[Fsfe-ie] Re: Copyright and the EUCD

[Malcolm Tyrrell]

This is my attempt to bring together some information on the EUCD and
suggest some plans of action. I apologise for its length.

I am not especially up to date on this issue so please mail corrections
and additions to the points I've made. It's just intended to be a
launching platform for our work on this issue.

By the way, if we get any lawyers on board with respect to the patents
stuff, we should also suggest they consider the copyright stuff as
well.

Enjoy,

Malcohol.

====

WHY WE CARE:
* Aspects of the EUCD restrict activities we, in the free software
  community consider legitimate.
  - Under the EUCD, some of these activities could become crimes and be
    punishable with prison sentences.
  - In particular, our ability to produce software which can read and
    manipulate date formats.
* Bad for consumers 
  - see problems with EUCD section below
* The EUCD is just bad law.
  - see first point in the Problems with EUCD section below

GOALS:
* Describe the problems with the EUCD.
  - there should be plenty of material on-line to leech from
* Find out how copyright currently operates in Ireland and, more generally,
  Europe.
  - is there a useful document/book/website which explains why we have
    copyright in Europe, or the history of copyright in Europe?
  - In the US, they have an explicit position. Quoting the Stallman talk,
    Copyright and Globalization in the Age of Computer Network:

      "For the U.S. Constitution it was proposed that authors should be
      entitled to a copyright, a monopoly on copying their books. This
      proposal was rejected. Instead, a crucially different proposal was
      adopted, which is, that for the sake of promoting progress, Congress
      could optionally establish a copyright system that would created
      these monopolies. So the monopolies, according to the U.S.
      Constitution, do not exist for the sake of those who own them; they
      exist for the sake of promoting the progress of science. The
      monopolies are handed out to authors as a way of modifying their
      behaviour to get them to do something that serves the public."

    I don't think this is the case in Europe where there may be more of an
    automatic right to copyright for authors.
* What is the history of the EUCD?
  - knowing that the procedure which devised it was poor gives us another
    small argument against.
  - why was it drafted?
    o In response to the WIPO Copyright Treaty and possibly TRIPS, I guess
    o In response to pressure from <see next point>
  - who were the major players?
    o big media companies
    o big software companies
  - who, if anyone, address consumer issues during its drafting?
* WIPO Copyright Treaty and TRIPS
  - WIPO obviously is important to the EUCD. What about TRIPS?
  - How many, if any, of the EUCD's restrictions is imposed by TRIPS and
    the WIPO Copyright Treaty?
  - Discover whether Ireland is a signatory to TRIPS or WIPO directly, or
    only indirectly by virtue of EU membership.
* Find out what the legislative procedure in Ireland will be.
  - changes in Irish law currently being drafted by Tony McGrath?
* Reinterpret Free Software arguments in terms of what we have learned
  about copyright. (Not EUCD specific but more general IFSO work)
  - Some of the FSF essays interpret the meaning of "copyright" to be the
    US meaning. We might want to provide more appropriate local arguments
    instead.

PROBLEMS WITH EUCD:
This is from a brief and shallow reading of "Why the EUCD is Bad" (see
links section). Most problems are with "Article 6" and some are with
"Article 3".
* Copyright Law is replaced by technology 
  - it makes it illegal to circumvent protection measures.
  - therefore, protection measures can be used to define what people can
    and cannot *legally* do with a copyright work.
  - it is irrelevant how feeble the protection measure is.
* Cryptographic Research
  - it may become illegal for cryptographic researchers to publish
    research since they might reveal how a protection measure can be
    circumvented.
* Ethical Hacking
  - it may make the publishing of security holes illegal
  - this, and the above point, will remove an important force of quality
    control in cryptography and security. Both technologies will be
    severely weakened.
* Competition in the Software Market
  - "the company that creates a digital format has complete control over
    how the players should behave, and also control over who should be
    allowed to create players for that format."
* Libraries
  - protected works will make it difficult for libraries to perform the
    task of preserving material
* No "first sale" for non-physical works
  - copies of a work can be tied to an individual buyer, making it
    impossible sell your individual copy
* Censorship
  - copies can be make self-destructive or non-storeable
  - if we can't keep a fixed copy, it makes it difficult to determine what
    was actually "published" in the first place
  - (we can see this already on the web where the old content is silently
     updated)
* Mass-market licenses (I'm not sure I understand this point fully)
  - the law does not give you any guarantee that you can't sign away
    important rights with a single click on an 'accept' button.

SOME LINKS: 
* These need to be annotated. Of course, first, they need to be read!!!
  I can't vouch for their quality yet.
* http://www.ukcdr.org - UK campaign for digital rights
* http://www.ipjustice.org
* http://www.eurorights.org - essay: Why the EUCD is bad.
* Audio files by Robin Gross, and Martin Keegan:
  http://media.april.org/audio/RMLL-2003/fixed/
* http://www.ivir.nl/publications/hugenholtz/opinion-EIPR.html
* http://www.fsfeurope.org/projects/eucd/eucd-fs.en.html
* http://www.acm.org/usacm/IP/dmca.exemption.htm
* http://www.eblida.org/topics/position/legaffa.htm

SOME PEOPLE WE KNOW ARE INVOLVED:
* Tony McGrath is "the man in charge of producing the draft in
  consultation with the attorney general"
* The Attorney General, the advisor to the government on legal
  matters, and therefore is the chief law officer of Ireland.
* Teresa Hackett. Worked in Norway on behalf of EBLIDA
  (European Bureau of Library Information and Documentation Association)
  http://www.eblida.org. She will hopefully be talking to us at the
  meeting on 11/12.

NOTES FROM E-MAILS:
* "The UK implemented a pretty bad interpretation recently":
  http://www.ukcdr.org/issues/eucd/ukimpl/
* "The EUCD is a particularly flexible EU directive. Virtually every
  article of import can be partially implemented or not implemented at
  all if the member state feels it (a) contradicts a legal tradition of
  the country (b) would damage their industry and a few other provisos."
* > The gist of the EUCD is that it will be a criminal act to circumvent
  > encryption to gain access to copyrighted material.
  It is however up to the state to decide where it becomes criminal.
  Most EU states have made large scale commercial piracy the criminal act
  which I think it was already.  The UK has made individual acts - even
  finding a hole in the encryption and then reporting it - illegal,
  punishable by up to three years in prison.  
* "Fair dealing is unauthorised but lawful use of an authors work.
  A person does not need permission from the author if they want to quote
  a non-substantial portion of a work, parody the work, make a backup of
  the work, etc."
* The UK implementation makes any reverse engineering of anything
  *containing* a protection device criminally illegal. This I [Niall]
  personally feel exceeds the bounds of the directive
* The public also loses it's "first sale" rights.
  - if encryption is used to tie a work to one individual, it would be
    illegal to exercise these rights.
* Do we have SMEs on our side, or is this a purely consumer issue.
* Do we wait for legislation to be drafted and then oppose it or do we
  attempt to influence the drafting
* In either case, whom would we address letters to?
* Are there other consumer groups interested in these issues? What about the
  competition authority?... Do we have one?

QUESTIONS:
* What are rights anyway?
  - there are things we are currently allowed do with a copyrighted work.
    A good example is lend it to a friend. But there is nowhere (that I
    know) in law where it actually says "You may lend copyrighted works
    to your friend". Rather, by not excluding such an activity it
    implicitly allows it. I would like to claim this lending works to
    friends as a right, but "non-exclusion in law" seems a rather weak
    support for this right.
  - As Niall hinted, it may be that many of the things we consider as
    rights are merely things that weren't illegal "yet"!
  - I mailed the list recently describing certain activities "guaranteed"
    by the Irish Copyright Act 2000. I'm no longer so sure, but I will
    try and make a definite statement soon. We really need a lawyer for
    this stuff!