[Free-sklyarov-uk] software interoperability and the EUCD

[David Haworth]

On Mon, Oct 28, 2002 at 08:04:29PM +0000, iriXx wrote:
> 
> im writing my comments on the UK draft EUCD at the moment - better late
> than never!

And here are mine. May I also urge anyone who hasn't yet done so to
send their comments to the patent office (copyright at patent.gov.uk)
as soon as possible, in any case by 31st October. 

Anyway, here goes (for what it's worth). Sorry for the length.

Dave

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Dear Sirs,

Here are my comments on the proposed implementation of the EC Copyright
Directive into UK law.

General
=======

The copyright directive was written by the publishing industry for
their own benefit; that much is clear. It is a breathtaking
smash-and-grab raid for new powers that, let's be honest, will
do little to benefit the authors and artists who produce the
works, and everything to line the pockets of the industry giants.

The UK Government's own think tank on intellectual property, the IPR
Commission, has recently produced a report[1] condemning the type of
legislation required by the directive, and recommending against the
implementation of such legislation. Bearing this and your statement
that the UK is obliged to implement the directive in mind, it
would seem reasonable to implement the directive in the most
permissive possible manner while adhering to the directives
requirements, while at the same time working at the European
level to undo the harm done by the directive.

So, with this in mind, let us study where the proposed legislation
could be altered to minimise the harm done by the directive.


Exceptions
==========

The proposed legislation removes or curtails some existing exceptions
in UK copyright law, as required by the directive. It does not, however,
add any new exceptions that are permitted by the directive. The result
of this is a net loss to the user of copyright works. This is not
acceptable. To maintain a semblance of balance, every exception
that is removed or curtailed must be replace by another exception
that is permitted.
However, in the interest of the "harmonisation" that the directive
claims to introduce, it would be better to introduce all the exceptions
allowed by the directive.

Circumvention of Protection
===========================

The laws against circumvention of protection, and against distribution
of circumvention devices, seems at first glance to be a reasonable
measure. However, with a little thought the inevitable effects
will become apparent: the publishing industry will use and abuse
these new powers to gain for themselves as much as possible, including
new "rights" that are not granted to them by copyright law. This is
not idle speculation; it is already happening. Some examples are:

 - the region code on DVDs. Copyright law grants the copyright holder
   the right to control distribution in various regions, not whether
   a disc bought in one region may b played in a player bought in
   another.
 - the list of "permissions" granted to the purchaser of an electronic
   book. It seems that one needs the explicit permission of the
   book's publisher before you can use any text-to-speech capabilities
   of your reader software.
 - elimination of competition. Some games-console manufacturers build
   mechanisms into their consoles so that only "authorised" games will
   work. Their stated reason for this is to prevent the use of unauthorised
   duplicates, but it is significant to note that the mechanisms also
   prevent the use of 3rd-party games with the consoles. It is in their
   economic interest, although not within their legal right, to
   eliminate the competition that can sell cheaper games because it
   does not have the overhead of producing and selling the loss-making
   consoles. There has already been such a case of abuse under existing
   UK law.
 - perpetual copyright. Copyright eventually expires, albeit after
   an unreasonably long and ever increasing time. However, the
   legal status of a protection mechanism never expires. This
   means, in effect, that publishers extend their monopoly powers
   in perpetuity

It follows, therefore, that any anti-circumvention laws must be
narrowly defined to prevent any abuse.

However, the proposed implementation of article 6, instead of
strictly defining what a mechanism must and must not do to deserve
protection, simply states that the intention of the publisher is
all that is needed. This is not even narrow enough to implement
the letter of the directive.

The directive requires that in order to gain legal protection, a
"technical protection measure" must be "designed to prevent or
restrict" copying, and must be "effective"; going on to define
"effective" as "achieving the protection objective."

In other words, to gain legal protection under Article 6, a protection
measure must pass both of the following tests:

1. It must be designed specifically to prevent or restrict copying.
   Its action cannot be a side effect of some other purpose.

2. It must be effective; it must achieve the protection objective.

The EU Commissioners have deliberately set the bar high for technical
protection measures to gain the protection of law, because they
understand the vast potential for abuse by unscrupulous
businesses. It does not fall within the UK's remit to lower that bar
in its implementation of the directive.

Furthermore, it would not be contrary to the directive to insist that
the measure be designed exclusively to restrict copying, and must not
have any side-effects that prevent or restrict lawful activities.

Publishing of scientific papers discussing the weaknesses of
protection mechanisms must never be illegal. It is understood
here that not only educational institutions publish scientific
papers; companies and private individuals are very active in
the area information technology research and development.
It is also understood that sample software, both in source
code and binary form, is an accepted form of communication
between practitioners.


While we are on the subject of protection measures, you claim that
what is left of section 296 is required to comply with an earlier
directive. However, that section predates the earlier directive
and in fact is not required by it. The opportunity should be taken
to correct this oversight; all traces of the old section 296 should be
removed. For software, this correction ought to be backdated to
the date of the earlier directive.

"Take-Down" Rules
=================

There has been some discussion of so-called "take-down" rules on
the internet, and some of the recitals accompanying the directive
also mention requiring service providers to remove infringing
material placed on the internet by their customers. However,
there appears to be no mention of this in the proposal.
I presume that this is because it isn't part of the copyright act
itself.

In the USA, the DMCA rules for take-down do not require judicial supervision.
If this were implemented in the UK, it would be very easy for anyone
to have, for example, the UK Government's web site taken down, merely
by sending an email to the service provider alleging copyright
infringement.

If the takedown rules are to retain proper judicial supervision,
I do not see this as a problem. If, on the other hand, automatic
takedown on notice from a copyright holder is proposed, there must be
some measures to prevent or dissuade abuse. I would suggest:

 - takedown notices without judicial supervision have a limited,
   non-renewable lifespan. 10 days ought to be enough time for
   anyone who is serious enough to get a court injunction.
 - before the service provider is required to take action, it must be
   shown that a reasonable attempt to contact the site owner has been
   made.
 - the takedown notices only apply to hosting service providers, not to
   bandwidth providers.
 - the takedown notice can only apply to specific infringing material.
   Other material on the site is not affected.
 - the penalty for abuse of the takedown procedure must be at least as
   much as the penalty for the alleged infringement, and is automatically
   payable to the site owner on expiry of the time-limit in (1) without
   a court order. This rule also applies if a court order is given
   and then subsequently rescinded; the plaintiff must pay the
   defendant damages plus costs.

Complaints Procedure
====================

This is woefully inadequate.

Firstly, the requirement that one must already own a protected
copy of a work before a complaint can be made. This is
unacceptable; no-one will want to buy a copy of a work that
thay cannot use unless and until there is a guarantee of
access.

Secondly, the time to obtain relief will be too long. The
Secretary of State will be ill-equipped to deal with the number
of complaints that will be the inevitable result of this legislation.
Even if a complaint were resolved within a week, it would be too
long - and the publishers are certain to delay proceedings as much
as possible to try and avoid providing the means necessary
to benefit from an exception.

Clearly, what is required here is a plain threat: the
publishers must provide the necessary workarounds for those
entitled to benefit from exeptions, on demand, within a
reasonable time - 10 days ought to be long enough. Failure
to do so causes the protection measure to lose its legal
standing and become open for circumvention.

First Sale
==========

The proposal claims that the first sale doctrine traditionally only
applies to goods distributed in tangible form. This is only because,
"traditionally", goods have only ever been distributed in tangible
form. However, the internet now permits sales to take place without
tangible materials ever changing hands. This does not alter the
status of the transaction. If the transaction is, or appreas to be,
a sale, it is treated as such for the puposes of all other laws, so I
do not see grounds for making an exception for the first sale doctrine.

Stated simply, the first sale doctrine must, as its name suggests,
apply whenever a transaction is, or appears to be, a sale of goods.
This is assumed to include perpetual, unlimited license to use a
work, for which a one-time fee is paid. It is also assumed to
apply to so-called "subscription" services, where the subscription
fee actually buys copies of copyright works that can be used
without limit (similar to magazine subscriptions), but not to
subscription services like certain broadcast TV channels.

The Future of Copyright
=======================

Copyright is a state-granted monopoly, and like all such
monopolies it should be tightly regulated. However, the
current trend is towards extending the monopoly while
at the same time removing or failing to implement
regulations, thus making the copyright industry
unique in all state-granted monopolies, where increased
regulation and reduced monopoly power is the order of the
day. This trend of extending copyright has to stop, and,
some would argue, be reversed. The danger of the ever-
extending trend is that the law would lose what little
acceptance is has, and a law that is not accepted by
the general public cannot remain on the statutes for long.

As a software author, I have no desire to see and end to
copyright, but I fear that this will be exactly the result of
the trend of extending copyright to satisfy the greed of a
few large companies.

It is clear that copyright law is only tolerated by the
general public because it is not widely enforced. People are,
in general, free to infringe copyright in their own homes, because
it does not make sense economically to prosecute small-time
infringers, and would probably produce a backlash of bad press
for the publisher anyway. So, despite copyright laws, people 
are largely free to tape films that are broadcast, or make copies
of CDs to use in the car, without fear of any legal repercussions.

A recent study[2] in the US showed that the vast majority of people
believe private copying is not and should not be an infringement.
There is no reason to believe that this would not apply in the UK
and Europe too. I suspect that most people wouldn't think
they'd be breaking the law by taping TV broadcasts to add
to their collection.

If it suddenly becomes illegal in practice to do things that
have been taken as a right for many years, the public backlash
could result in the end of copyright. We might already be
seeing the beginning of this - since the demise of Napster,
where some infringement was alleged to have taken place in
full public view, the infringing distribution has been driven
underground and, maybe because of the publicity, has expanded.
It is noticable that the recording industry's figures show a 
marked decline in sales since the demise of Napster, but how much
of that decline can be attributed to the general economomic
climate and other factors, rather than to a public backlash,
is difficult to judge.

Therefore, the UK Government should be working with its partners
in Europe to call a halt to the further extension of copyright,
and to undo the damage caused by the recent copyright directives.


References:
===========
 
[1] http://www.iprcommission.org/text/documents/final_report.htm

[2] GartnerG2 conducted the online study of 1005 U.S. adults, 18
years or older, and 1009 teens, ages 13 to 17, in July of 2002.
Reported at
http://www.pcworld.com/news/article/0,aid,106368,tk,dn102502X,00.asp
as long as the URL remains valid.

-- 
David Haworth                                            dave at fen-net.de
Baiersdorf, Germany.                     http://home.graffiti.net/pogue/