Law and Information

Jean-Baptiste Soufron writes:

Read more. (Thanks, Jean-Baptiste!)

An update in English on the current revision of the Swiss Copyright Act is available here. It does not come as a surprise that the anti-circumvention provisions as well as the proposed levy on CD and DVD burners are contested. Note that iTunes – recently launched in Switzerland (see here and here) – is now used to call for thougher legal protection of DRM. I translated the draft anti-circumvention provisions here.

BNA’s Electronic Commerce & Law Report (subscription required) reports that French attorneys have filed a class action against six of France’s leading audio-visual sector firms, claiming that the use of copy control technology on DVDs violates consumers’ right to make private copies for personal use. The complaint is based on a French appellate court’s ruling mentioned here.

I reported here and here that a Paris District Court ruled in UFC v.Films Alain Sadre et al that a copy protection system on a DVD does not conflict with provisions of the French Intellectual Property Code, which limit copyright owners’ rights regarding reproductions made strictly for the copier’s private use. UFC, a consumer rights association, claimed it received complaints from consumers about DVD copy protections that prevent purchasers from making copies for private use. The court confirmed that such technical protection measures comply with the EU-Copyright Directive (EUCD), though the EUCD is not yet transposed into French law.

Some days ago, however, a Paris Appellate Court reversed the ruling. I haven’t had a chance to analyze the decision, but it reportedly requires film producers Alain Sarde and Studio Canal to remove copy controls on their DVDs in order to enable the beneficiaries of the private copying exception as set forth by French law to exercise their rights.

Further, the Court criticized that the DVD producers did not provide sufficient consumer information as far as copy restriction is concerned. The label “CP” for “copy protected” was printed on the jacket, but in small characters and not sufficiently explicit.

See news report in French, and English translation.

It will be interesting to analyze the ruling in detail and to think about its compliance with EU law vis-�-vis Article 6 of the EUCD (see here.)

Update: The decision (in French) is published here.

A French Court of Appeals ruled in favor of a student — sued by the movie industry — who downloaded copyrighted movies from the Internet, burned them onto CD ROMs, and watched them with one or two friends. (The student admitted that one third of the content of his 488 CDs-collection was downloaded from the Internet.)
The Montpellier Court applied a provision of the French Intellectual Property Act, which, in essence, states that authors, once a work has been released, may not prohibit private and non-commercial performances carried out within the family circle, and cannot control the making of copies for strictly private use of the copier and not intended for collective use. [Thanks to C�dric Manara for the pointer and the translation via cyberlaw list.]

As far as I can tell, there was no circumvention of technological protection measures involved. In any event, a case to be included in a potential update of this report.

The German National Library reached an agreement with the German Federation of the Phonographic Industry and the German Booksellers and Publishers Association on the circumvention of technological protection measures (TPM) such as access and copy controls on CDs, CD-ROMs, and e-books. See also here and here.

According to the press release (English version via this site), the German National Library got a “license to copy” techno-protected digital content for “own archiving, for scientific purposes of users, for collections for schools or educational purposes, for instruction and research as well as of works that are out of print.” To avoid misuses, the library “will check user’s interest” for a copy of the technologically protected content. Further, the copies, which are subject to a fee, “will as far as possible be personalized by a digital watermark.” (Press release.)

Let’s recall the legal background of this agreement as recently described in this paper:

Article 6(4) of the EU Copyright Directive (EUCD) addresses the situation where beneficiaries of certain copyright exceptions provided for in article 5 EUCD are hindered from making use of those exceptions due to the technological lock-down of the work. It is under article 6(4) where the balance between the interests of rightholders and holders of related rights using technological protection measures on the one hand and the public on the other can be struck. The exceptions set out in article 6(4) are divided into two categories: the ‘public policy exceptions’ and the ‘private copying exception’. The public policy exceptions listed in article 6(4) – i.e. exceptions in relation to photocopying, copy and archive purposes of educational facilities, broadcaster’s own ephemeral recordings, non-commercial broadcasts, teaching and research, use by disabled individuals, and public safety – are mandatory. However, recital 51 EUCD makes clear that member states should take appropriate measures only in absence of “voluntary measures taken by rightholders, including the conclusion and implementation of agreements between rightholders and other parties”. However, according to article 6(4) subpara. 4, this exception do not apply to “on-demand”-services, i.e. works “made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.”

Against this backdrop, the German Copyright Act, transposing the EUCD into national law, stipulates that the rightholders are obligated to make available the necessary means which enable certain categories of permissible uses. Some of the exceptions and limitations, respectively, also apply to digital media, but others not (click here for an overview.) Furthermore, the Copyright Act does not define how this obligation must be accomplished. However, � 95b(2) provides a remedy against someone who violates the make-available obligation. According to this provision, someone who fails to make available the necessary means can be sued by the beneficiary.

In accordance with the EUCD’s approach, the German legislator hoped that agreements between rightholders and consumers/users associations will be reached. (See here). It seems that the agreement between the German National Library and the above-mentioned associations is an important step forward.

The Berkman Center’s Digital Media Project team has released one new and one updated report on the current state of the digital media ecosystem. One report is an update of the 2003 foundational White Paper by the Berkman Center and GartnerG2 on Copyright Law in a Post-Napster World. The updated edition includes the following:

• Updated business model section that includes new survey data and an overview of “legitimate” P2P stores like Wippit and Weed (Chapter 2)
• Updated and expanded analysis of legal cases and decisions relevant in the digital media space, including a brief discussion of Grokster and RIAA v. Verizon (Chapter 3)
• Revised subsection on international enforcement issues like jurisdictional questions among nations (Chapter 3)
• Updated section on regulatory developments like provisions related to the broadcast flag and digital radio, as well as proposed laws in the U.S. such as the INDUCE Act (Chapter 4)
• Expanded chapter on DRM systems including new standards, challenges, and policy issues related to the use of DRM (Chapter 5)
• Updated outlook for the future (Chapter 6)

In addition, we’ve written an International Supplement to the White Paper, which examines the transition from analog/offline to digital/online media from an international legal perspective. Here’s the abstract/overview of the Supplement:

Comments, as always, are most welcome.

Our colleagues at the Institute for Information Law (IViR) at the University of Amsterdam released, as part of the INDICARE project, an interesting report on Digital Rights Management and Consumer Acceptability. It seeks to provide an overview of the state of the (European) discussion from a multi-disciplinary perspective, and analyzes social, legal, technical, and economic issues.

The report concludes that surprisingly little is know about consumers’ acceptance level of DRM, and what users’ expectations are regarding the use of digital content. The report, inter alia, calls for a better involvement of the consumer side and a joint dialogue between the market players.

The report will be updated. Three pointers to Berkman reports and papers in this context:

* re section 6.5 of the report on alternative business models, see also “Content and Control: Assessing the Impact of Policy Choices on Potential Online Business Modles in the Music and Film Industries.”

* re section 4.2 on the EU-Copyright Directive, see also “Transposing the Copyright Directive: Legal Protection of Technological Measures in EU-Member States,” and the respective Berkman project website.

* re section 4.4 on interoperability, see John Palfrey, Holding Out for an Interoperable DRM Standard, in Christoph Beat Graber, Carlo Govoni, Michael Girsberger, and Mira Nenova (eds.), Digital Rights Management: The End of Collecting Societies? (Forthcoming, April 2005.)

At the Berkman Center, we released today a paper on the current state of implementation of the EU Copyright Directive (EUCD), with emphasis on the transposition of the provisions on the legal protection of technological measures sections (such as encryption, digital watermarking, copy-control technologies, and the like.) In this study, we have taken a closer look at the relevant definitions, exemptions, sanctions and remedies associated with the national anti-circumvention laws. What are the key findings?

First, our analysis reveals that uncertainty over the scope of provisions aimed at protecting technological measures as well as the definition of crucial terms (such as ‘effective measures’) persists – even at a rather basic level. The question, for instance, as to what extent access control mechanisms fall under the definition of technological protection measures and, as a consequence, are protected by the anti-circumvention provisions has been contested.

Second, the study explores different ways in which national implementations have addressed the problem of privately applied technological protection measures vis-�-vis the traditional exceptions to copyright within the framework as laid down in the EUCD. As demonstrated in the paper, incumbent member states have not made broad use of the possibility to take measures ensuring that private copying exceptions will survive technological protection measures, and have gone different paths as far as the implementation of the public policy exception as set forth by the EUCD are concerned.

Third, a brief analysis of some approaches to sanctions and remedies taken by EU member states suggests that member states have interpreted the relevant provisions of the EUCD – calling for “appropriate sanctions and remedies” – in different ways. While all countries impose civil sanctions in the case of a violation of anti-circumvention provisions, differences remain with regard to criminal sanctions. The regimes range from significant criminal sentences for both acts of circumvention and trafficking in circumvention devices and services to copyright laws that stipulate modest fines, but no imprisonment in the case of a violation of the anti-circumvention provisions.

The project website also provides an interactive chart with a resource page containing international and national legislation on technological protection measures with focus on the relevant laws of EU member states for further research. We intend to update the site as soon as new anti-circumvention provisions have been enacted in a EU member state.