EU Copyright Directive article

[Peter Fairbrother]

http://www.theregister.co.uk/content/6/28015.html

The XXX Clause is Obscene
By Brian Esler
Posted: 08/11/2002 at 15:24 GMT

Last summer, the EU passed a new Copyright Directive, which is intended to
limit your future ability to listen to, share, trade and enjoy digital
music, films or books. The UK's proposed implementation of that Directive
(available at=20
http://www.patent.gov.uk/about/consultations/eccopyright/summary.htm )
appears to have been written solely with industry -- and not consumers -- i=
n
mind. In short, we all may lose our ability to share digital media unless w=
e
speak up.=20

While there are problems with the Directive and its UK implementation which
may only be interesting to a copyright lawyer (and I am one), there is one
provision in particular which should scare everyone (except a few global
media conglomerates). A new section is proposed for the Copyrights, Designs
& Patents Act 1988 entitled =B3XXX.=B2 The XXX provision will virtually
eliminate all vestiges of fair dealing, and eventually of file sharing.

Here's why. Music and film companies are doing everything they can to
eliminate file sharing (just look at what happened to Napster). One of the
weapons in their arsenal is technological measures to protect their files -=
-
encryption, copy protection, etc -- ie, digital locks. Previously, however,
it was not entirely clear that fashioning or distributing a key to that loc=
k
(ie, a decryption code like DeCSS) without the media company's authority
would actually be illegal. The EU's new Copyright Directive mandates that
member states make it illegal, but does leave some wiggle room (if you're
really interested in some of the background to this and why the Directive
might itself be illegal, see the article
http://www.bileta.ac.uk/02papers/esler.html ).

The UK had at least two choices under the Directive -- put the burden of
protecting consumer rights on the global media companies (where it belongs)
or put the burden on consumers. The Patent Office has made its choice =AD and
is putting the burden squarely on consumers. Under proposed provision XXX,
if you buy a CD which is copy-protected, and it doesn't play in your
computer disc drive, or won't download to your MP3 player, your only remedy
will be to send a letter of complaint to the Secretary of State.

If Mr. Blunkett in his magnaminity (and spare time) decides that you
actually should be allowed to exercise your legal right to play the disc yo=
u
bought, he will then send a letter to the offending media giant instructing
it to ensure that you (and probably only you) are able to play the bloody
disc. If Bertelsmann tells him (and you) to take a long walk off a short
pier, only then will you (but no one else who may have experienced the same
problem, but failed to contact the Secretary of State) have the right to
hire a lawyer and sue Bertlesmann. How many people do you think are actuall=
y
going to go through the bother?

The burden must be on industry to comply, not for consumers to complain.
Section XXX of the proposed changes to the Copyright Code should be altered
to make clear that media companies cannot employ technology which does not
allow for existing fair dealing rights, including time-shifiting, and that
circumvention of that technology is permitted to exercise any exception to
copyright. UK law should also make clear that home copying by consumers is =
a
right, not a privilege. Consumers should not have to complain to the
Secretary of State before being allowed to sue when sold a defective produc=
t
-- and any digital product that does not permit the full exercise of all
copyright exceptions is such a defective product.

=A9 Brian Esler 2002. The right of Brian Esler to be identified as author of
this work has been asserted by him in accordance with CDPA 1988. This
article may be freely reproduced.