Second draft of AFFS response [Fsfe-uk] Re: UK Prepares Own Version of the DMCA

[Simon Waters]

Hi,

a second draft of the response on EC Copyright Directive
consultation, incorporating (mostly in my own words, but some
cut and paste) comments from MJ Ray and Alex Hudson.

Comments are sought. 

Specific experiences of members highlighting likely problems are
especially welcome.

Mark: my membership cheque is in the post ;)

I will attend the FIPR discussion on the 25th (see notes at
end), I'm even bringing a friend who is more interested in the
fair-use protection for education, and non-commercial
performance issues.

A self imposed deadline is the end of September to get this out
of the way!

The changes are a strengthing of language in some areas, and
some more spelling out in detail of some issues (I know what I
meant to say, but I'm not sure I said what I meant).

Alex made a number of good point, other than with regard to
tone, and I've tried to incorporate them as appropriate.

Don't spare the criticism, I have thick skin (at least one of my
hats still has system admin written on), but make it
concstructive please.

 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) concerning the issues
surrounding the 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 an 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 laws is not
sufficient reason of itself to justify changes, legislative
changes must receive suitable scrutiny to ensure they are
balanced, and consistent with the ideas of natural justice, and
other legislation.

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. Despite these dire prediction publishing has grown
and developed new markets 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,
subject to suitable protection of the fair use exemptions of
copyright. We will demonstrate that protecting those fair use
exemptions may conflict with prohibition on circumvention
devices.

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 in costs and charges between
publisher and user is not supported by the evidence presented by
the Patent Office 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. 

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 using 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.

By analogy with the security industry, this legislation will
criminalise the locksmith as well as the burglar.

First, the suggested legislation tries to draw a distinction
between computer software, and other technical devices. This is
a futile distinction in this area, and emphasises the problem
with laws that attempt to address rapidly changing technologies.

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
implementing complex mathematical algorithmns to protect digital
content is unclear. If my computer can play an MP3, is it an MP3
player? If  I load the same MP3 playing software onto my
telephone is it an MP3 player? If I rewrite the firmware on my
MP3 player to play only OGG files, is it still an MP3 player?

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 into proprietary formats will make
it inaccessible to some groups, likely to include the visually
impaired, or those that use minority operating systems.

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

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.

These changes also seem to run counter to the European Software
directive, that specifically protects the right to reverse
engineer software for the purpose of interoperability. If we
accept interoperability is desirable, then these changes
undermine the right to make a suitable copy for that use.


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.

Since the wrangle between Elcomsoft and Adobe, Elcomsoft have
continued to reveal weaknesses in almost every mechanism Adobe
have added to permit fair uses of the material.

Thus it is seen the increased complexity of such mechanisms will
make them less effective in protecting material against unlawful
infringements, but also more expensive to implement, and thus
less attractive to the author or publisher seeking to protect
their work.

Publishers will do the minimum amount to make the work
profitably available - if enabling fair-use rights is extra
work, they're unlikely to do it, unless clear penalties are
incorporated into the legislation. 


Abuses by rights holders

Many of the rights enforcement methods will 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 destined 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 main author of this response 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.

Additional abuses are likely through the use of monopolistic
pricing arrangements once a propietary system is established in
the market, and devices to access those formats are widespread.
So far this has been avoided by the provision of devices that
subvert some abuses, such as multiregion DVD players, which were
far more commercially successful, but similar devices would
presumably be outlawed by these changes.


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 increased
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 the Public Domain

The Statute of Anne granted copyright for 14 years, and applied
safeguards to prevent excessive charging for books. Even then
legislation extending monopolies was granted with appropriate
safeguards.

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 the repeated
extensions of the copyright period. These extensions, if upheld
as constitutional,  apply to US material in the UK.

However few would dispute that the public domain is a useful
source of images, 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, and
supply, material in a usable form. This would further undermine
the accessibility of material that belongs in the public domain. 

Such libraries and archives are already faced with considerable
challenges introduced by the rapid proliferation of new media
formats.

As a public resource and a public good, it is up to the
representatives and legislators to ensure the public domain is
protected. The protection devices must be time limited in their
effect, and that material so protected is released when a format
or mechanism becomes obselete. Note formats are obseleted
frequently, and far faster than the current long periods of
copyright.


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.

Indeed the exercise of this freedom has already led to
investigation by the European Competition Commission for
suspected abuses of monopoly by DVD and CD publishers. In the US
legal challenges are being brought over CD protection mechanism
for preventing fair use access. Yet despite these alleged abuses
the European Union introduces more legislation that protects the
publisher and not the consumer. Clearly an exercise in
disjointed government.

Strong legal protection for those safeguards threaten to create
further mechanisms that are open to abuse, whether 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.



Contributors: S R Waters, M J Ray, Alex Hudson
Drafted: 2002-09-03 SRW
Revised: 2002-09-19 SRW based on contributions received


 Notes for AFFS members;

Another response from the Campaign for Digital Rights may be of
interest.
http://uk.eurorights.org/issues/eucd/ukimpl/

A discussion 'A Fair deal on Copyright' 2002-09-25 at the LSE
with discuss these issues. I shall be attending, A303/M3
permitting, last person I know of who asked was invited so
presumably there are still some spare seats.
http://www.fipr.org/events.html

RNIB Campaign

In their own words.....

"RNIB strives for a situation where the rights of blind and
partially sighted people are given the same recognition as those
of copyright owners. This would mean that the transferring of a
document into an alternative format, that is to say an
accessible format, would not be seen as an infringement of
copyright. Transferring, or "trans-formatting" would not be
copying, so it would not need permission. Thus, there would be
no delay while awaiting permission and no possible denial of
disabled people's rights. Any originals obtained in order to
produce the alternative format would be paid for at the standard
price. Authors, publishers or other rights owners would be
acknowledged. Steps would be taken to prevent any abuse by blind
people passing on copies in their possession, although it is
unlikely that such copies would be of any commercial interest."

Their problem is similar to that of users of some non-poprietary
operating systems under this legislation, although obviously in
their case there is no monopoly of sightedness they can opt to
buy into.

I would question if non-commercial solutions will provide
minority interest materials in the appropriate formats. I have
no problem with someone profiting from converting material from
one format into another, if that helps the blind or partially
sighted access the material. Indeed it seems strange that we are
even discussing such an issue in a world of digital material,
when I would have thought we should be educating webmasters to
the accessibility needs of this minority, and how tools like
hypertext markup language should make it easier to meet these
needs.

http://www.rnib.org.uk/campaign/copyright.htm

DVDs and the like.

http://www-2.cs.cmu.edu/~dst/DeCSS/Gallery/

http://eon.law.harvard.edu/openlaw/DVD/dvd-discuss-faq.html