Date: Tue, 15 Oct 2002 23:41:57 +0100 (BST) From: "Joseph S. Myers" To: copyright@patent.gov.uk Subject: EUCD consultation response Response to EUCD consultation from Joseph Myers =============================================== This is a personal response to the consultation paper on the UK implementation of EC Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society. No part of this response is confidential and it may be published in its entirety. In general, for issues not covered in this response I agree with the position of the response of the Campaign for Digital Rights . Some issues are not included here because they are adequately covered in that response; this includes in particular the issue of the saving for research into cryptography. Choice of exceptions -------------------- An appropriate legislative opportunity should be taken, after further consultation, to implement the personal use exception of Article 5.2(b). The Law Lords recommended such an exception in 1988 in CBS v. Amstrad ([1988] 2 All ER 484 and [1988] 2 WLR 1191), stating that "A law which is treated with such contempt should be amended or repealed.". Insofar as the law prohibits personal copying, it is still held in just as much contempt; only the media being copied from and to, and the music and other works being copied, have changed. The reasoning of the Law Lords is as valid as in 1988, but further consultation is needed in order to establish a system conforming to the requirements of the Directive which avoids (a) increasing the price of media not used for copying which would but for the exception be infringing and (b) paying money to copyright holders which is not objectively justified by evidence of the extent to which their particular works are copied under the exception. Circumvention ------------- 1. The consultation paper stated that the criminal sanctions have been drafted to be "transparent and targeted" and to avoid any doubt. However, in a key matter - what actually counts as circumvention - severe doubt is left. Since there is no definition of this term in the Directive, it may be necessary to leave the precise interpretation to the development of case law, but there are some cases in which the intent of the Directive is clear but it is doubtful if the proposed implementation can be read consistently with that intent. In particular, one natural and legitimate act is the creation and distribution of free software source code for viewing copy-protected works, such as DVDs, on free software operating systems. It should be made clear whether such programs (where viewing the work is authorised by the copyright holder, but not viewing it with that particular software) may be created and sold. The intent of the Directive is quite clear here from the provisions of recital 50 ("should neither inhibit nor prevent the development or use of any means of circumventing a technological measure that is necessary to enable acts to be undertaken in accordance with the terms of Article 5(3) or Article 6 of Directive 91/250/EEC"), which saving is implied by Article 1.2(a). However, this saving is nowhere written into the implementation. I suggest wording along the following lines to implement the saving and avoid the question of the new implementation implicitly repealing that of 91/250/EEC insofar as it conflicts: 296ZD(3A) Sections 296ZA to 296ZC do not apply to any act of circumvention or any devices or services related to circumvention where that circumvention is necessary for any act the prohibition of which in an agreement would be void under section 296A. 2. The intent (mens rea) required for the provisions of sections 296ZA to 296ZC should be stronger; instead of "knowing or having reason to believe" it should be "intending" (recognising the nature of circumvention devices as tools with legitimate and illegitimate uses, which it should be legal to sell for legitimate uses even knowing that they will be abused by some purchasers, as is the case with a great many physical tools). It would be better for it to be the stronger intention _to create infringing copies_ (rather than simply to circumvent). 3. To avoid substatial confusion arising from unnecessary differences between s.296 and s.296ZA-296ZC, the earliest available legislative opportunity should be taken to make s.296 more consistent with the other sections; this is entirely compatible with the very weak requirements of 91/250/EEC regarding circumvention. In particular, s.296(2)(b), concerning publishing information, should be removed to safeguard cryptographic research, and a single common definition of "copy-protection" or "technological measures" should be used throughout. The implementation of Article 6(4) ---------------------------------- Issues of _practicality_ of the proposed procedures are not discussed here because they are covered in the response of the Campaign for Digital Rights. 1. The proposal gives the Secretary of State a discretion to act rather than a duty; this would probably be subject to judicial review only if the Secretary of State's decision met a high standard of unreasonableness, not if he simply chose not to enforce the user's rights. Instead, there should be a _duty_ to act to enforce the user's rights, subject to judicial review (by either side). 2. The remedies available to the Secretary of State are not adequate in all cases. In particular, XXX(2)(b) only provides for orders allowing the complainant to benefit, whereas XXX(9) discusses "a class to which the complainant belongs"; he should be able to give an order to benefit such a class. He should also be able to give directions to any third party that may be appropriate; for example, in some cases the copyright holder or exclusive licensee may not any longer have an unprotected copy, in which case he should be able to direct the producers of the copy-protection system to do what is required. Furthermore, in some cases relating to use and preservation of works for obsolete computer systems, it may not be possible to identify a copyright holder, and he must in such cases be able to direct that certain acts required to exercise the user rights shall not be regarded as circumvention or the sale of circumvention devices. 3. It would be preferable, in terms of avoiding excessive legal or administrative actions, to define the acts necessary to ensure user rights in the absence of voluntary arrangements shall not count as circumvention (that is, to provide a "self-help" remedy), as must be necessary where there is no longer anyone with an unprotected copy or ability to produce one without reverse-engineering the copy-protection system. 4. A judicial procedure for establishing user rights - providing an actionable breach of duty for publishing a work without allowing for user rights rather than needing the Secretary of State to give directions first, or simply allowing a Court to do what the proposals reserve to the Secretary of State - would be preferable to the administrative procedure proposed. Cases where judicial tasks are assigned to politicians are increasingly subject to Human Rights Act challenges; such a challenge could come here from either side. However, since in general rights will be desired by individuals or small nonprofit organisations, it must be ensured in such cases that such users are not liable for significant legal costs. 5. There should be criminal sanctions for willfully and knowingly distributing a protected work without proper allowance for user rights, since there are such sanctions for circumvention. Rights management information ----------------------------- Section 296ZE contains no allowance for the savings for data protection law and privacy found in recital 57 and Article 9. A minimal saving would be to say that processing of personal data in the form of rights management information is still subject to the requirements of the Data Protection Act 1998. A stronger saving would say that, where a person is entitled under the Data Protection Act 1998 to prevent or prohibit or restrict the processing of personal data relating to themselves, section 296ZE shall not prohibit any act necessary to achieve such prevention or restriction. -- Joseph S. Myers jsm28@cam.ac.uk