[Fsfe-ie] Letter about EUCD implementation
malcohol at eircom.net
Fri Dec 12 12:53:31 CET 2003
At last night's meeting, Teresa Hackett gave us an overview of the
situation with the EUCD.
* Although it could have been worse, the EUCD is very bad.
* It is now law and there is nothing we can do about it.
* The Irish Government is compelled to implement a compatible law and if it
doesn't it will get into trouble.
* The only thing we can do is try to influence the interpretation.
Another issues was raised:
* The "Enforcement Directive" is currently working its way through the
system. This is concerned with the penalties for infringements under
the EUCD, and whether they will be crimes or not. Joy!
Anyway, I've started working on the letter which expresses our concerns
about the draft of the Irish implementation.
The material I've attached focuses exclusively on Section 374. I'd
appreciate your opinions, changes, criticisms on any or all aspects of
the document. Especially important is ensuring that my reading of the
laws are correct.
I will continue to work on that section and start working on the other
aspects of the draft over the weekend.
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In the Irish Copyright and Related Act 2000, Chapter 6 of Part II makes
many acts explicitly non-infringing. It is clear that these acts are
considered important since two separate provisions are made to protect
them. Firstly, Section 2(10) asserts that a user's rights to perform
these acts cannot be overridden by an agreement. Secondly, although
Chapter 1 of Part VII gives substantial legal support for protection
measures, Section 374 asserts that this Chapter "shall not be construed as
operating to prevent any person from undertaking the acts permitted". In
particular, it explicitly allows "any act of circumvention required to
effect such permitted acts".
Clause 5 in the draft proposes to replace Section 374. The result of the
change is that, if a rights protection measure is used, the user may no
longer perform these non-infringing acts. As such, it fails to "preserve
the declaratory aspect of the existing section". We acknowledge that the
replacement aims to preserve some of the user's rights, but we believe
that the provisions put forward to do so are unworkable. The rightsholder
is required to "make available to the beneficiary the means of benefitting
from the permitted act" but no details are given which explain how, when
or in what form such means would be provided. That this is unsatisfactory
is made clear by Subsection 3, where a procedure for disputes is
discussed. Yet, allowing a user to "apply to the High Court" is an
unrealistic way of protecting his or her rights.
The only way of ensuring that users can actually avail of the benefit of the
permitted acts by letting them to perform those acts. We strongly urge you to
leave Section 374 as is.
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