To avoid embarassment, Ireland will be implementing as many EU directives as possible before the end of December. Our implementation of the EUCD is a year late, so I suppose it would be a good candidate for quick implementation. The public draft hasn't been released yet.
The list of directives being implemented is at: http://www.entemp.ie/whats.htm
The "Information Society Directive" is probably the only one there that we'll be interested in. I've scanned it and found one problem so far:
It defines a "protection defeating device" as being one "which has only a limited commercially significant purpose or use other than to circumvent any rights protection measure"
This sentence is ambiguous. does it mean: A) "limited commercially significant purpose or commercially significant use" B) "limited use or commercially significant purpose"
If A, useful non-commercially-significant software could be illegal.
I'll do more thinking about this for the thursday meeting, but we'll have to keep our eyes open for other fast-track directives, and we should assume that the EUCD will be fast-tracked (probably best to get a letter ready now, even though the public draft implementation isn't yet available.)
Ciaran O'Riordan wrote:
It defines a "protection defeating device" as being one "which has only a limited commercially significant purpose or use other than to circumvent any rights protection measure"
There is another dangerous ambiguity here. What if the device's purpose is to "circumvent any rights protection measure" for the purpose of allowing fair use/dealing?
The ambiguity is whether the device "circumvent[s] any rights protection measure" as a means to an end, or an end in itself.
One interpretation is that a device where the circumvention is an end in itself is prohibited, but a device which employs circumvention as a means to an end is not.
The second interpretation is that a device is only permitted if it has uses which don't involve circumvention at all.
Under interpretation #1 decss would be ok because we could argue that it permits circumvention for the purpose of allowing users to play legitimately purchased DVDs on Linux.
Under interpretation #2 the only example of something that would be protected might be one of those black marker pens which people were using to remove the DRM from CDs, since a black marker clearly has uses which don't involve circumvention.
Interpretation #1 is good for us, but renders this clause largely useless for the copyright industry.
Interpretation #2 is completely useless for us unless we credibly believed that the EUCD might be used to go around banning black marker pens.
A rewording to address this problem might be:
"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"
This excludes devices which allow the user to circumvent the rights protection measure to exercise their fair use/dealing rights.
Ian.
Update: I'm an idiot: The Information Society Directive is the EUCD
Time to get our skates on.
Ian Clarke ian@locut.us writes:
There is another dangerous ambiguity here. What if the device's purpose is to "circumvent any rights protection measure" for the purpose of allowing fair use/dealing?
A rewording to address this problem might be:
"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"
This looks good.
On Wed, 2003-12-10 at 16:09, Ian Clarke wrote:
Ciaran O'Riordan wrote:
It defines a "protection defeating device" as being one "which has only a limited commercially significant purpose or use other than to circumvent any rights protection measure"
There is another dangerous ambiguity here. What if the device's purpose is to "circumvent any rights protection measure" for the purpose of allowing fair use/dealing?
Perhaps I'm being naïve, but this seems to be covered by the following:
5. 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, (b) in relation to performances, by Chapter 4 of Part III, or (c) in relation to databases, by Chapter 8 of Part V.
(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.
(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.”.
I haven't followed the references but this suggests to me that the permitted acts that a person may perform cannot be arbitrarily denied by rights protection measures.
But, perhaps a film studio would claim that I don't have a legal right to watch the contents of a region 1 (American) DVD on a region 2 (European) player because I implicitly agreed to their licensing terms when buying the DVD.
David
David O'Callaghan wrote:
On Wed, 2003-12-10 at 16:09, Ian Clarke wrote:
Ciaran O'Riordan wrote:
It defines a "protection defeating device" as being one "which has only a limited commercially significant purpose or use other than to circumvent any rights protection measure"
There is another dangerous ambiguity here. What if the device's purpose is to "circumvent any rights protection measure" for the purpose of allowing fair use/dealing?
Perhaps I'm being naïve, but this seems to be covered by the following:
5. 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, (b) in relation to performances, by Chapter 4 of Part III, or (c) in relation to databases, by Chapter 8 of Part V. (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. (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.”.I haven't followed the references but this suggests to me that the permitted acts that a person may perform cannot be arbitrarily denied by rights protection measures.
But, perhaps a film studio would claim that I don't have a legal right to watch the contents of a region 1 (American) DVD on a region 2 (European) player because I implicitly agreed to their licensing terms when buying the DVD.
Also, you may not be legally licensed to play a game written for console X on a modded-for-the-purpose console Y -- or to play a DVD on a linux-based OS.
The notion of "legal access to the protected work" is quite slippery, ie what you can or cannot infer you have an "implied licence" to do, and what presumed rights the content-owner is or is not allowed to withhold. My suspicion is that the exact boundary has not yet been marked out by test-cases in court, and the EUCD/InfoSoc Directive pretty much sidesteps past the issue.
But that's just off the top of my head.
It's something that almost certainly *is* worth discussing with friendly experts/lawyers.
Best,
James.
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James Heald writes:
David O'Callaghan wrote:
On Wed, 2003-12-10 at 16:09, Ian Clarke wrote:
Ciaran O'Riordan wrote:
It defines a "protection defeating device" as being one "which has only a limited commercially significant purpose or use other than to circumvent any rights protection measure"
There is another dangerous ambiguity here. What if the device's purpose is to "circumvent any rights protection measure" for the purpose of allowing fair use/dealing?
Perhaps I'm being naïve, but this seems to be covered by the following:
5. 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, (b) in relation to performances, by Chapter 4 of Part III, or (c) in relation to databases, by Chapter 8 of Part V. (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. (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.”.I haven't followed the references but this suggests to me that the permitted acts that a person may perform cannot be arbitrarily denied by rights protection measures.
But, perhaps a film studio would claim that I don't have a legal right to watch the contents of a region 1 (American) DVD on a region 2 (European) player because I implicitly agreed to their licensing terms when buying the DVD.
Also, you may not be legally licensed to play a game written for console X on a modded-for-the-purpose console Y -- or to play a DVD on a linux-based OS.
The notion of "legal access to the protected work" is quite slippery, ie what you can or cannot infer you have an "implied licence" to do, and what presumed rights the content-owner is or is not allowed to withhold. My suspicion is that the exact boundary has not yet been marked out by test-cases in court, and the EUCD/InfoSoc Directive pretty much sidesteps past the issue.
But that's just off the top of my head.
It's something that almost certainly *is* worth discussing with friendly experts/lawyers.
If someone can put together a short-but-coherent question on that, I'll be happy to pass it on... ;)
- --j.
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.
Due to the short amount of time-to-implementation, I'd like to include a paragraph summarising what revisions we might be asking for.
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"
Or is David O'Callaghan right in pointing out that legal access to works cannot be blocked.
Or is David right, but we should still ask for Ians rewording?
Or should I not say anything?
Note: I haven't read the Irish copyright act of 2000, but some people have. So could someone more qualified tell me what to say?
thanks.
Exerpt highligthed by David O'Callaghan:
- 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, (b) in relation to performances, by Chapter 4 of Part III, or (c) in relation to databases, by Chapter 8 of Part V. (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. (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.”.
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.
Ben North wrote:
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.
Indeed, but the strategy of making the tools for circumventing DRM illegal became the copyright industry's priority once they realized that DRM could always be circumvented. the idea of banning a tools because it could be used to do something illegal is central to both the DMCA and the EUCD's anti-circumvention provisions.
Or is David O'Callaghan right in pointing out that legal access to works cannot be blocked.
The problem is that with the EUCD it is not the law that is blocking legal access to works, rather the law is protecting the technology that is blocking legal access to works. By adding this layer of indirection the DMCA successfully did an end-run around fair use in the US, and the EUCD appears to have the same intention here.
Now, we could argue that if the law is protecting technology that blocks legal access to works, then the law is effectively blocking legal access to works. IANAL but I don't fancy our chances if we are relying on the courts to make this logical leap during Ireland's first EUCD court case. Rather, our best chance is to nip it in the bud by making this clause specifically *not* apply to technology which can be used to enable legal access to copyrighted works. I believe this to be the effect of my suggested rewording that I give elsewhere in this thread, but again, IANAL.
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.
I sympathize with the suggestion that perhaps we shouldn't portray ourselves as amateur legislation drafters, but on the other hand, sometimes point out a problem and offering a solution can be more effective than just pointing out the problem itself.
Ian.
"Ben North" ben@redfrontdoor.org writes:
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.
Right. thanks for all the comments, I'll go with this advice and just say as little as possible to express our concerns without suggesting an alternate wording.
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.
ok. All previous meetings have been adjourned by the barman telling us that the pub is closing, so if you drop in late, I'm sure we'll still be there. Or if you want to drop in before 8, just mail the list and some people will also turn up early (as we've done in the past).
Let's make sure we've thought it through first, and checked in with people who have gone the whole journey on this in other countries, before we finalise a submission.
The most important thing about the EUCD, as far as I remember, is probably not the detailed wording; but instead which of the possible allowed exceptions Ireland will or will not permit; and what mechanisms are being put in place for substantive things not specified by the directive -- eg how to gain 'fair dealing' access to access-protected works.
On both of these it is v. important to be aware of all the possible options that other countries may have selected instead.
(IMHO).
All best,
James.
----- Original Message ----- From: "Ciaran O'Riordan" ciaran@member.fsf.org To: fsfe-ie@fsfeurope.org Sent: Thursday, December 11, 2003 10:06 AM Subject: Re: [Fsfe-ie] EU direcitves being rushed into Ireland before presidency
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.
Due to the short amount of time-to-implementation, I'd like to include a paragraph summarising what revisions we might be asking for.
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"
Or is David O'Callaghan right in pointing out that legal access to works cannot be blocked.
Or is David right, but we should still ask for Ians rewording?
Or should I not say anything?
Note: I haven't read the Irish copyright act of 2000, but some people have. So could someone more qualified tell me what to say?
thanks.
Exerpt highligthed by David O'Callaghan:
- The Act of 2000 is amended by substituting for section 374 the following: Rights Protection Measures and Permitted Acts b (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, (b) in relation to performances, by Chapter 4 of Part III, or (c) in relation to databases, by Chapter 8 of Part V. (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. (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.b .
-- Ciaran O'Riordan - http://www.compsoc.com/~coriordan/
_______________________________________________ Fsfe-ie mailing list Fsfe-ie@fsfeurope.org https://mail.fsfeurope.org/mailman/listinfo/fsfe-ie
Ciaran O'Riordan wrote:
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"
Does this sentence seem a bit clumsy to anyone else? Perhaps I am just a perfectionist.
What about:
"which has a limited purpose or use other than to facilitate the infringement of copyright law through circumvention of a rights protection measure".
I have removed "commercially significant" as I can't for the life of me see what that phrase achieves.
Ian.
Dé Déar, 2003-12-11 ag 11:13, scríobh Ian Clarke:
What about:
"which has a limited purpose or use other than to facilitate the infringement of copyright law through circumvention of a rights protection measure".
I have removed "commercially significant" as I can't for the life of me see what that phrase achieves.
I don't know either but in the Directive it states in Article 6.2b:
Member States shall provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which: [...]
(b) have only a limited commercially significant purpose or use other than to circumvent[...] any effective technological measures.
But technological measures are later defined to mean "any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorised by the rightholder of any copyright or any right related to copyright as provided for by law"
So does that mean that technological measures aren't technological measures when they prevent or restrict acts which *are* authorised by law?
David
David O'Callaghan wrote:
But technological measures are later defined to mean "any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorised by the rightholder of any copyright or any right related to copyright as provided for by law"
So does that mean that technological measures aren't technological measures when they prevent or restrict acts which *are* authorised by law?
Interesting question. One could argue that the fact that it prevents acts that are authorised doesn't negate that fact that they also protect acts which are not authorized.
Ironically CSS prevents users from exercising rights they have under most countries' copyright laws, while failing to prevent acts that are illegal! (CSS does not prevent someone from copying a DVD, but it does prevent them from using it in an unauthorized region!).
Ian.