Law and Information

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.

I’ve just finished reading four important judgments by the European Court of Justice (ECJ) concerning the EU-Directive on the Legal Protection of Databases (“Database Directive”.) The judgments of the Court in the cases Fixtures Marketing Ltd v. Oy Veikkaus Ab, The British Horseracing Board Ltd and Others v. William Hill Organisation Ltd, Fixtures Marketing Ltd v. Svenska Spel AB, and Fixtures Marketing Ltd v. Organismos prognostikon agonon podosfairou (OPAP) relate to similar factual circumstances (for a summary, click here), i.e., databases of sporting information such as horse racing information in the British Horseracing Board case and football fixtures in the other three cases. Certain pieces of information from these databases were used by third parties for commercial gambling operations. In proceedings before the relevant national courts, the claimants alleged that these uses by the gambling operators were an infringement of the claimants’ sui generis database rights under the Database Directive. In each case, the national courts referred a set of question to the European Court of Justice. The questions raised by the national courts concern, inter alia, the definition of the term “database” in the Directive, the scope of protection (especially the “substantial investment”-requirement), and the infringement of the sui generis right through extraction or re-utilization. In today’s post, I’d like to focus on the definition of the term “database”.

What is a “database”?

In order to determine the scope of protection of databases under the Database Directive, one first has to consider the definition of the term ‘database’ as used in the Directive. According to Article 1(2) of the Database Directive, “‘database’ shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.” In Fixtures Marketing Ltd v. OPAP, the ECJ confirms that the term has a wide scope, “unencumbered by considerations of formal, technical or material nature.” (para. 20) In this context, the Court points out that electronic and non-electronic databases are protected under the Directive. Moreover, the ECJ confirms that the definition does not include quantitative requirements, i.e., that the definition does not depend on the question as to whether a significant number of data or materials is involved or not. (para. 24) Consequently, the definition as set forth by the Database Directive is broader than the one suggested in Section 2(5)(A) of the U.S. Database and Collections of Information Misappropriation Bill, where the term ‘database’ is defined as “a collection of a large number of discrete items of information produced for the purpose of bringing such discrete items of information together in one place or through one source so that persons may access them.” (Emphasis added.)

The ECJ further clarifies that it is not required that a database is its maker’s own intellectual creation to be classified as such. However, the criterion “originality” plays an important role in the assessment whether a database enjoys copyright protection under Article 3 of the Database Directive. (para. 26) In this regard, the standard laid down by the Database Directive is similar to Feist.

In sum, the classification of a database depends on three (analytically distinct, although related) elements:

(1) Collection of ‘independent materials.’ Article 1(2) requires, inter alia, that the database consists of a collection of independent works, data or other materials. This criterion, according to the ECJ, requires that the materials are separable from one another “without their informative, literary, artistic, musical or other value being affected.” (para. 29; emphasis added.) It is an open question whether or not this interpretation is more restrictive than the one suggested by the Advocate-General, according to which the criterion should be understood “as meaning that the data or materials must not be linked or must at least be capable of being separated without loosing their informative content.” (para. 39 of the Opinion, emphasis added.) The “independence”-requirement is particularly relevant in the context of musical recordings and with regard to movies. While it seems clear that the sound of a musical recording as such or the pictures of a movie do not fall within the scope of the definition (see also recital 17 of the Database Directive) because they are note separable without affecting the artistic value of the work, it remains unclear whether the compilation of musical recordings on a CD or the compilation of video clips on a DVD, for instance, is a database or not. The Advocate-General seems to suggest that a compilation of musical recordings does not qualify as a database; para. 29 of the Opinion.) I would argue, by contrast, that different musical recordings on a CD (think about a “Best Of” album as the prime example), by and large, are independent, systematically or methodologically arranged, and individually accessible works. Arguably, exception to the rule might exist, for instance in cases of interrelated “variations” on a theme, where the separately stored and individually accessible musical works cannot be separated without affecting the musical value of the works. In any event, the qualification of a compilation as a database is only a necessary, but not sufficient requirement for sui generis protection. In fact, the Database Directive seems to suggest that compilations of different musical works are databases, but are not protected due to lack of substantial investment as required by Article 7 (see recital 19).

(2) Systematic or methodical arrangement. The independent materials must be systematically or methodically arranged. Recital 21 of the Database Directive states that it is not necessary “for those materials to have been physically stored in an organized manner.” In essence, this criterion makes sure that randomly accumulated information does not fall within the scope of the definition. The ECJ clarifies that this second condition “implies that the collection should be contained in a fixed base, of some sort, and include technical means such as electronic, electromagnetic or electro-optical processes … , or other means such as an index, a table of contents, or a particular plan or method of classification, to allow the retrieval of any independent material contained within it.” (para. 30) According to the Advocate-General, it is sufficient “if a structure is established for the data and they are organised only following application of the appropriate search programme, and thus essentially through sorting and, possibly, indexation.” (para. 40 of the Opinion.) As a result, the threshold established by the “arrangement”-criterion is rather low. This conclusion is confirmed by previous case law in EU member states (for an overview, see the Database Right File by Bernt Hugenholtz.) In C-Villas, for instance, the Austrian Supreme Court held that a homepage with information on eight holiday houses located on the Caribbean island had been systematically arranged, since the websites were individually accessible and the villas described per Island, village, and based on the housing equipment. In the German case Babynet, a District Court held that a website with 251 alphabetically (sic!) arranged links is a systematically arranged collection of independent (and individually accessible) materials.

(3) Individually accessible. The third element of the definition set forth in Article 1(2) of the Database Directive requires that the independent materials making up the collection are individually accessible by electronic or other means. Against this backdrop, the Advocate-General argued that the mere storage of data is not covered by the term database. (para. 41 of the Opinion.) However, scholars have argued that it is unlikely that independent works, data and materials can be stored systematically or methodologically without being individually accessible. In the context of the present cases, the ECJ did not have reason to further explore this question. Instead, the ECJ discussed the second and third requirement in one paragraph and concluded that, together, they make it possible “to distinguish a database within the meaning of the directive, characterised by a means of retrieving each of its constituent materials, from a collection of materials providing information without means of processing the individual materials which make it up.” (para. 31)

In sum, the ECJ confirms the broad meaning of the term ‘database’ in Article 1(2) of the Database Directive. Thus, it is not surprising that football fixture lists have been considered to be a database within the meaning of the Directive. However, it is important to note that this is a necessary, but not a sufficient condition for the grant of the sui generis right set forth by Article 7 of the Database Directive.

In next posts, I will take a closer look at the sui generis protection in general and the “substantial investment”-requirement in particular, and discuss the infringement of the sui generis right through extraction or re-utilization.

Comments, as always, most welcome and much appreciated.

We are pleased to announce the next installment of the 2004/05 edition of the Harvard-Yale Cyberscholar Workshop Series. We invite you to our second session to be held on Thursday, November 11 from 6:00-8:00pm in room 111 at Yale Law School. We are delighted to host a session with two distinguished speakers:

Caio Pereira, JSD candidate, Yale Law School, Information Society Project Fellow, on “Universal Access Policies in Developing Countries“, and

Ivan Reidel, SJD candidate, Harvard Law School, Berkman Center’s Digital Media Team, on “Competition and Deregulation in the Music Industry“.

RSVP required.

Over the past few months, I’ve been working on a couple of Berkman papers on developments in international and national copyright laws as far as digital media is concerned. I’ve been looking at U.S. law, at the legislative and regulatory developments in Europe (both EU legislation and national implementations of EU law), and at selected jurisdictions in the Asia-Pacific region such as Australia, Singapore, Malaysia, China, Japan, and South Korea. The papers provide a rough overview of the copyright laws and regulations in these countries, and analyze the different paths and stages of evolution of the international copyright ecosystem. The reports also describe the current state of digital media law in action.

Currently, I’m working on one of the reports’ conclusion section. As always, it’s quite a challenge to come up with “crispy” takeaway points. Well, here’s the way I intend to frame it; any feedback is very much appreciated.

It seems to me that one might roughly distinguish between three stages of development of copyright protection across the world:

1) Copyright laws at a very nascent stage. Copyright laws of countries in this category do either not exist at all, or have not incorporated the relevant protection levels set forth by the Berne Convention or TRIPS.

2) Copyright (IP) laws that are TRIPS compliant.

3) Copyright laws that have incorporated the WIPO treaties or are otherwise in compliance with WCT/WPPT.

These categories, in turn, say something important about the driving forces of copyright legislation across the globe. By and large, TRIPS has become the major force aimed at creating a level playing field of IP protection in many parts of the world. It strikes me that TRIPS, today, is particularly important in the transition from “nascent” to “well-developed” copyright regimes. The implementation of the WIPO treaties, in contrast, can be understood as the “fine-tuning” of copyright legislation – from “well-developed” to “advanced”, so to speak. One other important driving force hasn’t been mentioned here, but is discussed in the papers: bilateral free trade agreements (such as the AUSFTA and the USSFTA.)

The second question is: What are the effects of the international treaties and bilateral trade agreements on copyright legislation? Well, it’s quite obvious: The international treaty system works as a leveler and harmonizes the fundamental issues and corner stones of a copyright system. However, the Berkman papers will also demonstrate that significant differences among national laws remain. Even if we look at countries that are in compliance with the WIPO treaties, we find different approaches, especially with regard to definitions (e.g. of technological protection measures), exceptions (e.g. private copying), and sanctions/remedies against infringements. Another addendum is necessary: The digital media landscape across the globe – even the most “advanced” – also varies significantly when it comes to the “law in action.” The reasons are manifold and include huge differences in civil and criminal procedure laws as well as, of course, economic, cultural, historical… differences in law enforcement practices. However, the papers will also illustrate that law enforcement – as far as online piracy is concerned – is increasingly an internationally orchestrated multi-actor (rightholders, rights organizations, governmental task-forces, etc.) effort.

The third question I’d like to touch upon is: what are the effects of international copyright frameworks and corresponding national legislation on any given information environment? Here, one might want to distinguish between four stakeholders: Users/consumers, rightholders, businesses, and policy-makers. Unfortunately, I do not have much empirical data to support potential claims about the effects of legislative developments on each category. However, anecdotal evidence suggests certain trends. In essence, one might argue that the “most advanced” copyright systems have a bias towards protection of rightholders and businesses at the cost of users. Especially the review of current case law in European jurisdictions suggests that this trend is not only a U.S. phenomenon, but structural in nature. (To be sure: the interactions among contract and copyright law, technology, and business models are rather complicated. You’ll find an analysis of the interplay between these elements in our iTunes case study.) One final point with regard to policy-makers: The papers will demonstrate that policy-makers – at the national level – still have some leeway in the way they design their copyright ecosystem, despite international harmonization.

Against this backdrop, my research interest moves towards “best practice models” in the digital age. Stay tuned. (BTW, I’ll link to the above mentioned papers as soon as they become available.)

Recently, Markus Kummer, head of the Working Group on Internet Governance (WGIG) for the World Summit on the Information Society, visted the Berkman Center. I was asked and had the pleasure to speak for three minutes about Internet regulation by law (vs. technology, markets, or social norms.) Here is my three-minutes take on it:

In the past 12 years, much of what we call today the Internet Governance debate has been about the question whether governments and national legislators shall step in to regulate human behavior on the Internet. Ideal-typically, one might distinguish between two positions at the ends of a spectrum of opinions about Internet regulation by law:

On the one end, we have John Perry Barlow and friends, arguing that cyberspace does not lie within the borders of governments. The representatives on this end of the spectrum – the cyber-exceptionalists – argue in favor of a laissez-faire approach.

The representatives of a legalistic approach to Internet regulation, by contrast, perceive the Internet as a subject of regulation that is not different from any other technological phenomena. Under this approach, governments and parliaments are obliged to address Internet governance issues and regulate cyberspace by East coast code.

A fair amount of literature and many conferences, workshops, panels, etc. have played out these and other approaches and have explored alternative modes of regulation beyond law. And, of course, regulatory history provides evidence that there is middle-ground, too.

However, only occasionally we have read comprehensive theoretical analyses about “law” in cyberspace as such. In other words: Much less attention – especially in the United States, but also abroad – has been paid to the fact that law itself is a multi-dimensional mode of regulation. Why multi-dimensional? Because both at the national and international level law provides an entire set of regulatory strategies, ranging from mandatory regimes to approaches aimed at cooperation (soft law), ex post (therapeutic) versus ex ante (preventive) legislation, instrumental versus symbolic legislation, etc. Moreover, law provides a variety of regulatory instruments such as substantive requirements, prozeduralization of law, provisions working with financial incentives, aimed at education or information, and so forth. Law is also multi-dimension with regard to the forms of regulation, the density and intensity of regulation, etc.

Further, it strikes me that we have not discussed thoroughly enough what the different functionalities of law are – even in the realm of “free cyberspace.” In my perception, cyberlawyers have a long-standing tradition to understand law as a constraint on human behavior. But law can be more than a mere constraint. In fact, law does often have an “enabling function” and a “leveling function,” too. Moreover – and these characteristic are particularly important in the context of global governance vis-�-vis the global reach of the Internet – law-making (including soft-law-making) provides opportunities for participation and representation, provides structured fora and discursive processes to articulate and address regulatory issues und legitimate concerns.

In short, we should make very clear that (cyber-)law is not – or at least not necessarily – a simplistic intervention mechanism aimed at constraining human behavior and limiting freedom, but has much more to offer, both at the national and international level. In any event, to get the balance right, to apply the legal toolset with good judgment, and to avoid regulatory pitfalls remain the big challenges for all of us.

As promised, here’s another translation/summary of Jean Nicolas Druey’s work on the “information overload” (published as: “Daten-Schmutz” – Rechtliche Ansatzpunkte zum Problem der �ber-Information, in: Festschrift zum 65. Geburtstag von Mario M. Pedrazzini. – Bern, 1990. pp. 379-396.)

Druey introduces the article on pp. 379-380 with some general thoughts about the emergence of the information society and the increasing awareness of information as a building block of our society, our lives, etc. He argues that the “information age” must also have an impact on the legal system, not only because we face the emergence of new problems, but — more fundamentally — because law is itself information. However, Druey claims that legal scholars haven’t thoroughly reflected the legal ramifications of the information phenomenon. One exception, according to Druey, is data protection law (in German: Datenschutz. Please note that the title of the article: “Daten-Schmutz,” plays with words. In German, “Daten-Schmutz” sounds almost like “Datenschutz,” but it means something entirely different: Schmutz is smut, i.e. data-smut.)

On p. 380, Druey outlines the fundamental legal problems related to information. He starts with the notion that law is aimed at conciliating opposing interests. Traditionally, opposing interests in information were related to situations where one party was eager to get information about something, but the other party had an interest to keep this information (knowledge) confidential — or at least not to communicate it. The focus of attention in the past, according to Druey, was thus on confidentiality, secrets, and the like. In more recent times, however, the emphasis has shifted: The emergence of the information society is accompanied by the creation of a great number of “information rights”, i.e. rights to get information from other individuals, but also from governments (UG: one might think about the freedom of information act).

Less much attention, however, has been paid to the fact that the structure of interests might be reversed: Consider a person who has information and wants to be heard. Is there a right to be heard? On the other side of the same coin: A person who is *not* informed might have an interest that the information channel remains closed, i.e. that he does not have to receive information.

Thus, the basic conflicts in information law might be mapped as follows (matrix), p. 381:

I. Interested Party

a) Informed Party | b) Non-informed Party
|
c) in information = access rights | = Right to information (disclosure rules)
|
II. Interest —————————————————————————————–
|
d) in non-
information = Confidentiality laws | = Protection against info.
|

This graph suggests an ambiguous nature of information. We are used to think about information as a positive value, and, in fact, the traditional conflicts — i.e. confidentiality and right to information — are based on this assumption. But the viewpoint that someone might have an interest in being protected against information makes it clear that information might also have a negative value. Druey acknowledges that this notion of “negative value of information” is counterintuitive and against our common sense understanding. He argues that the positive notion of information we generally apply describes an ideal world, because we generally neglect that information must be processed at some costs. Druey argues that this ideal situation is not an accurate description of reality, since information needs always to be processed and because information might even be counterproductive due to the possibility that a given receiver draws wrong conclusions based on it (p. 381).

On p. 382, Druey turns to the problem of information overflow. The situation of opposing information interest under this scenario is obviously connected to the forth quadrant ( “protection against information”) of the above matrix. On p. 382/83, Druey outlines a “Postulate of Information Ecology”. He starts with a brief description of the problem of information overload from a rather subjective perspective and some narratives. Then, he turns to the question how the problem of information overload can be addressed. On p. 382, he distinguishes between three approaches: First, the receiver has to learn to live with information overload, has to improve her information selection and processing capabilities, competences, etc. Second, it is crucial that intermediaries (media, but also teachers, consultants, etc.) step in and pre-select, pre-process, translate, customize, … information. However, in many situations the only solution might be to reduce the activity level of the sender (source). The third aspect is the one Druey will be focusing on for the remaining part of the article.

Druey argues that the necessity to develop strategies against information overload that apply to the sender/source derives from the distinct nature of information if compared to goods. If too much goods are distributed, the resulting problem is one of “wasting resources” and “waste disposal”. Information, in contrast, that is redundant limits the attentiveness of the receiver at the costs of information that has probably a higher relevance. This goes back to the characteristic of information that its relevance can only be assessed once it has been consumed. Druey concludes (p. 383): The greater the information supply, the greater the risk to choose irrelevant information and ignore the relevant. In sum, Druey argues that too much information is not only a waste of resources, but does harm, and that the selection cannot be delegated to a market, but creates a responsibility of the sender. (Later, he gets back to the notion that market cannot solve the selection problem.) Druey acknowledges that the idea of a sender responsibility with regard to “too much information” has not been an issue in law. However, he argues that there are at least some examples or precursors where law aims to limit the dissemination of information to serve different (!) interests than the classic secrecy/confidentiality interests. The first example (p. 384-87) concerns the therapeutic privilege, i.e. a situation, “in which the physician may be excused from disclosing information to a patient when there is sufficient evidence that the patient is not psychiatrically or emotionally stable to handle the information, that the disclosure of information itself would pose serious and immediate harm to the patient, such as inducing some physiologic response such as a heart attack or prompting suicidal behavior.” (Source:  http://sprojects.mmi.mcgill.ca/ethics/de….) Druey takes from this example that duties to inform are not always qualified to bridge lack of trust. Rather, these duties — and the exercise of them — are themselves part of the trust relation.

Second, Druey looks at information bans in antitrust law (pp. 387-390). Here, it might be enough to say that Druey uses a U.S. antitrust case to develop the argument: United States v. Container Corp. of America, 393 US 333 (1969). In essence, Druey argues that markets need information. Thus, market transparency is a prerequisite for the competitive markets and their regulatory effects. However, there are circumstances in which competition is inhibited where information is disclosed, because market participants are adjusting to the behavior of others that has become public. Here, Druey uses Container Corp. to make the point. Druey argues that the ambiguous nature of information (“it is good, but not always”) makes it difficult to make choices, because the question whether information is good or bad heavily depends on factors such as the structure of the market (Druey refers to Justice Douglas’ opinion in Container Corp.). The problem that too much information may create the problem of hugely coordinated behavior is also evident in cases where reactions to rather limited stock exchange crashes lead to fatal chain-reactions and global crisis. As a consequence, Druey suggests that information limitations and delays in information processes might be instruments to stabilize order.

Third, Druey explores consumer protection laws which often stipulate disclosure rules (pp. 390-392). Druey argues that the enormous amount of information available to consumers might result in an overload with the unintended consequence that consumers turn back to “simple” messages, e.g. presented in TV spots, etc. However, he thinks that intermediaries might help, e.g. organizations testing products and publishing rankings of certain categories of products, etc. In any event, Druey argues (p. 392) that it does not solve all the problems just to put intermediaries in place. Rather, the selection problem is simply delegated from the receiver to the intermediary. Thus, the receiver loses autonomy. Moreover, if the decision about information shifts at a large scale from individuals to intermediaries — often market players –, it might affect the market itself.

Fourth (pp. 392-395), Druey looks at limitations of information in the interest of culture and education. In this section, he argues that the concept “free flow of information” as a policy principle does not work, because the capacities to absorb and process information are limited, and because the selection of the best information cannot simply be delegated to the market mechanism. Thus, it is not appropriate to implement “free flow of information” as a policy principle and to let the individual alone with the overwhelming amount of information. Rather, the state has some responsibility to put mechanisms in place to address the problem of over-information of its citizens. Druey makes clear that these arguments are not advocating censorship or the like. He simply argues that the principle “let information flow” is not the solution to a complex problem. One of the most important sentences, in my opinion, is written on p. 394. Druey concludes: “It is one of the tasks of the law to design a system of intermediaries, which guarantees a *relative* maximum of freedom to send, but also receive information.”

In his conclusion (p. 395/6), Druey argues that it is crucial to understand – also from a legal perspective – that we must care about an optimum, not a maximum level of information. Moreover, he summarizes the problem of information overflow as follows: The problem, generally speaking, goes back to the phenomenon that a given receiver over-estimates the importance of a single piece in relation to another piece of information. This phenomenon results from the fact that the receiver is swamped with the selection of information. As a consequence, certain limitations of information flows by law are not against freedom of information/free speech (to be understood as the supply of information to satisfy the information needs of individuals as-best-as-possible). Rather, such limitations might even be required to achieve this freedom (p. 396). Finally, Druey emphasizes that — in the best case — we’re in the process of identifying the problem of information overload, but that we are far away from having any adequate solutions to it. Certainly, however, we reach the limits of what law can and shall do.

The Swiss Federal Government has been working for more than four years on a partial revision of the Swiss Copyright Act to bring it in compliance with the WIPO Copyright Treaties. Recently, the Federal Council requested the Federal Department of Justice and Police to carry out a consultation regarding the draft of the copyright law revision. The pre-draft of the amendments has been published in German, French and Italian, but – unfortunately – not in English. The draft, among other issues, suggests controversial provisions on the protection of technological measures such as copy and access control technologies, aimed at implementing Art. 11 WCT and Art. 18 WPPT.

In the context of an ongoing research project at the Berkman Center for Internet & Society at Harvard Law School and the Research Center for Information Law at the University of St. Gallen, I translated the relevant parts of the pre-draft on technological protection measures:

“Title 3a: Protection of technological measures and of rights-management information

Art. 39a (new) Protection of technological measures

1 Technological measures for the protection of works of literature and art in terms of Article 2 as well as the protection of subject-matter according to the Third Title may not be circumvented until the expiration of their respective copyright terms.

2 Protected against circumvention are technologies and devices such as access and copy controls, encryption, scrambling or other transformational mechanisms applied by the rightholder or the exclusive licensee, respectively, in order to prevent or restrict unauthorized acts in respect of works and other subject-matter.

3 Prohibited are the manufacture, import, offer, sale or other distribution, rental, extension of use to others, the advertisement for sale and the possession for commercial purposes of devices, products or components as well as the provision of services, which:

a. are the subject of sales promotion, advertisement or marketing for the purpose of circumvention of technological measures;

b. have only a limited commercial purpose or use other than the circumvention of technological measures; or

c. are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of technological measures.

4 The prohibition of circumvention cannot be enforced against persons who undertake the circumvention for the sole purpose of a statutorily permitted use.

Art. 39b (new) Obligations of Users of technological measures
1 Any person who protects works or other subject-matter by technological measures shall:

a. declare in a clearly visible manner the properties of the measure and the identity of his person;

b. make arrangements, upon the request of a person who has lawful access to the protected subject-matter, in order to enable that person to make use of the subject-matter as permitted by law.

2 Paragraph 1(b) does not apply to full or extensive copies of works available on the market.

3 Any person who breaches the obligations imposed by Article 1 has no entitlement to the protection afforded under Article 39a.

4 The Federal Council can enact further rules regarding the application of technological measures in the field of copyright protection if it is required by the public interest.

Art. 62 para. 1 introduction and 3 (new)
1 Any person whose copyright or related rights are infringed or jeopardized or whose rights in regard to the protection of his technological measures or rights-information management are violated or jeopardized, can demand from the court :
…

3 Any person who is not successful with a request according to Article 39b paragraph 1(b) can petition a court to oblige the user of technological measures to accede to the claim.

Art. 69a (new) Infringement of the protection of technological measures and rights-management information

1 Upon the request of the person harmed with respect to the protection of technological measures or rights-management information, any person shall be subject to imprisonment for up to one year or a fine who intentionally and unlawfully:

a. circumvents technological measures according to Article 39a paragraph 2 with the intention of making unauthorized use of the work or other subject-matter, or to enable its use by someone else;

b. manufactures, imports, offers, sells or otherwise distributes, rents, makes available for use or possesses for commercial purposes devices or products that primarily serve for the circumvention of technological measures according to Article 39a paragraph 2;

c. offers or provides services to circumvent technological measures according to Article 39a paragraph 2;

d. promotes means or services for the circumvention of technological measures according to Article 39a paragraph 2;
…

2 If the offender acts in a professional capacity, then he or she will be prosecuted ex offcio. The punishment shall be imprisonment of up to three years or a fine.
…”

Once more, I owe thanks to my colleague and friend James Thurman for editorial advice.

MSNBC and others report that the music and movie industry are appealing to the U.S. Supreme Court to overturn the 9th U.S. Circuit Court’s Grokster ruling. Here we go again: Cert.?

According to Lyman and Varian’s How much Information 2003? study, print, film, magnetic and optical storage media produced roughly 5 exabytes of new information in 2002 (five exabytes of information is equivalent to the information contained in 37,000 new libraries the size of the Library of Congress book collections.) According to the study, almost 800 MB of recorded information is produced per person each year, equivalent to 30 feet of books if this information was stored on paper.

Moreover, the information society is developing rapidly. Rapid change, in turn, is accompanied by an increase in the information needed to keep up with those developments. Against this backdrop, it comes not as a surprise that “information overload” has been identified as one of the problems of our society. Psychologist use terms such as “information fatigue syndrome” to describe the symptoms resulting from information overload, while representatives of other disciplines focus on ways how to deal with it.

Information overload has been subject to various studies and research programs. Interestingly, however, legal scholarship – itself exposed to the information problem – has not been engaged in this debate. A prominent exception is Jean Nicolas Druey, Professor em. at the University of St. Gallen, Switzland. In a seminal book on “Information as a Subject of Law” (in German, “Information als Gegenstand des Rechts,” Schulthess: Zurich & Nomos: Baden-Baden, 1995) and in an article, he has addressed the phenomenon of information overload from a legal perspective.

Since it’s one of the purposes of this weblog to build a bridge between U.S. and European scholarship in information law, I decided to translate and summarize Druey’s study on information overload. The idea goes back to my colleague Derek Bambauer’s interest in Druey’s approach. Derek is working on a paper on Spam, where he applies an information-policy approach. I’d like to thank him for the ongoing discussion of this and other issues. In this post, I translate and summarize the discussion as presented in Druey’s book. In a next post, I will talk about the article, in which Druey explores the issue in depth.

Druey addresses the phenomenon of “information overload” (in German: “Ueberinformation”) in the context of a broader discussion aimed at demonstrating that information as such – contrary to the mainstream opinion that “more information is better” – does not have an intrinsically positive value. Rather, information is neutral in nature, since it can not only have a positive, but also a negative value, e.g. in case where information lacks quality, has an immoral purpose, or is redundant.

With regard to the third aspect, i.e. information overload (“Ueberinformation”), Druey claims that the problem “information overload” has not sufficiently been analyzed in the different areas of research. He argues that this lack of analysis goes back to the common information theory (Shannon, Weaver) approach to information, which conceptualizes “information overload” as a problem related to the “channel” rather than human beings.

Why is too much information a bad thing? In essence, Druey argues that “overproduction” and “oversupply” of information is a waste of resources. First, in the case of a priest who’s preaching in church without audience, for instance, we have the problem that information is presented at some costs without reaching receivers. Second, too much information is clogging our capacity to receive and process information. In both cases, the problem boils down to a suboptimal usage of potentially useful information on the one hand and unnecessary costs/expenses on the other hand. Third, and even more importantly, the increasing amount of information and data leads to an increasing risk that the wrong information is selected (“wrong selection of information”, p. 69). Druey argues that, consequently, the competition over the scarce resource “attention” (or better “attentiveness”) has a negative feedback-effect on the quality level of information itself (Druey uses the example that an overview of the literature in a particular field aimed to address the problem of “too much information – lost overview” itself contributes to the problem it seeks to solve by adding another piece of information.).

This problem of “wrong selection of information” has first and foremost a negative impact on decision making processes. A citizen, who has his head full of sport news and results, is not necessarily in a good shape to make political decisions (to vote, for instance.) This example, according to Druey, illustrates that the phenomenon “information overload” may not only affect the receiver in a negative manner, but may also have negative effects on other interests and stakeholders. In fact, “information overload” may also infringe the interests of senders in cases where an important/relevant information gets stuck in the blockage. Moreover, information overload may also affect “institutions” which heavily depend on the flow of relevant information (“the major communication problem is information overload”, quotes Druey a scholar in the field of organization theory [Everett M. Rogers/Rekha Agarwala, Communications in Organizations, New York 1976, p. 90]).

But too much information does not only harm information processes. In cases where information is used in order to “regulate” (in a broad sense of the term) certain social mechanisms and processes, “too much” might do harm. Druey refers to the “market” as an example. Total information would kill market dynamics. It’s about an optimum of information, not total information or complete transparency. At the same time, “non-information” may have a limited effect on the general activity level, which, in turn, might be the source of order. This thought is connected to the concept of equality. Equality has something to do with making issues more abstract, to abstract from detailed information (e.g. not to consider information about race, gender, …). The willingness to be governed under a particular regime heavily depends on “not-to-know” (Druey refers to Rawls’ “veils of ignorance”.)

Druey concludes (p. 70) that these examples and arguments suggest that information as such – regardless of the quality of a given piece of information – might be contra-productive from the viewpoint of a receiver. Further, Druey concludes that the discussion has demonstrated that the buzzword “information overload” has two aspects: a quantitative (“too much”), but also a qualitative aspect. The qualitative aspect becomes visible in the context of the above mentioned processes/procedures, which may require the retention of certain information. Druey argues in another chapter of a book that this need for “dosing information” in order to ensure certain processes/procedures is the reference point for certain forms of legal secrets (e.g. protection of trade secrets.)

On p. 135, Druey comes back to the issue of information overload when he discusses a “right against information” (in the sense of a “right not to receive information” as an aspect of informational freedom emerging.) He argues again that the harm of “too much information” is to be seen as the costs associated with the fact that a receiver cannot receive potentially relevant information because he is cognitively “clogged” with information that might not be at the core of his informational interests. Addressing the question of responsibility in the legal sense, Druey argues that the law has not yet been responsive. The threshold that triggers liability is extremely high in the case of information overload compared, for instance, to other cases of negative information (e.g. in the case of misadvise.) A basis for a claim might be seen in contractual obligations, but beyond that, law has not developed remedies to address the problem “information overload”. Thus, and that’s Druey’s conclusion, law has to refer to other solutions (regulatory modes) to regulate the problem. Since there might only exceptionally be an “individual right against information”, law must trust in the regulatory power of filters. Filtering functions are conducted by media, teachers, as well as interest groups, and the like. Druey emphasizes in footnote 16 on p. 137 that media –in the broad sense of the term, i.e. as “informational transformers” – are key to address the issue at stake. Media’s function, according to Druey, is to mix “fire” with “water”, i.e. to harmonize a subjective with an objective approach to (active and passive) information needs.

To be continued.

IFPI announced today that it has launched a new series of legal actions against allegedly illegal file-sharers in Europe. According to IFPI’s press release, the music industry – roughly seven months after the first big wave – takes for the first time actions against uploaders in Europe’s two largest music markets, the UK and France. Similar legal actions are being brought in Italy, Denmark, Germany, and – another premier – in Austria. Today’s second wave brings the total number of cases – both criminal and civil suits – in Europe to more than 650.
Some of the details are interesting: While the Italian Parliament recently enacted what has been considered to be the toughest law against file-sharers worldwide, the industry today brought cases against 7 (seven) Italian uploaders – compared to 100 in Germany or 174 in Denmark. Check also the IFPI’s Fact Sheets on online piracy in several European countries.