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List:       dmca-discuss
Subject:    [DMCA_Discuss] How the web turned into a minefield
From:       Vladimir Katalov <vkatalov () elcomsoft ! com>
Date:       2003-10-27 9:46:33
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How the web turned into a minefield

New EU legislation coming into force next week could turn such
innocuous activities as downloading files and playing CDs into a
criminal offence. Dominic Timms investigates

Monday October 27, 2003
The Guardian

http://media.guardian.co.uk/mediaguardian/story/0,7558,1071538,00.html

For years, we have taken the freedoms of the internet for granted -
watching the latest movie before it hits cinemas or downloading our
favourite music or books. If you live in Europe, it is unlikely that
you either paid for these experiences or worried unduly about the
legality of them. From the end of this month, however, new European
copyright laws will limit your access to some online material and make
downloading or copying certain things - even if they are solely for
your personal use - a criminal offence.

The Orwellian-sounding European Union Copyright Directive (EUCD) is
designed to update copyright protection for the internet age and
harmonise laws across Europe. Its wording is long and complex, but the
thrust of its main proposals is simple: devices that allow you to play
legitimately acquired, but copy-protected, CDs or DVDs on your PC will
be illegal, and file sharers could face an unlimited fine or a jail
term of up to two years.

The EUCD is supported by rights holders, but has been slammed by civil
liberties groups as giving large corporations carte blanche to control
how consumers use the internet and other digital devices, thereby
robbing users of the "fair use" provision. Critics are also concerned
that digital rights management systems, central to the control of
online copyright, will let commercial organisations gather sensitive
personal information about users.

"The main problem with the directive is that it goes further with
copyright than copyright has ever gone before," says Ian Brown,
director of the Foundation for Information Policy Research. He argues
that the implementation of the EUCD will do nothing to protect
consumers, researchers and business competition, while adopting a
heavy-handed approach to the criminalisation of copyright
circumvention. "Copyright had always focused on people infringing
rights and making copies. This goes further and says that any kind of
technology that can help you do that is now illegal. The record
companies are trying all sorts of ways to try to prevent copying -
such as releasing CDs that you can listen to on a hi-fi but can't on a
PC because it won't read it. The EUCD says it is illegal to break
those copyright mechanisms even if you do it for a perfectly valid
reason. So, if you buy a CD and want to listen to it on your PC at
work, which is quite legitimate, you can't."

The resulting legislation, which affects more than just music, is
similar to the controversial US Digital Millennium Copyright Act
(DMCA). This, its opponents argue, has been employed by rights holders
to limit competition, restrain free speech and constrain the way
people use copyrighted materials.

"The DMCA has already proved to be a disastrous mistake in the US,"
says Robin Gross, executive directive of civil liberties group IP
Justice. "The ban on bypassing digital controls is so broad that it
has been used to jail an employee of a competing Russian software
company, threaten journalists and researchers over scientific
publications, and prevent innovation and competition. With several
bills to amend the DMCA pending before US Congress, the lesson of the
US experience is to avoid passing overly broad circumvention bans such
as the DMCA and EUCD."

Supporters of the EUCD, however, say direct comparisons of the EU
directive with the US act are erroneous and, unless intellectual
property rights are protected online, legitimate digital enterprises
simply can't work. They also deny allegations that the policy is being
dictated by a small number of wealthy lobby groups. "This isn't just
about large corporations," says Andrew Yeates, executive director of
the music business's trade association, the British Phonographic
Industry. "As we have less manufacturing and more people creating and
designing things, more and more people in the UK - journalists
included - are going to be reliant on intellectual property rights. If
we don't get a structure protecting those rights in this country,
there are going to be a hell of a lot of jobs lost and other knock-on
effects. It might seem like big corporate interests at the moment, but
it's much broader than that."

The UK Patent Office, which is overseeing the consultation and
implementation of the EUCD in this country, says it has listened to a
wide range of opinions. "To say the UK Patent Office is entirely in
the thrall of one particular lobby group is not really fair," says Dr
Jeremy Philpott of the UK Patent Office. "We have taken account of all
views that were present and made a measured and balanced response."

While rights holders and lobbying groups such as the RNIB were alerted
to and invited to take part in the original consultation process last
summer, legal experts have expressed surprise that there has been no
wider public debate on the directive. "There was a consultation in
August 2002, when the Patent Office put out a series of proposals,"
says Mark Owen, head of intellectual property at the law firm
Harbottle & Lewis. "But that was only made available to people who
knew about it already. While there isn't really a consumers' body that
deals with that sort of thing, the fact that there has been absolutely
no public debate is quite astonishing."

The Patent Office, however, says changes in the UK amount to little
more than a tweaking of the existing 1988 copyright legislation. "It
doesn't seem to lay the grounds for embarking on a major PR exercise
when the directive isn't about significant changes," argues Philpott.
Not informing people about changes to a law that most people know
absolutely nothing about hardly contributes to the education process
that rights holders like the BPI say is vital to the effectiveness of
the new directive. With experts suggesting that a rash of legal
actions against individual internet users is unlikely - simply because
UK criminal courts are not set up to deal with them - persuading users
rather than punishing them will be key.

Whether or not the directive is used more as a deterrent than a
punishment, it will still have a major impact on individuals and
institutions and could, according to Owen, change our entire approach
to rights-protected works. "Over time it could change the whole nature
of copyright and the way we buy and sell copyrighted works. Eventually
you may realise that what you are getting is not a thing but some sort
of licence to access a concept and that licence is limited in all
sorts of ways."

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