Law and Information

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.)

The Berkman Center’s Digital Media Project team has released an in-depth analysis of the impacts of policy choises on emerging business models in the music and film industries. Here’s the link to the paper and the abstract:

The online environment and new digital technologies threaten the viability of the music and film industries’ traditional business models. The industries have responded by seeking government intervention, among other means, to protect their traditional models as well as by developing new models specifically adapted to the online market. Industry activity and public debate have focused on three key policy areas related to copyright holders’ control of content: technical interference with and potential liability of P2P services; copyright infringers’ civil and criminal liability; and legal reinforcement of digital rights management technologies (DRM).

Special thanks — and congratulations — to Derek Slater and Meg Smith of the Berkman team for their work.

Update on the EUCD implementation:

* Being in Tallinn, I’ve learned (thanks to Peeter Marvet) that the Parliament transposed the EU-Copyright Directive into Estonian law on September 22, 2004. I haven’t yet seen an English translation, but will add it to the Berkman Center’s project website as soon as it becomes available.

* Recently, the ECJ declared that United Kingdom failed to fulfill its obligations under the EUCD, since the UK has not transposed the directive into the law applicable to Gibraltar within the required timeframe. See Judgment.

* Spain takes a new attempt to implement the EUCD.

* Update (5/01/05): Lithuania has finalized the implementation of the EUCD, according to an email by Professor Mindaugas Kiskis. Mindaugas explains: “Implementation of the EUCD in Lithuania is not based on single piece of legislation, both the Law on Copyright and Related Rights, and the Criminal Code contain relevant provisions. Let me explain that 5 March 2003 Law only finalized the implementation of the EUCD in Lithuania, which was effectively started by 20 April 2000 amendments of the Criminal Code. The latter amendments were part of Lithuania’s adherence to the WCT.” We will update our website. Thanks to Mindaugas, who has been directly involved in drafting Lithuanian copyright legislation, for clarification.

Yesterday was the IP-day at iLaw Eurasia, a five-day program about ICT policy organized by the Berkman Center, the eGovernance Academy Estonia, the Center for Democracy and Technology, the Advanced Network Research Group at the University of Cambridge, and the Open Society Institute. In the first session, Professor Terry Fisher provided a fantastic introduction to IP law in cyberspace in general and the current tussles over digital media in particular. He also analyzed and evaluated scenarios for the future of digital media, including approaches such as strengthening IP rights, self-help, and alternative compensation systems. I had the pleasure to talk about the implementation of the EU Copyright Directive and discuss basic policy approaches and -choices in the context of anti-circumvention legislation. We used the implementation of the EUCD as an example to illustrate some of the thorny problems often associated with the transposition of EU-IP directives and harmonizing treaty law more generally: Scope and definitions, exceptions and limitations, and sanction and remedies.

In a second module, we were discussing IP protection of computer software. Terry started the session with an excellent lecture, offering a comprehensive overview of the different approaches to – and the evolution of – software protection by law. Much of the subsequent discussion, most ably led by Berkman Center’s Excecutive Director and iLaw program chair John Palfrey, was about the promise of Free/Open Source Software in Eurasia. Many of the fifty representatives from government, the private sector, and civil society in Eurasia emphasized the important role of OSS in creating a more sustainable information industry in economically less developed countries. However, we also discussed potential problems related to OSS, such as documentation, training, maintenance, etc., and legal risks associated with it. In this context, we touched upon potential concerns such as liability and (increased?) exposure to IP litigation – a much discussed topic here and abroad, given recent litigation in the U.S.

Our fabulous Mary Bridges, Communication Director at the Berkman Center, has summarized some of the take-away points from yesterday’s discussion.

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.

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.