[Fsfe-ie] EU direcitves being rushed into Ireland before presidency

[Ben North]

Ciaran O'Riordan wrote:
> I got a mail yesterday from Tony McGrath, the guy in charge of
> implementing the EUCD/InfoSoc in the Department of Trade, Enterprise,
> and Employment.  Our of courtesy, I'd like to send him a mail by
> lunchtime today acknowledging his mail.

Just to say at the start: IANAL, but I have read the relevant sections
of the Act of 2000.

> So, do I suggest Ian Clarkes rewording for the definition of "protection
> defeating device":
>
>  "which has only a limited commercially significant purpose or use other
>   than to circumvent a rights protection measure to facilitate the
>   infringement of copyright law"

It's tricky.  Thinking about DeCSS, for example, it would be difficult
to argue that it's not a protection-defeating device.  I think our point
might be that it should be legal to own (and publish, etc.) this device
because it has substantial non-infringing uses.  Banning a tool because
it could be used to do something illegal seems overreaching.

> Or is David O'Callaghan right in pointing out that legal access to works
> cannot be blocked.

I think this is probably the point we should strive to ensure is made
very clearly in the new law.

> > 5. The Act of 2000 is amended by substituting for section 374
> >    the following:
> >    Rights Protection Measures and Permitted Acts
> >     "(1) Nothing in this Chapter shall be construed as operating to
> >         prevent any person from undertaking the acts permitted -
> >         (a) in relation to works protected by copyright under Chapter 6
> >          of Part II,

Chapter 6 of part II includes sections 49 -- 106 of the act, and grants
general permission to do things like copy blueprints of a building if
you're trying to reconstruct it, as long as the building was initially
built under licence of the blueprint-copyright-holder.  As well as the
more usual "fair-dealing" rights such as for criticism or review.  There
are quite a lot of "it is not an infringement of copyright to..."
sections.  I read somewhere else that Ireland has a very liberal
copyright law.

> >         (b) in relation to performances, by Chapter 4  of Part III, or
> >         (c) in relation to databases, by Chapter 8  of Part V.

I haven't looked through these sections in as much detail, but they
cover a whole range of "permitted activities" for performances and
databases respectively.

> >            (2) Where the beneficiary has legal access to the
> >             protected work or subject-matter concerned, the
> >             rightsholder shall make available to the beneficiary the
> >             means of benefitting from the permitted act.

I think this was the approach used in Britain's implementation, which
was that the member of the public wanting to exercise a "fair-dealing"
type right with respect to a work protected by encryption etc. is
supposed to write to the copyright holder and say "please give me access
to an unencrypted version of this work because I want to do X with it".
And if the rights-holder doesn't, then:

> >            (3) In the event of a dispute arising, either party may
> >             apply to the High Court for an order requiring a person
> >             to do or to refrain from doing anything the doing or
> >             refraining from doing of which is necessary to ensure
> >             compliance by that person with the provisions of these
> >             Regulations."

the member of the public can apply to the High Court.  This seeems
pretty unworkable.

I think what we want is for the law to be absolutely clear that
circumventing rights-protection measures (or publishing circumvention
software) is not illegal if done to facilitate "permitted acts".

In general I think we might be better off with just trying to explain as
succinctly as possible what it is we're worried about, rather than
trying to suggest new wording.  We don't want to pretend to be experts
in drafting legislation when we're not.  (At least, I'm not; maybe
others on the list are more qualified.)  Maybe our best bet is to press
the point that the set of permitted acts is part of the "copyright
bargain" that the public has made with rights-holders, and
rights-holders should not be allowed to "trump" those permissions by
using protection-measures.

It's getting close to lunchtime so I'd better send this off :-)  Hope it
makes some sense and is useful.

I've got a foul cold at the moment so might not make this evening, but
will try to call in for a bit at least.

Ben.