Fwd: [Fsfe-ie] Comments on New Draft

[Malcolm Tyrrell]

Hi there.

I believe we intend to send the e-mail tomorrow after lunch.
Assuming we will attach a list of signatories to it, would everyone who
feels happy with the draft please send an e-mail to me (OFFLIST!)
containing:
Your name, and (optionally) your job and (optionally) your employers.
The e-mail is likely to change a little before being sent, so you may
want to wait until after final draft is produced.

I attach a new draft with some of Teresa's suggestions mixed in.
A few things still need doing:
1. Address at the top (e.g. To Whom It May Concern)
2. Introductory paragraph
3. A paragraph about payments --- given that are happy with the changes,
   should we bring it up at all?
4. I'm not sure that we should talk about the special exemption given to
   certain measures in other countries without listing precisely what
   special exemptions we would like (all of them, of course). So perhaps
   paragraph 6 of the draft should be removed or adjusted.

If you have any suggestions or complaints, please send them straight away!

Good luck,

Malcohol.
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We welcome the conclusion of the Department not to subject the exceptions
in Articles 5.2 (a), (b) and (e) to payment, in view of the fact these are
subject to the rigours of the three-step test.

Clause 2 of the draft adds two further ways in which a device might be
considered a "protection defeating device". Our concern here is with the
test of "limited commercially significant purpose or use". There is a lot
of software available which has enormous utility value but might,
nevertheless, be considered as having "limited commercially significant
purpose or use". Some free software, for example, would this have
property. In certain cases, a piece of general purpose software might aid
in the disabling of a protection measure and inappropriately fall under
your proposed definition. We don't feel it is your intent to prohibit
useful general purpose software in this way. We suggest that this test be
altered.  Perhaps "limited utility" would be more suitable. 

In the Act of 2000, Chapter 6 of Part II makes many acts explicitly
non-infringing. It is clear that these acts are considered important since
two separate provisions are made to protect them. Firstly, Section 2(10)
asserts that a user's rights to perform these acts cannot be overridden by
an agreement. Secondly, although Chapter 1 of Part VII gives substantial
legal support for protection measures, Section 374 asserts that this
Chapter "shall not be construed as operating to prevent any person from
undertaking the acts permitted". In particular, it explicitly allows "any
act of circumvention required to effect such permitted acts".

Clause 5 of the draft proposes to replace Section 374. The result of the
change is that, if a rights protection measure is used, the user may no
longer perform these non-infringing acts. Although the principal expressed
in the current section is maintained, by removing the means to perform
these acts, that principal becomes an aspiration rather than a reality.
The rightsholder is required to "make available to the beneficiary the
means of benefitting from the permitted act" but no details are given
which explain how, when or in what form such means would be provided. That
this is unsatisfactory is made clear by Subsection 3, where a procedure
for disputes is discussed.

Although we welcome that the change places obligations on the
rightsholder, applying to the High Court as a means of redress is wholly
inadequate. For a student who needs to exercise fair dealings rights with
respect to an e-journal, or a blind person who wishes to use a particular
screen reading technology to access an e-book, this is an unrealistic
solution. To be effective, a dispute resolution mechanism would need to
have clear, transparent procedures regarding time limits, costs, class
actions, level of access provided, etc. Otherwise, the unequal position of
the parties effectively renders the remedy useless. We do not believe that
this is your intention.

Some countries have chosen to provide protection for certain exceptions in
their implementation of the InfoSoc Directive. For example, the UK have
recognised the value of research into cryptography with an exception for
research of this kind (see Recital 48 of the InfoSoc Directive). Other
countries are considering special provisions for non-infringing activities
such as making a backup copy or platform shifting by consumers, for
example, to listen to a legally acquired music CD in the car.

We conclude by reiterating our two main points: Firstly, the definition of
"protection defeating device" should be changed to avoid its inappropriate
focus on "commerciality". Secondly, since the only way of ensuring that
users can actually avail of their benefit of the permitted acts by letting
them perform those acts, we strongly urge you to leave Section 374 as it
was.

Thank you for your careful consideration,

Malcolm Tyrrell