Law and Information

Earlier this week, I had the opportunity to provide expert testimony before the Legal Affairs Committee of the Swiss Council of States (roughly equivalent to the U.S. Senate) regarding Switzerland’s implementation of the WIPO Internet Treaties and revision of the copyright act, respectively. It doesn’t come as a surprise that the bill is hotly debated among different stakeholders, and the committee members confirmed that they have received many letters and e-mails in the run-up to the hearing.Right after a presentation by Apple’s iTMS Switzerland Managing Director, I testified about alternative business models for the distribution of digital content that don’t (primarily) rely on DRM protection. Of course, I was also talking about the Berkman Center’s Digital Media Exchange Project. After the presentations, the committee members asked a series of excellent questions about technological, economic, and legal aspects of DRM. Since the debates are traditionally confidential, I can’t go into details here. Instead, I would like to point to some of the characteristics of the bill that I find particularly commendable:

• The bill only prohibits the circumvention of effective technological protection measures aimed at protecting copyrighted materials.
• The bill includes a definition of the effectiveness criterion.
• The ban cannot be enforced against individuals who circumvent TPMs in order to make use of the work in a way that is traditionally permitted by the copyright act (e.g. making a private copy).
• In contrast to the EUCD, all the exceptions and limitations also apply to on-demand services.
• Although the bill creates civil and criminal liability, it adheres to the principle of proportionality with regard to sanctions and penalties. In the context of criminal sanctions in the case of circumvention of TPMs, intent (”Absicht”) is required.

On the other hand, several areas of concern remain (see here and here for background information):

• It’s unclear as to what extent the beneficiaries of a copyright exception can make use of it vis-a-vis TPM. An earlier draft created an innovative and powerful enforcement mechanism (see former draft art. 39b and art. 62, translated here), but the revised draft before the parliament now proposes the establishment of an oversight body (”Beobachtungsstelle”) that facilitates discussion between the stakeholders and might have the power, upon authorization by the Swiss Federal Council, to intervene (e.g. by way of recommendations) in the case of DRM misuse if the “public interest” would require it.
• The encryption exception has been mentioned in materials, but not in the bill itself.
• The ban of trafficking in circumvention devices is absolute.
• The bill doesn’t address transparency and interoperability issues - although I agree that the copyright act is not the best place to deal with these issues.

Besides these TPM-related issues, it is noteworthy that downloading files from P2P services remains legal (private copying exception) under the current version of the bill. In this context, one might also want to mention that the bill doesn’t seem to build on the (contested) assumption that DRM and anti-circumvention laws will reduce piracy. Here as in all other areas, it will be interesting to observe - given the lobbying efforts by the copyright industry - how the draft legislation further evolves once it is debated in public by our national law-makers.

A team of experts is currently working on a resource site and best practice report on the implementation of the EU Copyright Directive (EUCD). A draft version of the best practice guide will be presented and discussed at the Wizards of OS conference in Berlin (with wonderful speakers, BTW, including Hal Varian, Claudio Prado, Larry Lessig and Yochai Benkler) and further explored at the WOS4 EUCD workshop on September 17th. A final report - based on the Berlin feedback - will be released in November.The guide is based on a peer-produced collection of particularly good (or bad!) examples of EUCD implementations in various
EU member states (and beyond). It takes a closer look at four important clusters of legal issues typically associated with EUCD-implementation. First, in a cross-sectional manner, it provides recommendations regarding the implementation of the EUCD’s anti-circumvention provisions (i.e., legal protection of technological protection measures). Second, it suggests a series of principles in areas of copyright law that shape the ways in which we – as peers – can produce and distribute information. The third section deals with universal access issues, including teaching and research exceptions, exceptions for libraries, archives, and the like, and copyright exceptions for disabled people. Third, the document provides recommendations with regard to selected copyright provisions that have an impact on political and cultural participation.
Together with the St. Gallen team, Ian Brown, Volker Grassmuck, and other colleagues, I have started working on the best practice guide, taking a first cut at TPM on the one hand and teaching exceptions on the other. Much more needs to be done, though, so please contact Ian Brown (I.Brown [at] cs.ucl.ac.uk) or me (ugasser [at] cyber.law.harvard.edu) if you would like to contribute to the country reports and/or the best practice guide.

Techcrunch’s Michael Arrington recently interviewed CEOs and executives of start ups about Web 2.0. Participating in the discussion were Aaron Cohen (Bolt), Scott Milener and Steven Lurie (Browster), Keith Teare (edgeio), Steven Marder (Eurekster), Joe Kraus (JotSpot), Jeremy Verba (Piczo), Auren Hoffman (Rapleaf), Chris Alden (Rojo), Gautam Godhwani (Simply Hired), Jonathan Abrams (Socializr), David Sifry (Technorati), Matt Sanchez (Video Egg) and Michael Tanne (Wink). They explored quesions such as what is Web 2.0? Are we in a bubble? What are the business models that will work on the web today? What is the role of publishers in a user generated world? How important and how big is the early adopter crowd?

The video is here.

As part of the Digital Media Project, Berkman Faculty Director Terry Fisher and Berkman Fellow Bill McGeveran just released a terrific study entitled “The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age”, exploring whether innovative educational uses of digital technology – ranging from DVDs in the classroom to online resources such as Wikipedia - are hampered by copyright restrictions. Here’s the abstract:

This foundational white paper reports on a year-long study by the Berkman Center for Internet and Society, funded by a grant from the Andrew W. Mellon Foundation, examining the relationship between copyright law and education. In particular, we wanted to explore whether innovative educational uses of digital technology were hampered by the restrictions of copyright. We found that provisions of copyright law concerning the educational use of copyrighted material, as well as the business and institutional structures shaped by that law, are among the most important obstacles to realizing the potential of digital technology in education.

The paper builds on four detailed case studies of initiatives that have encountered such obstacles. Each of these initiatives is moving forward, but only by fighting against a copyright-related system that instead should be helping educators accomplish their goals. The four case studies are:

• A plan to use social networking software to help new social studies teachers interact and share classroom resources, which confronts copyright problems when teachers incorporate third-party content into their materials;
• The need of film studies professors to bypass encryption on DVDs – likely in violation of federal law – in order to show selected film clips to their students;
• An effort to make a digital database of hard-to-find but important American music available on college campuses, which encountered massive obstacles in the rights clearance process;
• The shortcomings of special statutory provisions intended to benefit public broadcasters, but limited to over-the-air broadcast so that they have become nearly irrelevant as the need to distribute content on multiple digital platforms increases.

Drawing on these case studies, other research, and comments made by a cross-section of scholars, lawyers, librarians, and educators who participated in two day-long workshops organized as part of the project, the following emerged as the most significant copyright-related obstacles to educational uses of content:

• Unclear or inadequate copyright law relating to crucial provisions such as fair use and educational use;
• Extensive adoption of “digital rights management” technology to lock up content;
• Practical difficulties obtaining rights to use content when licenses are necessary;
• Undue caution by gatekeepers such as publishers or educational administrators.

While the primary task of the foundational white paper was to identify these obstacles, the paper concludes with some discussion of paths toward reform that might improve the situation. It suggests that certain types of legal reform, technological improvements in the rights clearance process, educator agreement on best practices, and increased use of open access distribution would help overcome the obstacles we identified.

My colleagues Silke Ernst und Daniel Haeusermann contributed a comparative legal analysis to the latest Berkman report.