Public data, free software … the digital law seen by two lawyers

by bold-lichterman

The deputies adopted Tuesday, January 26, in first reading the draft Digital Law. The text will be examined in April in the Senate. Still remains an unknown on its passage in second reading in the Assembly.

antoine-charon-avocadoAntoine Cheron, associate lawyer, holds a doctorate in intellectual property law, a lawyer at the Paris bar and at the Brussels bar and lecturer in a Master of law at the University of Assas (Paris II): For my part, three measures go in the evolution of society and the economic world, except for open data which responds more to satisfying the big players of Big Data driven by Brussels.

Now I think that there are excesses in terms of infringements of the (intellectual) property rights of third parties, and in particular of database producers, and in terms of invasion of the privacy of individuals.

Open data

The government wants to expand open data by requiring public bodies to disseminate key documents and data online. In this context, the deputies approved the bill, certain provisions of which are intended to oblige the administrations to distribute administrative documents as well as their databases in an open and easily reusable format. MEPs specified that this information should be updated regularly. The purpose of the dissemination of this data is to allow anyone who wishes to reuse it free of charge and for purposes other than those of the public service mission.

MEPs added an exception to the statement that the intellectual property rights of administrations may not prevent the reuse of the content of their databases. In fact, they excluded the application of this provision to databases produced or received by these administrations in the exercise of a public service mission of an industrial or commercial nature subject to competition. It is also specified that when this free reuse gives rise to the establishment of a license, this must be revised every five years after consultation.

The National Assembly also specified that the exchange of public information between the administrations will not give rise to the payment of any fees. Nevertheless, the use for payment of administrative documents by any administration within the framework of the performance of public service missions other than that for the purposes of which the documents were produced or received, is not excluded.

In addition, another amendment adopted by the deputies clarified that the “source code” constitutes an administrative document which is therefore communicable to the public.

The use of free software by the administration

MEPs adopted an amendment to encourage administrations to use free software. The adoption of such provisions is explained on the one hand by the desire for the administration to adapt to this new practice of free software, and on the other hand in order to limit costs.

It should be noted that these amendments relating to free software have been the subject of strong lobbying from software publishers. The increasing use of free software is currently forcing publishers and integrators to review their business models.

“Panorama’s freedom”

The deputies granted “freedom of panorama”, despite the opposition of the Secretary of State for Digital, thus creating a new exception to copyright. It makes it possible to distribute photographs of protected buildings or sculptures. This exception is limited to reproductions made by individuals for non-profit purposes. Previously, the authors of buildings and sculptures could oppose any representation of their works.

Olivier-sanvitiOlivier Sanviti, Founder and Managing Partner, Head of the Venture of Aston law firm: To date, the Bill for a Digital Republic constitutes a rather positive step forward in digital law: data portability in the event of a migration of the Internet user’s emails and contacts, confidentiality of private correspondence, right to information. ‘neglect of minors, obligation of loyalty of online platforms …

From a purely legal point of view, there is a new exception to copyright, the “freedom of panorama”. The amendment in question authorizes “the reproductions and representations of architectural works and sculptures permanently placed on public roads, made by individuals for non-profit purposes”. This is a principle that has existed for several years, particularly in Spain. It is important in practice that this right is limited to non-commercial use in order to protect copyright, especially of architects.

The open data imposed on public bodies is a positive sign of the administration’s openness. In practice, this freedom, also offered to administrations among themselves, should not come at the expense of citizens … To be continued.