EUCD alarm (Re: EUCD in Portugal)

João Miguel Neves joao at
Mon Dec 16 22:42:33 UTC 2002

Sorry for the delay in answering.

Main points of the portuguese EUCD legislation and what ANSOL (the
National Free Software Association) asked for in the public version.
Note: our copyright code is, like most in Europe, an authorship code.
Those who want to know the difference just ask.

It's divided in 3 parts:

Part I - Copyright code update

This part were mostly adaptations of notions and clarifications to the
previous code. One of this clarifications was the clear adoption of the
first sale doctrine that says that the copyright owner control over
distribution ends with the first sale of a tangible good. This allows
the sale of used books.

Part II - EUCD

With the exception of the Technological Protection Measures (TPMs) part,
the other problems with the EUCD seem to have been eliminated. The
"take-down" or vigilantism clause has been pushed to general law,
meaning that there has to be a judge decision on any action taken
against an ISP or a person.

As for the TPMs the portuguese legislation has 2 advantages compared
with other implementations I've looked at:

1) The free uses (as in freedom) are said that are in force despite
being protected by TPMs. Free uses are usually called fair use in other

2) In the case where TPMs cover free uses and the copyright owner
doesn't adopt "voluntary measures" to solve that there is a process
defined to deal expeditly with those situations (Basicaly the law
defines that all those cases are classified as urgent in our small
claims court). 

This is not the ideal, but is probably the best we can hope for without
a clear refusal of the directive.

So the problem left to be solved, for us, is the ability to produce,
discuss and ditribute  Free Software that is able to access TPM
protected works. We've asked for one of 2 things:

- a rewrite of the text so that software whose main function is excluded
from the criminalization (the actual text asks that the exempt programs
have limited comercial interest beyond its TPM neutralization function).

- an exemption for Free Software (we'd prefer the first, but we weren't
going to have another opportunity to propose anything else).

We've also proposed that the TPMs should lose the classification of
"effective" if they disallowed free uses and the copyright owner refused
to provide the ability to neutralize the TPM. This would, in fact, take
all protection from that specific TPM.

Part III - Tax over blank media

In Portugal there is a blank media tax that reverts in favour of
"copyright management societies". This laq project expands the tax to
also cover digital media (until now it only covered analogic media). It
also says that the media should be taxed by capacity.

We are against this because of 2 principles: that everyone is considered
a infractor on copyright law and that it impairs the legal distribution
of some works (like Free Software) while reverting to others unrelated
to the user and developer community.

This is all for now. Good luck in your country's implementations.

						João Miguel Neves
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