The proposed UK implementation of the EUCD was released by the Patent Office on 7 August, and heralded the beginning of a consultation period that ends on 31 October. In this article, flaws in the draft law are examined, in the hope that this will inspire some to respond to the consultation (see the STAND webpage) and prevent the damage that will occur if it is implemented as it stands.
The corrosion of fairness
The most worrying aspects of the EUCD are the provisions it mandates for the control of distribution and circumvention of copy-protection technologies. Rights holders argue that the ease of digital copying in the age of the Internet is such a threat to their business that they must be allowed to use copy-protection technology on their music, films, and books, and that states must legislate to forbid any circumvention of such protections, under practically any circumstance at all. For them, the right to go after infringers is not enough – they would like to prevent infringements in the first place.
Unfortunately, because copyright is a government approved temporary monopoly, various exceptions to its provisions have always existed and are generally classed together under the heading of ‘fair dealing’ (or ‘fair use’ in the US), in the interest of ensuring balance between the rights of owners, and those of the general public. Fair dealing permits such acts as copying a work for private study or research, copying small extracts for the purpose of criticism or review, and so on.
In some countries, the US and most of continental Europe included, the right to make copies of an entire work for personal use is also accepted. Regrettably, we lack this exception in the UK. The plethora of uses permitted by fair dealing are so diverse that it is not practical, or even possible, to design a copy-protection technology that prevents copying without simultaneously denying the consumer some or all of his rights of fair dealing.
The EUCD recognises this, and has introduced exceptions designed to restore the ability to engage in fair dealing to those who have purchased copy-protected works. However, the UK’s proposed method of implementing these exceptions is ludicrous.
If the rights holder denies a person permission to benefit from such an exception, he or she should write to the Secretary of State for Trade and Industry and ask for intervention. This means that university lecturers or school teachers will need to appeal to the Secretary of State on each and every occasion that they need to make a copy of part of a copy-protected CD for teaching or research. Librarians, archivists, private individuals, and the disabled can expect to be similarly encumbered.
Clearly, what is needed is a statutory obligation for rights holders to make exceptions available to deserving beneficiaries, making failure to do so punishable in court. It should absolutely not be incumbent upon each beneficiary to make personal appeals to the Secretary of State on each occasion that they are inconvenienced by technical protection measures.
The software industry could be badly affected; at present, it seems that there is no provision for circumventing protections in order to create interoperable software products. This is called reverse engineering. Companies who use protection mechanisms on their file formats will be able to prevent others writing software interoperable with theirs without permission.
The greedy and unscrupulous might even use the lack of such an exception to close the door on developments of interoperable open-source software. In the US, Sony has already used protection mechanisms to prevent unlicensed developers releasing software for Playstation 2, and has threatened a developer of free software for their Aibo robotic dog with a lawsuit under the DMCA.
Although existing UK copyright law explicitly permits reverse engineering, it is not at all clear that the proposed EUCD implementation will permit it where circumvention of a protection mechanism is necessary.
Tightening the noose
The DMCA has been criticised for its ‘chilling effect’ on research into cryptography, notably after a professor at Princeton University, Edward Felten, was threatened with a lawsuit by the Recording Industry Association of America (RIAA) when he decided to publish a paper describing weaknesses in a new digital watermarking technology.
Felten has since received assurances from both the US government and the RIAA that they won’t attempt such a trick again. The DMCA explicitly permits circumvention and the publication of information about it for the purpose of cryptographic research. British researchers will have no such reassurances if the Patent Office gets its way. They could face criminal prosecution for publishing details of weaknesses in protection mechanisms.
Academics can appeal to the Secretary of State to gain access to a protected work, but they have no recourse if the object of study is the protection mechanism itself. And this despite the fact that the preamble to the Directive contains the words ‘this protection should not hinder research into cryptography’; it is paramount that the proposal is changed to allow cryptographic research to proceed without harassment.
As it stands, the UK implementation of the EUCD will hinder research into cryptography, it will make criminal current common practices of the music industry (the disabling of the serial copy management system (SCMS) on digital audio tape (DAT) drives), it will give software companies unwarranted control over the creation of software products interoperable with their own, and it will provide an inadequate and entirely impractical mechanism for beneficiaries of the Directive’s exceptions.
It is imperative that these weaknesses are corrected before the proposed legislation is made law, and therefore it is incumbent upon all of us to make our criticisms known to the Patent Office during the consultation period. If we fail to do so, we will be even worse off than the Americans are under the DMCA.
