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When users lose out

Technological measures against digital piracy don't just punish the pirates.

Alison Perrett

Topics Politics

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According to the major recording companies, digital piracy is threatening human creativity.

They argue that legal and technological barricades must be erected around digital works, to ensure their creators collect their money. Without this protection, creative endeavour will suffer. Britney must be protected at all costs!

This argument has been heard loud and clear in the European Parliament. In May 2001, a European Union Directive gave added legal protection to copyright owners who package their digital work in encryption locks, scrambling systems, password protections, or other features that restrict access to a work (1).

If a person knowingly bypasses that lock, the owner has the right to sue (2). And anyone who makes technical ‘keys’ to break the locks is also liable.

But there is a big flaw in giving legal protection to those who use technological protection measures – namely that such measures do not distinguish between profiteering pirates and legitimate users.

An automated system is a poor substitute for legal inquiry and discretion. It also gives an owner the ability to rule out activities that would otherwise be allowed under copyright law. A legal mandate on the use of technological protection measures may end up restricting the activities of good faith users, as well as the ill-intentioned.

On 7 August 2002, the UK government released a draft law that seeks to implement the EU Directive (3). Under this law, a copyright owner who uses a technological protection measure has the same legal rights to sue a person who bypasses their locks as they would if that person infringed their copyright (4). But the unlucky defendant may not use one of the ‘fair dealing’ defences that they could use in a normal action for copyright infringement. No ifs, no buts. The proposed new law mirrors the rigid, inflexible nature of the systems it is seeking to protect.

Why do technological protection measures need legal protection? Because they can be hacked. The recording industry knows it. The software industry knows it. The average user may not know how, but the industry fears that if users look hard enough they will find a way to break the lock. So the copyright industry has lobbied for these wobbly electronic fences to be reinforced with legal safeguards.

The drafters of the EU Directive were convinced that if anyone is allowed to gain unauthorised entry via a circumvention device, then the whole system of legal protection would fail. So legitimate ‘fair dealing’ can be no defence. As the ‘fence’ is full of gaping holes, the sign at the entrance says: ‘Trespassers prosecuted – no exceptions!’

Similar legislation has already been implemented in the USA. At the heart of the US debate is the Digital Millennium Copyright Act (5) – but even this Act leaves room for the legal circumvention of technological protection measures, albeit in limited circumstances. The EU Directive and the draft amendments leave no room for users to circumvent under any circumstances.

Instead, under the draft amendments, if you feel aggrieved that a technological protection measure is denying you one of the special exceptions to copyright (exceptions that have been narrowed by the EU Directive), then you may ‘issue a notice of a complaint to the secretary of state’. The secretary of state may investigate your case, and if it is decided you have been hard done by, then the owner will be directed to enable you to ‘benefit from’ that exception (6).

How would this work in practice? Would anyone bother complaining? How would a government department cope if every new CD was copy-protected, and every consumer sent in a notice of complaint, arguing their right to copy for private non-commercial use? What practical remedy would the secretary of state demand in such a situation?

If the digital delivery of technologically protected music, movies and books takes off, as the major industry players hope, everyday dealings with human expression may radically change. A set of university textbooks may expire upon graduation. Your e-book collection may disappear, unless you pay an additional fee. Want to create a compilation of favourite songs from copy-protected CDs? Forget it!

The Copyright Directorate (7) has had a difficult task, proposing amendments to UK copyright legislation to bring it into line with the EU Directive. But is the passing of this draconian law a foregone conclusion? The proposed amendments must at least be adjusted to ensure user freedoms are protected. An alternative solution is to scrap the Directive altogether.

The EU Directive is mind-numbingly complex and ambiguous, and does little to promote legal certainty between EU states. Directives have been successfully challenged in the past, and this Directive deserves to be challenged too (8).

Alison Perrett is a copyright assistant at the Tate gallery

Read on:

Self-regulation makes us all blind, by Sandy Starr

Tightening the net, by Chris Evans

(1) Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society

(2) The Directive does not specify whether both criminal and civil liability should arise where a person circumvents a technological protection measure. The Directive directs member states to provide ‘adequate legal protection’ against any person who circumvents. This may result in different levels of liability emerging between Member states.

(3) See EC Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society: Consultation Paper on Implementation of the Directive in the United Kingdom (.pdf 238 KB), Patent Office, Department of Trade and Industry, 7 August 2002

(4) Draft amendment 296ZA. See EC Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society: Consultation Paper on Implementation of the Directive in the United Kingdom (.pdf 238 KB), Patent Office, Department of Trade and Industry, 7 August 2002, p31

(5) See the Digital Millennium Copyright Act (.pdf 318 KB)

(6) EC Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society: Consultation Paper on Implementation of the Directive in the United Kingdom (.pdf 238 KB), Patent Office, Department of Trade and Industry, 7 August 2002, Annex A, 5.2, p35

(7) See the Copyright Directorate section of the UK Patent Office website

(8) For example, the Tobacco Advertising Directive (98/43) was annulled in the case of Germany v European Parliament and Council of the EU, ECJ, 5 October 2000, Case C-376/98

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Topics Politics

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