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The `European Union Copyright Directive' (EUCD) sucks a great deal. The CDR has lots to say about it.
I wrote the letter below to Anne Campbell, Labour MP for Cambridge. I present it here for information; if you intend to write to your MP about the baleful effects of the EUCD, please do not copy this letter -- sending many identical letters to MPs will diminish the effect of all of them. I will keep this page updated with any response I receive.
Anne Campbell has replied, telling me that she has written on my behalf to Douglas Alexander Esq MP, who is `Minister for E-Commerce', and that she will write to me again when she has received a reply.
No reply from Mr. Alexander; I've written another letter to chase up the response.
I have received a reply from Melanie Johnson MP, Parliamentary Under Secretary of State for Competition, Consumers and Markets, dated 16th May 2002. It has been forwarded to me by Anne Campbell. You can read its text here.
I have again written to Anne Campbell for clarification on some of the points in Melanie Johnson's letter.
I have again written to Anne Campbell, trying to chase up a response to my previous letter.
I have received a short response from Anne Campbell, telling me that
I have written on your behalf to Melanie Johnson MP asking for clarification of the points that you raise and will write to you again as soon as I have a reply.
This is dated 28th June -- that is, it wasn't provoked by my letter of reminder above. It just takes about a month to get a reply. Hmm. I guess that MPs will have been busy processing zillions of 'faxes complaining about the recent RIP Act silliness.
OK, it took 52 days to get a reply to my letter.
Some impressions on `the story so far':
This is the bit where I should make some intelligent comment about the nature of democracy in the digital age, or at least drag out some tired cynical quip -- and god alone knows that's what you'd expect me to do -- but I haven't the heart.
26th March 2002.
As you may be aware, the United Kingdom will shortly be required to incorporate into law the provisions of the `European Union Copyright Directive' (EUCD), which provides for modifications to existing UK copyright law and contains provisions relating to the perceived copyright implications of new technology.
At present, digital media such as music on compact disks or minidisks, or computer software sold on disk or over the Internet, or digital texts (`e-books') are protected by copyright law in the same way as any other works. Reproduction of copyrighted works, except for a few `fair dealing' provisions mainly concerned with private study or criticism, is prohibited unless explicitly permitted by the rights holder.
However, rights holders argue that copyright law is difficult to enforce when media are available on the Internet, or could easily be copied without authorisation by the users of the Internet. They have responded by implementing `technological measures,' that is, by inventing restrictions which are designed to physically prevent the use of the material in ways not permitted by the rights holder. A simple analogy to such a measure would be to prevent photocopying of a document by printing it in black ink on red paper; both colours will photocopy to black on a normal photocopier. The intention of the EUCD -- in particular Article 6 of the Directive -- is to protect such technological measures from attempts at circumvention, whatever their aim. If implemented in too repressive a fashion, its effect will be to diminish personal freedom, discourage innovation, and help media companies rip off UK consumers. Along the way, it will discriminate against the physically handicapped and perhaps make it impossible for public libraries to hold new digital media long into the future or to lend digital information to the most underprivileged in our society who may otherwise be unable to access the new sources of information which advances in digital technology have made available to those who can afford them, and it will make it harder for individuals and small companies to create digital content. None of this is obvious, and the reasons are subtle:
Technological measures are often used not just to prevent copying, but also to restrict the usefulness of digital media. For instance, the `content scrambling system' which is intended to prevent the copying of films stored on digital versatile disks (DVDs) requires computer programs and physical DVD players to contain a `key' which is used to unscramble the film on the disk before playing; the `key' must be obtained from an industry association, which has used this power to prevent individuals from designing new DVD playing software. (As it happens, the `content scrambling system' does not prevent the copying of DVDs by commercial pirates at all, though it may for short time have had some limited value in preventing copying of DVDs on the Internet.)
Similarly, each DVD which is produced is digitally marked with one of five `region codes'; unmodified DVD players sold in one region -- say, Western Europe -- will not play DVDs sold in another -- say, North America. This enables companies which sell DVDs -- mostly film studios which are based in the United States -- to charge European consumers more than their counterparts in the United States for the same film, since the DVD players sold in Europe should not play the cheaper DVDs sold in the United States. For instance, a copy of the feature film Dr. Strangelove costs $23.99 or around £16.80 when purchased from Amazon.com in the United States, or £18.99 when purchased from Amazon.co.uk in the UK. In other cases, this price difference is even more marked, and often DVDs are made available in the UK long after they go on sale in the United States, if at all.
Naturally, consumers in Europe are reluctant to pay over the odds for DVDs, and so many of them have decided to modify their DVD players to ignore the `region code' indicated on each disk, or to buy DVD players which are already modified in this way. They are then able to purchase DVDs wherever they choose: a clear victory for globalisation. The EUCD will make such a practice illegal, preventing European consumers from paying a fair price for DVDs.
Many computer users in Europe choose to use the free Linux operating system rather than Microsoft Windows, which is expensive and does not meet the needs of many users. A number of people wish to develop software to allow them to play DVDs using their computers, but the DVD industry consortium has refused to give them access to the keys required to operate the `content scrambling system', making the software -- in principle -- impossible to develop. In fact, the `content scrambling system' is easy to circumvent, and software which unscrambles the contents of the disks so that they may be used with Linux is widely available. The EUCD will make it illegal to distribute this software or to develop new software to play DVDs without the permission of film studios in the United States.
Already, in the United States, a piece of legislation called the Digital Millennium Copyright Act (DMCA), which is broadly analogous in intent to the EUCD, has been used to suppress the publication of a piece of software intended to allow the partially sighted to make use of digital texts, and its author, Dmitri Sklyarov, was arrested and threatened with jail for writing the software, simply because the digital texts incorporated a weak type of technological measure. The EUCD contains no protection for the rights of the physically disadvantaged to make use of digital media, although a member state may incorporate such rights into its legislation. Even in the latter case, `voluntary measures taken by rights holders' trump such rights, however restrictive the terms demanded by the rights holders.
Similarly, unless explicitly incorporated into local legislation, rights holders may prevent the use of digital works for uses which are currently regarded as fair dealing: use for study or criticism, for instance. This is a gross infringement of personal and academic freedom.
Many pieces of software, as well as physical devices such as televisions, will need to be modified to support these technological measures. Companies which work in this field -- many of them based in Cambridge -- will have to waste time and effort on compliance with EUCD, making them uncompetitive and taking resources away from useful innovation. In addition to the harm to be visited on consumers, the EUCD will further damage the high technology economy in the UK.
Further, the technological protection measures used for digital media may change at the whim of the companies which publish the media. They may impose any conditions they want using technological measures: books which can only be read once, music which can only be played in the afternoon, or television programmes which can't be watched when you are eating. Some companies anticipate with glee the day when electronic books will record which pages have been read, and in what order, and transmit this information back to the publisher to facilitate invasive marketing. The potential for terrible invasions of privacy -- all protected by law -- is immense.
A work which is bought today might not be usable one year from now; twenty years from now it is likely that it will not be usable; and a century hence -- long after the copyright itself has expired -- the company which made it will probably not exist at all, and the work may be inaccessible forever. Equally, a library which owns a copy of the work may not be able to lend it to others, since the technological measures which protect it may be designed to allow only the owner of the copy to access it. This, clearly, is iniquitous, since it allows the publishers of digital works to discriminate against those who have most need of inexpensive access to information.
Just as bad is the fact that the designers of the technological measures themselves -- large media companies -- will not be obliged to permit anyone to use them. Since the industry's intention is for all digital media to be protected by a few, standardised, technological measures, this will, in effect, give large media companies a veto on publication of digital media. Whereas anyone can print a book or have a CD pressed, it is not possible for a small company or individual to publish a film on DVD without the blessing of major motion picture companies. This is bad for competition and it is terrible for freedom of speech.
What can be done about all this?
The EUCD contains considerable latitude for member states to choose how to implement its provisions. Although any modification to the copyright law based upon the EUCD will be repressive, its worse effects can be mitigated by intelligent choices in the implementation of legislation.
In particular, the Government should implement all of the exceptions for fair dealing which are permitted by Article 6.4, and implement legislation to protect the rights of the physically disadvantaged, such as the Copyright (Visually Impaired Persons) Bill currently before Parliament. In addition, the suppliers of digital media should be required to supply -- for a fair price -- copies to libraries which may be lent to borrowers without restriction and which will continue to work indefinitely into the future so that no part of our written or recorded heritage will be destroyed when a record company, film studio or publisher goes bust.
Further, the worst effects on consumers may be mitigated by a liberal interpretation of Article 6.3, which defines what constitutes an effective technological measure. Many technological measures, such as the protections on current electronic books and the `content scrambling system' for DVDs, are plainly not effective, in that they have been circumvented. The government should write this definition into law: a technological measure which has been circumvented is, ipso facto, not effective, and should not be afforded the protection of law.
With intelligent implementation of the EUCD, consumers in the UK can be protected from its worst effects, and innovation and economic growth in the important creative sectors of the economy will be encouraged. A repressive implementation will stifle growth and free speech, punish consumers and the disadvantaged, and perhaps make it impossible for our descendants in the future to access the works of art and records of our culture.
I hope that you will give this matter your full attention and work to mitigate the effects of this repressive measure.
Copyright (c) 2002 Chris Lightfoot. All rights reserved.