EU Copyright Consultation - Section E question 20 "term of protection"

[Benjamin Smedberg]

Are we going to talk about the term of copyright protection for software
(binaries and code)? I'm not sure we should have much opinion as an
organization about the term of copyright for creative works; as a matter
of public policy I think it's too long, but it's not clear how this
affects the internet.

But as a matter of software, we should probably have a much clearer
opinion. If the purpose of copyright is to promote new creation but to
balance that against eventually making those works useful to the public
in the public domain, copyright policy has failed software. I believe
that we should advocate for the following policies:

* Software should not be eligible for copyright unless it is freely
available to the public when the copyright term expires and it enters
the public domain: in particular, the source code of binary software be
made public when the software is released (open-source software) or
placed in escrow and made public when copyright expires (binary
software). Otherwise the public cannot benefit from the software being
public domain.

* The term of software copyright should be limited to a smaller fixed
term: I think we should propose 14 years. This means that for example,
Windows XP would enter the public domain in August 2015, which is after
Microsoft is no longer supporting it or considers it commercially viable.

--BDS

[Gervase Markham]

On 12/02/14 15:26, Benjamin Smedberg wrote:
> Are we going to talk about the term of copyright protection for software
> (binaries and code)? I'm not sure we should have much opinion as an
> organization about the term of copyright for creative works; as a matter
> of public policy I think it's too long, but it's not clear how this
> affects the internet.

I was planning to talk about it. But you are right that it's not
immediately obvious how it is relevant to Mozilla.

However, having an opinion for software is a good idea. Let's discuss:

> * Software should not be eligible for copyright unless it is freely
> available to the public when the copyright term expires and it enters
> the public domain: in particular, the source code of binary software be
> made public when the software is released (open-source software) or
> placed in escrow and made public when copyright expires (binary
> software). Otherwise the public cannot benefit from the software being
> public domain.

That is a fascinating idea which I'd never heard of. However, it would
be somewhat hard to enforce without a great deal of bureaucracy. Corp X
submits an escrowed tarball, gets copyright protection and sells the
software. 14 years later, it turns out that's some different software,
or it doesn't build, or something. What happens then?

> * The term of software copyright should be limited to a smaller fixed
> term: I think we should propose 14 years. This means that for example,
> Windows XP would enter the public domain in August 2015, which is after
> Microsoft is no longer supporting it or considers it commercially viable.

The version of XP which would enter the public domain would be the
original, not any of the service packs. So in practice, this would not
be useful to people attempting to continue using and supporting XP for
themselves - there would be far too much work to do, duplicating the
service pack functionality. Wouldn't there?

Gerv

[Benjamin Smedberg]

On 2/14/14 5:39 AM, Gervase Markham wrote:
>
>> * Software should not be eligible for copyright unless it is freely
>> available to the public when the copyright term expires and it enters
>> the public domain: in particular, the source code of binary software be
>> made public when the software is released (open-source software) or
>> placed in escrow and made public when copyright expires (binary
>> software). Otherwise the public cannot benefit from the software being
>> public domain.

> That is a fascinating idea which I'd never heard of. However, it would
> be somewhat hard to enforce without a great deal of bureaucracy. Corp X
> submits an escrowed tarball, gets copyright protection and sells the
> software. 14 years later, it turns out that's some different software,
> or it doesn't build, or something. What happens then?

I think that it should be possible to construct a reasonable set of
legislative checks and balances:

* If the company is still in business, they must make the code available
or face fines or maybe even lose copyright protections for all current
software.
* The 3rd party who holds the escrow code faces financial penalties or
loses the right to do escrow business.
* When copyright is assigned by sale or during bankruptcy, the
responsibilities associated with releasing the source also transfer.

There's obviously a bunch of questions about what to do about *existing*
software, but I'm not convinced that dealing with those details is
worthwhile in this general proposal.

>
>> * The term of software copyright should be limited to a smaller fixed
>> term: I think we should propose 14 years. This means that for example,
>> Windows XP would enter the public domain in August 2015, which is after
>> Microsoft is no longer supporting it or considers it commercially viable.

> The version of XP which would enter the public domain would be the
> original, not any of the service packs. So in practice, this would not
> be useful to people attempting to continue using and supporting XP for
> themselves - there would be far too much work to do, duplicating the
> service pack functionality. Wouldn't there?

I'm not sure, but I expect that this would at least open up business
opportunities for companies to support older software that the original
developer no longer wishes to maintain. It also serves as an incentive
for companies to keep improving their software (either in terms of
security or features).

--BDS