Ciaran O'Riordan wrote:
I got a mail yesterday from Tony McGrath, the guy in charge of implementing the EUCD/InfoSoc in the Department of Trade, Enterprise, and Employment. Our of courtesy, I'd like to send him a mail by lunchtime today acknowledging his mail.
Just to say at the start: IANAL, but I have read the relevant sections of the Act of 2000.
So, do I suggest Ian Clarkes rewording for the definition of "protection defeating device":
"which has only a limited commercially significant purpose or use other than to circumvent a rights protection measure to facilitate the infringement of copyright law"
It's tricky. Thinking about DeCSS, for example, it would be difficult to argue that it's not a protection-defeating device. I think our point might be that it should be legal to own (and publish, etc.) this device because it has substantial non-infringing uses. Banning a tool because it could be used to do something illegal seems overreaching.
Or is David O'Callaghan right in pointing out that legal access to works cannot be blocked.
I think this is probably the point we should strive to ensure is made very clearly in the new law.
- The Act of 2000 is amended by substituting for section 374 the following: Rights Protection Measures and Permitted Acts "(1) Nothing in this Chapter shall be construed as operating to prevent any person from undertaking the acts permitted - (a) in relation to works protected by copyright under Chapter 6 of Part II,
Chapter 6 of part II includes sections 49 -- 106 of the act, and grants general permission to do things like copy blueprints of a building if you're trying to reconstruct it, as long as the building was initially built under licence of the blueprint-copyright-holder. As well as the more usual "fair-dealing" rights such as for criticism or review. There are quite a lot of "it is not an infringement of copyright to..." sections. I read somewhere else that Ireland has a very liberal copyright law.
(b) in relation to performances, by Chapter 4 of Part III, or (c) in relation to databases, by Chapter 8 of Part V.
I haven't looked through these sections in as much detail, but they cover a whole range of "permitted activities" for performances and databases respectively.
(2) Where the beneficiary has legal access to the protected work or subject-matter concerned, the rightsholder shall make available to the beneficiary the means of benefitting from the permitted act.
I think this was the approach used in Britain's implementation, which was that the member of the public wanting to exercise a "fair-dealing" type right with respect to a work protected by encryption etc. is supposed to write to the copyright holder and say "please give me access to an unencrypted version of this work because I want to do X with it". And if the rights-holder doesn't, then:
(3) In the event of a dispute arising, either party may apply to the High Court for an order requiring a person to do or to refrain from doing anything the doing or refraining from doing of which is necessary to ensure compliance by that person with the provisions of these Regulations."
the member of the public can apply to the High Court. This seeems pretty unworkable.
I think what we want is for the law to be absolutely clear that circumventing rights-protection measures (or publishing circumvention software) is not illegal if done to facilitate "permitted acts".
In general I think we might be better off with just trying to explain as succinctly as possible what it is we're worried about, rather than trying to suggest new wording. We don't want to pretend to be experts in drafting legislation when we're not. (At least, I'm not; maybe others on the list are more qualified.) Maybe our best bet is to press the point that the set of permitted acts is part of the "copyright bargain" that the public has made with rights-holders, and rights-holders should not be allowed to "trump" those permissions by using protection-measures.
It's getting close to lunchtime so I'd better send this off :-) Hope it makes some sense and is useful.
I've got a foul cold at the moment so might not make this evening, but will try to call in for a bit at least.
Ben.