[Fsfe-ie] EUCD, status, todo

[Niall Douglas]

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On 26 Nov 2003 at 15:00, Ciaran O'Riordan wrote:

> Right, this directive has already been adopted by the EU, so we can't
> change the directive, but Ireland have not implemented it yet, so we
> can still have a say on how Ireland interprets it.  Directives aren't
> copied into law, they're a list of instructions that say how current
> law has to be changed to conform, so there's quite a bit of room for
> interpretation.

I did a lot of work on the EUCD as the UK was ratifying it, 
unfortunately there weren't the numbers on that one so they ignored 
us.

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. 
Needless to say, so long as you can come up with some half-baked 
reason you can justify exempting yourself to the commission.

> 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.

> The effect is that the public is not allowed to access the work in any
> way other than what the publisher says.  This differs from current law
> in that current law gives the public "fair dealing" rights (called
> "fair use" in the US).  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 
personally feel exceeds the bounds of the directive but well, that's 
just me.

> The public also loses it's "first sale" rights.  After the first sale
> of a work, the purchaser can resell it, lend it to a friend, give it
> to a second hand shop etc.  But if encryption is used to tie a work to
> one individual, it would be illegal to excercise these rights.

I'm not sure about Irish law, but British law never gave you the 
right to copy for backup, sell a book or video or even buy a second 
hand one. The law obviously is widely ignored. The British in 
particular have a long-standing tradition of ignoring laws. 
Nevertheless, the pro-EUCD lobby found it very easy to shoot down our 
arguments by pointing out that none of us had these rights we all 
thought we had to begin with.

> I think that's all of the most useful info I have.

Most of what I've said is about the UK implementation - it's not the 
Irish one. However, I've noticed a disturbing tendency for overworked 
Irish ministers to start with the UK implementation as a template and 
work from there - depending on time/publicity, it can obviously 
change radically. Needless to say, certain special interests can have 
law written totally to their own tune.

Cheers,
Niall





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