Draft Response - very rough Re: [Fsfe-uk] Re: UK Prepares Own Version of the DMCA

[Simon Waters]

Following - in message - is a draft response to the proposal to
adopt the latest EC Copyright directive into UK law.


It is a first draft, without even minimal proof reading (well I
did spell check it), but I figured it will do to see if you
agree with the arguments, feel I have missed key points, have
completely the wrong tone layout or approach.

I'm also open to general issues of terminology, although I have
tried to avoid the use of terms like "piracy", and "intellectual
property", for reasons previously laid out by Richard Stallman
and other members of the FSF in another place.

At this point I think worrying over grammar is too early, let us
see if we agree on a response, redraft, and then get pedantic! I
know my English needs careful proof reading, but I suggest
specific points of correction on spelling or grammar be sent
direct to me, I'll query any "controversial" suggestions to the
list.

The conclusions are naff, and we need to state what we would
like the UK Patent Office to do. I think the approach is to ask
them to perhaps consider a full bill, if they can not push the
legislation back to Europe/WIPO to reconsider, so that the
implications can be properly discussed and researched.

It is longer than I intended and may still be incoherent in
places, but I think earlier distribution to the list will ensure
it better reflects the groups views than my own.

 Simon


Association For Free Software response to consultation on EC
Copyright Directive 2001/29/EC


What is the Association for Free Software (AFFS)?

The Association for Free Software (AFFS) is a membership
organisation which promotes and defends Free Software in the UK.


Why is the AFFS responding to this consultation?

The AFFS members are principally individuals and organisations
involved with producing and using computer software, and so may
be directly affected by some provisions in this directive.

The AFFS membership also has a wider interest as representing
consumers and users of copyrighted materials.

Many members are involved in the distribution of copyrighted
material through  digital and other channels.

Thus the AFFS includes groups in all three categories the Patent
Office is seeking to consult.

 This legislation also raises wider issues that we believe may
adversely affect the environment in which Free Software, and
software authors in general operate.


Scope of Response

This response focuses on amendments to Article 6 and 7 of the
Directive (Annex A, Section 5, Section 6) concern the issues
surrounding the issues of circumvention of protection measures,
and the removal of prevention measures, as well as more general
aspects of copyright law.

The AFFS does not feel it is an appropriate body to comment on
aspects relating to  charges and other aspects of the broadcast,
or public performance of copyrighted material by non-commercial
organisation. 


General comments on the origins of, and nature of this
legislation.

The AFFS recognises that in ever more networked world
harmonising laws related to copyright is a desirable goal,
simplifying the lives of authors, publishers, and users of
copyrighted material. However harmonisation of bad laws is not
desirable, and we feel aspects of these amendment constitutes an
attempt to harmonise a bad law.

These proposed changes would bring into UK laws similar offences
as those arising under the US Digital Millennium Copyright Act
(DMCA).

At each new leap in technology, whether the printing press, the
record player, the audio tape or the video tape, the existing
publishing industry of its day has pleaded the terrible effects
the new technology will have on it's revenue from copyright
infringement, but somehow publishing managed to flourish without
the widespread use of copy protection mechanisms or legislation
to protect those mechanisms. Now for the latest generation of
technology we will be faced with a whole new generation of copy
protection mechanisms, which are expecting new legislation to
protect them.

The AFFS membership has extensive experience with contrivances
aimed at protecting copyrighted materials from abuse in the form
of software licence systems. Whether it be dongles, software
systems like Flexlm, or bespoke systems, any experienced system
administrator will tell you they are a significant source of
additional cost, headache, down time, and complicate disaster
recovery planning. 

However it is reasonable that authors and publishers should have
the right to utilise such mechanisms should they so choose. The
concern surrounds the prohibition of devices that would bypass
such protection. 

These proposed changes would in effect make the future
equivalent of the Xerox machine, or the blank audio cassette or
the video recorder all illegal to own or use.  The idea that it
represents some minor shift costs and charges between publisher
and user is not supported by the evidence presented or the
experience of our members.

Such far reaching legislative changes should not be made in the
guise of minor amendments to the Copyright act.


Five Key Objections to the proposed changes.

a) It creates offences where none should exist. By analogy with
the security industry, this legislation criminalised the
locksmith as well as the burglar.

b) The proposed changes do nothing to ensure that current
exceptions to copyright law are protected in the real world,
such as exemptions for personal use, or study.

c) No provision is made for safeguards against abuses by rights
holders.

d) The legislation transfers significant costs onto legitimate
users, whether they be paying users, or utilising existing
exemptions to access the material.

e) No provisions exist to protect and ensure a thriving public
domain of materials so protected once the copyright period
expires.


It creates offences where none should exist.

First, the suggested legislation tries to draw a distinction
between computer software, and other technical devices. This is,
we suggest, a futile distinction, and emphasises the problem
with laws that attempt to address changing technological fields.
There are an increasing number of devices, such as; video
recorders, telephones, or multimedia palm top devices that are
based on and utilise exactly the same software as general
purpose computers. Many utilise free software to do this. The
distinction between computer software and other devices is ever
more blurred. 

Many commentators in the IT industry have long predicted that
the computers will "disappear", by which they mean they will
become closely integrated into the devices we use, to the point
where all the devices we use are smart.

When you look at the likely effects of the legislation it is
likely to prevent people implementing tools to allow digital
information to be easily converted to the format they require.
This is the root cause of most of the problems. The assumption
in the wording is that the copyright holder should have the
right to control how the material is used, but what if the
copyright holder is not reachable, no longer in business, or not
prepared to support the latest formats, or platforms?

In such circumstance this legislation would seem to potentially
lock whole rafts of copyrighted material into obsolete formats,
or proprietary systems. The equivalent of tape recording your
old LP records could end up being at worst impossible and at
best illegal. It would be in the copyright holders interest to
abuse this position to extract multiple payments for the same
copyrighted material.

The locking of such material may make it inaccessible to some
groups, such as the visually impaired.

The ability to lock people into particular formats would also we
believe have a devastating effect on industrial innovation in a
number of fields, most obviously in the field of computer
software and technical devices, where established players in the
market will use trade secrets (protected by the proposed
legislation) to push their own products and standard.

Unlike the use of patents to create such "format" monopolies,
which was a key argument against the extension of patents to
software, this monopoly would have no clear period of
expiration.


Protection of existing exemptions

Whilst some companies have started attempting to create
mechanisms than can handle exemptions, allowing cut and paste of
up to a certain proportion of text works, allowing library style
borrowing, or a certain amount of authorised copying. These
kinds of protection mechanisms are of significant complexity,
and are likely to be the most expensive to deploy and operate
for both publisher and user.

Experiences, such as the continuing wrangle between Elcomsoft
and Adobe, show that the increased complexity of such mechanisms
is likely to make them less effective, and thus less interesting
to the author or publisher seeking to protect their work.

Thus without clear penalties for publishers failing to uphold
these rights, publishers will revert to simpler mechanisms which
deliberately exclude the current exemptions currently enjoyed by
the users of copyrighted works.


Abuses by rights holders

Many of the rights enforcement methods are likely to transmit
data about the use of material to a rights holder, or an
appointed representative of that rights holder, such as the name
of the viewer, the material being viewed, the system or device
the material is being viewed on, financial information, and
possibly other less obvious information (such as the origin of
the information revealing the location of the individual).

This data might be highly sensitive both personally,
commercially or politically. The EU has sought to provide some
protections on such data through data protection and privacy
legislation, however the EU has failed to obtain long term
reciprocal arrangements with other countries such as the USA. 

However these proposals apparently make it illegal to intercept,
or manipulate such rights data to protect the privacy of the
user, even where the data is destine for areas where it receives
insufficient protection from abuse.

Similarly it is possible to imagine personal rights protection
systems which will return said information to individuals who
might write documents purely for the purpose of gathering
intelligence about their likely readership in a competing
organisation. Such an individual is unlikely to be registered
under data protection legislation in the UK, even if they were
located in the UK.

The author has himself been involved in the sale and use of
network security devices deliberately designed to remove similar
identifying data from the commonly used network protocols, but
for this particular type of data such a device would suddenly
become illegal to use. This has potentially wide implications
for many aspects of digital security.


Transfer of Costs

Whilst the impact suggests the net effect on the economy would
be neutral, it is unclear what the argument for this is. In
truth the costs of any copyright infringement are already
largely passed onto the end user by the publishers in increases
prices. 

These proposals would seem to hope to reduce the losses from
unlawful infringement , and replace it with costs to libraries
and other archivists.

However whilst the costs to libraries and archivists will be
concrete, the most commonly infringed copyrighted materials,
music and film, will be unlawfully copied for as long as the
devices produce it in a form that can be recorded by camera or
microphone.

The effective monopolies granted by such technologies will have
additional costs across the whole digital media industry,
potentially stifling innovation.


Protection of Public Domain

The public domain is under attack on a variety of fronts. 

European database legislation does not appropriately protect raw
collections of public domain material, as it is protected in the
USA.

In the USA the public domain is under attack from an ever
creeping extension of the copyright period.

However few would dispute that the public domain is a useful
source of images, ideas and literary works that inspire and
assist both the artist and scholar in his labours.

Copyright protection devices with strong legal protections will
undermine the ability of libraries and archives to record, or
supply, material in a usable form. Potentially further
undermining the accessibility of public domain material to the
public. Such libraries and archives are already faced with
considerable challenges introduced in the digital age.

As a public resource and a public good, it is up to the
representatives and legislators to ensure the public domain is
protected.


Conclusions

Those who wish to protect their copyrighted material with
digital safeguards are already free to do so, and may already
pass on additional costs to users, and create problems for
libraries and archivists.

Strong legal protection for those safeguards threaten to create
further mechanisms that are open to abuse to enforce existing
monopolies or create new ones. Under these proposals such
monopolies might persist indefinitely in stark contrast to
existing state granted monopolies on copyrighted material, or
patented devices.

Those who wish to create innovative new platforms, devices and
media formats will find such legal protections on copyright
protection mechanisms  stifle innovation or make it
prohibitively expensive.

Those groups who might create tools to assist the archivist or
librarian are outlawed by this proposed legislation.

The proposal contains no safeguards to protect the rights users
of copyrighted works, or the public domain, and thus may be seen
as a failing by the legislator to protect the existing rights of
the public.


Comments on the consultation process itself.

The inclusion of amendments pertaining to non-commercial
performance rights might better have been separated from issues
concerning mechanical protection devices.

The presentation and accessibility of material for this
consultation process was in general excellent, and readily
accessible to lay readers, and available online in a timely
fashion. The Patent Office should be congratulated on their
effective use of eGovernment. 

The author feels it would have been useful if some key points of
existing legislation and documents were better explained, for
example the "Three step test" mentioned in UK Implementation
Section III, Article 5.5. Alternatively rather than merely
referencing such external documents,  had those been hyperlinks
to the corresponding online document they could have been more
easily accessed. The author hopes the Patent Office will
consider this suggestion when preparing future consultations.