[Fsfe-ie] New Draft
malcohol at eircom.net
Sat Dec 13 13:42:43 CET 2003
I've tried to tackle Clause 2 in line with Ciaran's worries. Ian Clarke
also identified a problem with their proposed ammendment, but I don't
think there is anything we can do about that particular problem:
> > 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?
As it stands, the Irish Copyright Act considers a "protection defeating
device" to be a device whose function is to defeat a "protection measure"
without reference to whether this protection measure restricts the user
beyond "fair dealings". So our alternative ammendment:
> "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"
would seem inappropriate in the context of the copyright act (and won't
get us anywhere). The fair dealings problem will be won or lost depending
on what ammendments are made to Section 374.
Anyway, I've attached a new draft. Opinions manditory!!!
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Clause 2 of the draft adds two further ways in which a device might be
considered a "protection defeating device". Our concern here is with
the test of "limited commercially significant purpose or use". There
is a lot of software available which has enormous utility value but might,
nevertheless, be considered as having "limited commercially significant
purpose or use". Some free software, for example, would this property. In
certain cases, a piece of general purpose software might aid in the
disabling of a protection measure and inappropriately fall under your proposed
definition. We don't feel it is your intent to prohibit useful general
purpose software in this way. We suggest that this test be altered.
In the Act of 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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