[Fsfe-ie] Final Draft

Malcolm Tyrrell malcohol at eircom.net
Mon Dec 15 12:37:04 CET 2003

This is the final draft. Please check for typos, "the the"s, and so on.

If you are happy, please send:
* Your name
* (Optional) Your job
* (Optional) Your employer
directly to me.

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To whom it may concern,

Rightsholders in Ireland were broadly satisfied with the protection the
Irish Copyright and Related Rights Act of 2000 offered them:
  "We are pleased that the Irish government has led the way in
  strengthening the rights of copyright owners in music, software and
  databases. This innovative bill will, we believe, serve as a role model
  for other EU countries to follow."
    Dick Doyle, Director General of IRMA, the Irish recording industry
    association, (http://www.ifpi.org/site-content/press/20000711.html)
Yet, users could rely on a broad set of exceptions, such as fair dealing
rights, which acted as a balance to the power given to rightsholders.
Unfortunately, due to intensive lobbying by rightsholder interest groups,
the European InfoSoc Directive failed to find this balance.

We realise that the government is under pressure to implement this new
legislation and we thank you for making a draft available for comment.
Our main concerns are with Clauses 2 and 5 of the draft. However, we would
like to start by welcoming the conclusion of the Department not to subject
the exceptions in Articles 5.2 (a), (b) and (e) of the InfoSoc Directive
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 principle expressed
in the current section is maintained, by removing the means to perform
these acts, that principle 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. In Ireland's
case, to ensure that users can actually perform the non-infringing acts of
our copyright law, we strongly urge you to leave Section 374 as it was.

We conclude by reiterating our two main points: Firstly, the definition of
"protection defeating device" should be changed to avoid its inappropriate
test of "commerciality". Secondly, the proposed changes to Section 374
should be dropped or altered to support the permitted acts of Chapter 6.

Thank you for your careful consideration,

Malcolm Tyrrell,
on behalf of those named in the accompanying document.

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