7 should not be
amended. The introduction of explicit protection against
circumvention in this context would effectively negate the ability of
software developers to decompile software. The potential for abuse to
maximise lock-in and to create monopolies is serious and real.

The Commission also states that this might in practise inhibit or
prevent the application of exceptions in the Software Directive, even
if there was a mechanism to ensure the availability of exceptions,
similar to that established in Article 6(4) of the Information Society
Directive. This raises the question of why the Commission supports the
legal protection of technological measures in the Information Society
Directive, where the ability of users and consumers to exercise lawful
exceptions in practise is severely constrained. We call on the
Commission to review Article 6 the Information Society Directive in
the light of its own submission that the term "adequate protection"
used in Article 11 of the WCT provides sufficient flexibility.

6. IFSO welcomes this opportunity to comment and would be happy to
discuss any of the issues further.

----

Malcolm Tyrrell,
on behalf of the IFSO committee.