[Fsfe-ie] Re: Copyright and the EUCD

adam beecher lists at beecher.net
Thu Dec 4 15:17:57 CET 2003

Is all this stuff going on a website somewhere, or at least a Wiki? I seem
to see a lot of State of the Onion posts on this list.


> -----Original Message-----
> From: fsfe-ie-bounces at fsfeurope.org
> [mailto:fsfe-ie-bounces at fsfeurope.org]On Behalf Of Malcolm Tyrrell
> Sent: 04 December 2003 11:53
> To: fsfe-ie at fsfeurope.org
> Subject: [Fsfe-ie] Re: Copyright and the EUCD
> This is my attempt to bring together some information on the EUCD and
> suggest some plans of action. I apologise for its length.
> I am not especially up to date on this issue so please mail corrections
> and additions to the points I've made. It's just intended to be a
> launching platform for our work on this issue.
> By the way, if we get any lawyers on board with respect to the patents
> stuff, we should also suggest they consider the copyright stuff as
> well.
> Enjoy,
> Malcohol.
> ====
> * Aspects of the EUCD restrict activities we, in the free software
>   community consider legitimate.
>   - Under the EUCD, some of these activities could become crimes and be
>     punishable with prison sentences.
>   - In particular, our ability to produce software which can read and
>     manipulate date formats.
> * Bad for consumers
>   - see problems with EUCD section below
> * The EUCD is just bad law.
>   - see first point in the Problems with EUCD section below
> * Describe the problems with the EUCD.
>   - there should be plenty of material on-line to leech from
> * Find out how copyright currently operates in Ireland and, more
> generally,
>   Europe.
>   - is there a useful document/book/website which explains why we have
>     copyright in Europe, or the history of copyright in Europe?
>   - In the US, they have an explicit position. Quoting the Stallman talk,
>     Copyright and Globalization in the Age of Computer Network:
>       "For the U.S. Constitution it was proposed that authors should be
>       entitled to a copyright, a monopoly on copying their books. This
>       proposal was rejected. Instead, a crucially different proposal was
>       adopted, which is, that for the sake of promoting progress, Congress
>       could optionally establish a copyright system that would created
>       these monopolies. So the monopolies, according to the U.S.
>       Constitution, do not exist for the sake of those who own them; they
>       exist for the sake of promoting the progress of science. The
>       monopolies are handed out to authors as a way of modifying their
>       behaviour to get them to do something that serves the public."
>     I don't think this is the case in Europe where there may be more of an
>     automatic right to copyright for authors.
> * What is the history of the EUCD?
>   - knowing that the procedure which devised it was poor gives us another
>     small argument against.
>   - why was it drafted?
>     o In response to the WIPO Copyright Treaty and possibly TRIPS, I guess
>     o In response to pressure from <see next point>
>   - who were the major players?
>     o big media companies
>     o big software companies
>   - who, if anyone, address consumer issues during its drafting?
> * WIPO Copyright Treaty and TRIPS
>   - WIPO obviously is important to the EUCD. What about TRIPS?
>   - How many, if any, of the EUCD's restrictions is imposed by TRIPS and
>     the WIPO Copyright Treaty?
>   - Discover whether Ireland is a signatory to TRIPS or WIPO directly, or
>     only indirectly by virtue of EU membership.
> * Find out what the legislative procedure in Ireland will be.
>   - changes in Irish law currently being drafted by Tony McGrath?
> * Reinterpret Free Software arguments in terms of what we have learned
>   about copyright. (Not EUCD specific but more general IFSO work)
>   - Some of the FSF essays interpret the meaning of "copyright" to be the
>     US meaning. We might want to provide more appropriate local arguments
>     instead.
> This is from a brief and shallow reading of "Why the EUCD is Bad" (see
> links section). Most problems are with "Article 6" and some are with
> "Article 3".
> * Copyright Law is replaced by technology
>   - it makes it illegal to circumvent protection measures.
>   - therefore, protection measures can be used to define what people can
>     and cannot *legally* do with a copyright work.
>   - it is irrelevant how feeble the protection measure is.
> * Cryptographic Research
>   - it may become illegal for cryptographic researchers to publish
>     research since they might reveal how a protection measure can be
>     circumvented.
> * Ethical Hacking
>   - it may make the publishing of security holes illegal
>   - this, and the above point, will remove an important force of quality
>     control in cryptography and security. Both technologies will be
>     severely weakened.
> * Competition in the Software Market
>   - "the company that creates a digital format has complete control over
>     how the players should behave, and also control over who should be
>     allowed to create players for that format."
> * Libraries
>   - protected works will make it difficult for libraries to perform the
>     task of preserving material
> * No "first sale" for non-physical works
>   - copies of a work can be tied to an individual buyer, making it
>     impossible sell your individual copy
> * Censorship
>   - copies can be make self-destructive or non-storeable
>   - if we can't keep a fixed copy, it makes it difficult to determine what
>     was actually "published" in the first place
>   - (we can see this already on the web where the old content is silently
>      updated)
> * Mass-market licenses (I'm not sure I understand this point fully)
>   - the law does not give you any guarantee that you can't sign away
>     important rights with a single click on an 'accept' button.
> * These need to be annotated. Of course, first, they need to be read!!!
>   I can't vouch for their quality yet.
> * http://www.ukcdr.org - UK campaign for digital rights
> * http://www.ipjustice.org
> * http://www.eurorights.org - essay: Why the EUCD is bad.
> * Audio files by Robin Gross, and Martin Keegan:
>   http://media.april.org/audio/RMLL-2003/fixed/
> * http://www.ivir.nl/publications/hugenholtz/opinion-EIPR.html
> * http://www.fsfeurope.org/projects/eucd/eucd-fs.en.html
> * http://www.acm.org/usacm/IP/dmca.exemption.htm
> * http://www.eblida.org/topics/position/legaffa.htm
> * Tony McGrath is "the man in charge of producing the draft in
>   consultation with the attorney general"
> * The Attorney General, the advisor to the government on legal
>   matters, and therefore is the chief law officer of Ireland.
> * Teresa Hackett. Worked in Norway on behalf of EBLIDA
>   (European Bureau of Library Information and Documentation Association)
>   http://www.eblida.org. She will hopefully be talking to us at the
>   meeting on 11/12.
> * "The UK implemented a pretty bad interpretation recently":
>   http://www.ukcdr.org/issues/eucd/ukimpl/
> * "The EUCD is a particularly flexible EU directive. Virtually every
>   article of import can be partially implemented or not implemented at
>   all if the member state feels it (a) contradicts a legal tradition of
>   the country (b) would damage their industry and a few other provisos."
> * > The gist of the EUCD is that it will be a criminal act to circumvent
>   > encryption to gain access to copyrighted material.
>   It is however up to the state to decide where it becomes criminal.
>   Most EU states have made large scale commercial piracy the criminal act
>   which I think it was already.  The UK has made individual acts - even
>   finding a hole in the encryption and then reporting it - illegal,
>   punishable by up to three years in prison.
> * "Fair dealing is unauthorised but lawful use of an authors work.
>   A person does not need permission from the author if they want to quote
>   a non-substantial portion of a work, parody the work, make a backup of
>   the work, etc."
> * The UK implementation makes any reverse engineering of anything
>   *containing* a protection device criminally illegal. This I [Niall]
>   personally feel exceeds the bounds of the directive
> * The public also loses it's "first sale" rights.
>   - if encryption is used to tie a work to one individual, it would be
>     illegal to exercise these rights.
> * Do we have SMEs on our side, or is this a purely consumer issue.
> * Do we wait for legislation to be drafted and then oppose it or do we
>   attempt to influence the drafting
> * In either case, whom would we address letters to?
> * Are there other consumer groups interested in these issues?
> What about the
>   competition authority?... Do we have one?
> * What are rights anyway?
>   - there are things we are currently allowed do with a copyrighted work.
>     A good example is lend it to a friend. But there is nowhere (that I
>     know) in law where it actually says "You may lend copyrighted works
>     to your friend". Rather, by not excluding such an activity it
>     implicitly allows it. I would like to claim this lending works to
>     friends as a right, but "non-exclusion in law" seems a rather weak
>     support for this right.
>   - As Niall hinted, it may be that many of the things we consider as
>     rights are merely things that weren't illegal "yet"!
>   - I mailed the list recently describing certain activities "guaranteed"
>     by the Irish Copyright Act 2000. I'm no longer so sure, but I will
>     try and make a definite statement soon. We really need a lawyer for
>     this stuff!
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