[Fsfe-uk] Consultation on EC Copyright Directive 2001/29/EC

[Marc Eberhard]

-----BEGIN PGP SIGNED MESSAGE-----
Hash: SHA1

Dear Ms Arnesen,

please find below the response of the AFFS to the consultation on EC
Copyright Directive 2001/29/EC. If you have further questions, please don't
hesitate to contact me. I would greatly appreciate, if you could confirm the
receipt of this response.

Regards,
Dr Marc Eberhard (AFFS Chairman)
_______________________________________________________________________________

email: address@hidden, web: http://www.aston.ac.uk/~eberhama/

To Teresa Arnesen
   Copyright Directorate
   The Patent Office
   Harmsworth House
   13-15 Bouverie Street
   London EC4Y 8DP

   Tel: +44 (0)20 7596 6513
   Fax: +44 (0)20 7596 6526/6527
   E-mail: address@hidden


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

This response was prepared by Simon Waters <address@hidden> with
the help of AFFS members and supporters.

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. Its web pages are reachable at
http://www.affs.org.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 algorithms 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 proprietary 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 multi region
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 obsolete. Note formats are
obsoleted 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
hyper links 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
-----BEGIN PGP SIGNATURE-----
Version: GnuPG v1.0.6 (GNU/Linux)
Comment: For info see http://www.gnupg.org

iEYEARECAAYFAj22UvwACgkQlTDIHyPR99R9FgCePYLgDWY3/cD0i0kk4CjL5qry
GRAAn2tu84UUHwS43lykF9JGQvLe3aLg
=Jk9B
-----END PGP SIGNATURE-----