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Anne Campbell forwarded to me a letter from Melanie Johnson MP in reply to my original letter. Since Melanie Johnson's letter didn't say very much, I've sent Anne another one in an attempt to get some more specific answers.
28th May 2002.
EU Directive on copyright
Thank you for passing on to me the very informative reply you received from Melanie Johnson MP regarding the matters raised in my letter to you of March 26th. I am very grateful for the time which you have spent finding answers to my questions.
However, there are a few issues which Ms. Johnson's letter does not address and on which I would appreciate clarification. She states that ``[the Directive will not] have unjustified or undesirable effects as Mr. Lightfoot suggests.'' However, there are any number of cases in which it appears to me that the Directive certainly will have specific unjustified and undesirable effects. In particular,
The letter states,
... our general intention is to retain, as far as possible, existing exceptions in UK copyright law, including those for libraries and archives, and those in the education and domestic areas.
While I am pleased to hear that the government is working to maintain existing rights in this area, it is not really clear how this is to be achieved. Without a more specific explanation, there seems to be a significant risk that there will arise a situation like that which prevails in the United States: although fair dealing rights will still exist, it may become illegal to exercise them, because to do so will require the circumvention of a technological measure.
For instance, in studying (say) a piece of music, I may want to exercise my fair dealing right to privately copy a short extract of it. However, a technological protection measure which prevents any copying at all might be in place, and the Directive will give this measure legal protection even if it were possible to circumvent it; this would effectively prevent me from exercising my fair dealing right even though it ought to be perfectly legal to do so. It would be reassuring to know how this right is to be preserved in the new legislation.
A more serious example applies to libraries and archives. Consider, for instance, an electronic or `e-' book. It is commonplace for electronic books to be `locked' so that they may only be viewed on a single computer; a technological measure is employed to prevent one purchaser of the book from lending it to others who own different computers. The same technological measure would affect a library; worse, the particular computer to which the e-book is `locked' cannot possibly be expected to last indefinitely as it would need to if the contents of the e-book is to be preserved for the future. Again, it is not obvious to me how this problem is to be eliminated, so that libraries may continue to preserve and lend out digital information.
As Ms. Johnson points out, the government is supporting the Copyright (Visually Impaired Persons) Bill. If enacted, will the provisions of this Bill override those of the Directive, so that technological measures cannot stand in the way of making works accessible? The Bill does not create a right of access to works for visually impaired persons, but, rather, permits the making of accessible versions of copyrighted works by or for the visually impaired. Will rights holders be obliged to make works available without technological measures which would prevent their being made accessible to the visually impaired? What legislation is planned to protect the rights of other physically disadvantaged individuals, such as the hard of hearing who need access to subtitled films and television programmes?
Can any more information be given about the nature of the review process which is to be established to keep copyright law up to date with changing technology?
Ms. Johnson argues that the region coding of DVD players is ``not a copyright issue as such... and would seem unlikely to be caught by Article 6.'' I am afraid that I do not share her optimism; paragraph 47 of the Directive states that protection is to be given to measures
designed to prevent or restrict acts not authorised by the right holders of any copyright, rights related to copyright, or the sui generis right in databases.
It seems to me that this provision could be interpreted to give protection to restrictions which manufacturers wish to have applied to their products, such as the region coding of DVDs. Indeed, many DVDs are supplied with a `license agreement' which purports to restrict the rights of its owner more narrowly than the copyright law itself; no doubt the film studios would argue that this is a `right related to copyright,' and that a technological measure which enforces it should enjoy Article 6 protection.
Will UK legislation be drafted to protect the rights of consumers who purchase DVDs and DVD players from abroad?
In my letter I gave as an example of the effects of the United States Digital Millennium Copyright Act, which roughly parallels in intent the Directive, the attempts by film studios in the United States to suppress implementations of DVD playing software of which they do not approve, even though playing a DVD is clearly a non-infringing use. How will UK legislation address the issue of circumventing technological measures in order to enable non-infringing uses? Will the rights of UK individuals and businesses to develop innovative and economically important products be preserved?
Clearly, many of these issues could be addressed by ensuring that the UK's implementation of Article 6(4) of the Directive gives the strongest possible protection to the rights of consumers, so that they are not prevented from exercising their legitimate rights by technological measures implemented by rights holders ostensibly for another purpose.
Further, I do not fully understand how it is expected that implementation of the Directive will, as stated, ``[ensure] continued and effective protection of copyright material in the digital age'' or ``assist in the fight against piracy on the Internet.''
Unauthorised copying is already illegal. Technological measures will succeed in preventing copying only if they are actually physically effective in doing so: the fact that it will be illegal to circumvent them is hardly going to matter to those already committing an illegal act. Article 6 will not by fiat make technological measures more technologically effective, and so it is unlikely to make any difference to those who attempt to circumvent them for the purposes of unauthorised copying.
I do not understand the benefit to consumers or to rights holders of creating new law in this field, and would be much obliged for an example of how Article 6 of the Directive will specifically assist in the suppression of unauthorised copying.
Copyright (c) 2002 Chris Lightfoot. All rights reserved.