Wednesday, January 18, 2006

Digital Rights Management in the UK

Inquiry into Digital Rights Management in the UK

The UK All Party Parliamentary Internet Group (APIG) is to hold a public inquiry into the issues surrounding Digital Rights Management (DRM).

DRM is used to describe a number of technologies that can be incorporated into electronic devices to control the use of digital media. DRM is usually thought of as "copy protection" for music, films and video games, but can have much wider application inclduing in relation to access to information by libraries and peole with disabilities.

More information can be found here

I sent a response which is set out below if you want the long version. The short version, is that there is an alternative to the present system where consumers are used as guinea pigs for DRM systems that ride roughshod over consumer protections and expectations, crash your computer, won't play on it or expose you to virus .

Under current European law DRM systems are given legal protection which means that we have no rights to 'break the lock' or in legal speak circumvent the DRM system, even if it harms our equipment or stops the excercise of the few exceptions to total control over access granted to us.

So whats the alternative? Its simple, review the DRM systems before they go on the market to see if they are necessary, safe and comply with copyright exemptions, data protection and cosnumer protection laws. If they pass the review, then the DRM system gets legal protection, (the lock can't be broken) and we get systems that comply with the law and public policy objectives on access to knowledge. It could be done on an EU wide basis so that sytems would only need clearance one. Its in everyone's interest, polticians, industry groups and consumers.

Now for the long version...

Written submission from the Consumer Project on Technology


The Consumer Project on Technology[1] ( cptech) welcomes the opportunity to respond to the All Parliamentary Internet Group’s inquiry into digital rights management (DRM). .This inquiry is timely, as the UK seeks to build a knowledge economy and is on the brink of switching off analogue television.

The wide scale deployment of digital information technologies has created uncertainly regarding access to knowledge goods. It is now very inexpensive, almost free, to copy and distribute works, even to millions of people. This has created a large degree of insecurity among publishers, and among the various responses is the rise of new efforts to control or limit the copying, or uses, of creative works and data.This includes the increasing use of digital rights management systems (DRM), which can take the form of technological locks, unique identifiers like watermarks and technical implementations to monitor and control use of the product. A wide variety of technologies are involved in DRMs and they are increasingly embedded in consumer goods, such as music players, CDs and Ebooks. There are also proposals to embed DRMs in all digital TV’s.

Much of the discussion on the digital environment has focused on the perspective of rights holders, fighting copyright infringement and respecting copyright laws. We believe that, to date, policymakers have failed to properly view the purpose and benefit of DRMs from the consumer perspective, and there has been little analysis of the long-term effect on access to knowledge of such an approach.

Our concerns with the DRM systems are several, but at the core, it concerns the predictable and harmful impact of having private parties -- publishers -- determine the default rules for access to knowledge goods. DRMs are setting law not just in relation to copyright but also general consumer and competition law. It is appropriate to at least explore and consider alternative ways of regulating the DRM regimes, which are more consistent with notions of protecting access to knowledge goods, and have an appropriate balance, in rules that are informed by democratic debate. Our response will focus on a approach that could lead to a more balanced approach.

Question 1: whether DRM distorts traditional trade-offs in copyright law

DRM measures provide the publisher with the possibility of managing works in ways that were not possible in print or analogue formats. As designed by and for publishers or other parties seeking to control access to documents and data, DRMs, are a system of private rules for the use of information. They are not themselves bound by the trade offs contained in copyright laws, which include exceptions and limitations to rights. A DRM regime can have a permanent term, make a work completely disappear, eliminate various "fair" uses that might be permitted for personal use, news reporting, education, archiving, or any number of other public interest uses.

Current technological measures threaten core exemptions in copyright laws for people with disabilities, libraries, educators, authors as well as consumers and undermine privacy and freedom. (Appendix 1 sets out the TACD resolution on digital right management , including a detailed description of the risks for consumers.)

Question 6: what legal protections DRM systems should have from those who wish to circumvent them

We assume that this question refers in part to "IPRED2" the proposed 2nd "Intellectual Property" Rights Enforcement Directive {SEC(2005)848.The proposals are against the public interest and further shift the balance in favour of rights holders. There are three main concerns: which are mainly derived from the wording used in Article 3 of the Directive.It (re) introduces after being rejected in the 2004 Enforcement Directive that:‘ Member States shall ensure that all intentional infringements of an intellectual property rights on a commercial scale, and attempting, adding and abetting and inciting such infringements are treated as criminal offences’.

The concerns include; 1) criminalisation of consumers ‘Commercial scale’ is not defined and does not unambiguously require financial benefits, eg profit or a commercial motives. There needs to be a clear distinction between consumers and commercial counterfeiters. 2) Restricting legal use; it is not clear` what activities ‘aiding or abetting and inciting such infringements’ would cover. It is so wide and imprecise that it could cover activities, which are entirely legal; 3) Restricting access to justice Article 4.2 f ( ban on access to public assistance or subsidies) would allow a Court to stop the use of legal aid or other support for defendants in cases where counterfeiting was alleged.

We agree with a recent report from the National Consumer Council that ' the challanges posed by the development of the digital economy will not be solved by introducing increasingly draconian measures against consumers through amendments to intellectual property law. New approaches are needed” [2]

DRM systems already have extensive protections under UK Copyright law, which are in turn derived from the Information Society Directive[3] . In essence this amounts to an attempt to find a balance between protection of DRMS and exercise of exceptions.There is a general prohibition against circumvention of DRM systems but an allowance for “Appropriate measures” to be taken where there is “an exception or limitation provided for in national law,” but the right-owner has not made available “the means of benefiting from that exception or limitation, to the extent necessary to benefit from that exception or limitation.”

However we believe that in practice no such balance is achieved. Instead there has been a significant shift in favour of right holders. Under the anti-circumvention provisions the burden is now on users to enforce their rights if a DRM scheme infringes them. As both the submissions of the RNIB and the Society of College, National and University Lecturers (SCONUL) make clear, the “appropriate measures” provided in UK Law [4] appear slow and cumbersome and appear to lack teeth in situations where a rights holder is reluctant to comply with a determination by the Secretary of State.


We would suggest there there is an alternative way to resolve access disputes that this inquiry could usefully explore.

Registration of protected DRM systems.

Instead of providing automatic legal protection to DRM regimes, we propose that vendors of DRM regimes or publishers are required to first register their systems, in order to apply for protection. Only registered systems would benefit from the anti cirumvention protections under copyright law.

Regsitration would not be automatic and would involve an evaluation of the system and negotiations over features of the system to protect user rights.For example, Adobe might apply for anti-circumvention protection for a particular version of its ebook publishing technologies. In doing so, it could be asked to explain how the DRM regime will respond to legitimate uses of the works under public (rather than private) standards for access. The legal protection would not then be forthcoming, until the regulator was satisfied that the DRM regime did not inappropriately restrict access to the work.

The DRM itself is an assertion of a contract right, and this too could be subject to review at registration. The mechanism for reviewing the terms of use of a protected DRM could be different from that involving the DRM itself. For example, public policy might not approve a DRM that would absolutely prohibit fair dealing, time shifting for television shows, or which did not allow a work to be used on alternative computer operating systems. Public policy could also insist upon a certain amount of transparency of the DRM architecture, and require interoperability.

A review at registration could also deal with concerns about overbroad DRM controls.The DRM is a lock on a copyrighted work. It is not necessary for the lock to be given broader rights than the work itself, and also not necessary for the lock to be authorized for every use of a copyrighted work, if the lock has predictable non-trivial uses which are contrary to public policy.

The legal protections on copyrighted works need not be extended to works or uses not protected by copyright, and they need not be extended in ways that are beyond that reasonably needed to protect the most important interests of the copyright owner.

The term of protection for the lock could be shorter than the term of protection for the copyrighted work itself, and the lock could be authorized in fairly limited areas, where it is truly needed to protect the core economic rights of the author and publisher, and not authorized for other areas, where there is a weak or non-existent claim that the DRM regime is needed.

Such a review system could be self financing for example by payment of user fees.Such a pre registration scheme could restore the balance between rightholders and users . It would stimulate public debate over the appropriate access to digital works, and motivate DRM vendors and publishers to think more constructively about reconciling the needs of publishers and end users.It could also deal with a number of issues rasied in the questions below.

Question 4: how consumers should be protected when DRM systems are discontinued.

We have read the response of SCONUL and agree that such an undesirable outcome points to the need for legislative regulation of the use of DRM systems. We believe that the registration system we propose could have as a requirement of approval, an obligation to lodge a DRM “key” with the regulatory authority to deal with such a situation. We agree that, as a last resort, there should be the legal right to circumvent such protections.

Question 5: to what extent DRM systems should be forced to make exceptions for the partially sighted and people with other disabilities

We have seen the submission of the RNIB and endorse their concerns. Under the proposed registration systems, technologies, which prevent use by people with disabilities, would not receive the privilege of anti-circumvention protection.

Question 7: whether DRM systems can have unintended consequences on computer functionality

Some DRM systems can impair or limit the use of other security measures in a consumer’s equipment, such as security settings on a computer. They can also require an Internet connection for registration that could leave a computer open to external attack. In neither of these cases is the consumer, if they are even aware of it, able to control these risks. The most notorious recent example is a hidden digital rights management software system called Extended Copy Protection (XCP) used by Sony BMG in CDs. A Pre registration system would allow the security implications of any proposed DRM systems to be investigated prior to its release into the market.

Question 8: the role of the UK Parliament in influencing the global agenda for this type of technical issue

We agree with other submissions that the UK Parliament should be allowed greater scrutiny of decisions taken by relevant bodies overseas in particular the World Intellectual Property Organisation. Treaties agreed at WIPO, often undergo little scrutiny, by the public or industries more broadly affected, yet harmonise new rights on a Europe wide basis, with little ability for either the EU or national parliaments to amend any detail.

We urge this group, given its focus on the Internet, to review the current proposal for a new Treaty on Broadcasting currently under discussion at WIPO. One of the most contentious issues is the proposal for a new layer of rights to be granted to webcasting (including the right to use DRM) in addition to any existing copy rights.[5].

Technology leaders [6], who consider that copyright is a sufficient tool to protect creative works, opposed the proposal, and stated that any effort to create a new layer of IPR based upon transmissions of information would increase the costs of transactions to obtain permissions to use and reuse works. Rightsholders, leading academic scholars, as well as consumer groups and other civil society NGOs have also expressed opposition to the treaty[7].

After opposing this webcasting proposal, the European Commission, with no public consultation, appears to be now supporting it. It is a profoundly flawed proposal that would be profoundly harmful to the public, and to many innovative services and technologies. The imposition of a new layer of formalities, and the attempt to claim ownership over copyright free or freely licensed works will have negative consequences on the entire Internet Community, who are largely unaware of these discussions. The proposal is due to be discussed at WIPO again in April 2006 and badly needs political and wider industry scrutiny.

28th December 2005


1] Cptech is a NGO, with offices in London, Geneva and Washington DC. Currently CPTech much of our work concerns intellectual property policy and practices, focusing on access to knolwdge.,but some of it concerns different approaches to the production of knowledge goods, including for example new business models that support creative individuals and communities. Full details can be found on our website We are also a member of the Transatlantic Consumer Dialogue ( regularly meet with US and EU officials to discuss IP policy. We also attend the World Intellectual Property Organisation(WIPO)to advocate for more balanced intellectual property laws that focus on access to knowledge


[3] * Directive 2001/29/ec of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society

[4] Section 296Z of Statutory Instrument 2003: 2498.[5](For more information see. "Document prepared by the Chair of the Standing Committee on Copyright and Related Rights. Working Paper on Alternative and Non-Mandatory Solutions on the Protection in Relation to Webcasting. SCCR/12/


[6] [6] (See

[7] (See:,, and rights holders (see[

Appendix 1
Doc No. IP-01-05 Date Issued: April, 2005: TACD Resolution on Digital Rights Management


Digital Rights Management systems are removing traditional rights from consumers, and the costs associated with them outweigh the benefits. TACD is calling attention to the problems produced by DRMs, and is calling on the EU and US Governments to establish certain preconditions complementary to the legal protection granted to these new technologies.

The Issue

Much of the discussion on the digital environment has focused on the perspective of rights holders, fighting copyright infringement and respecting copyright laws. Strong copyright laws in the US and EU[i] give copyright holders monopoly rights, not just on content, but also on the means to protect it. One of the tools deployed in the name of preventing copyright infringement are digital rights management systems (DRM), which can take the form of technological locks, unique identifiers like watermarks and technical implementations to monitor and control use of the product. A wide variety of technologies are involved in DRMs and they are increasingly embedded in consumer goods, such as music players, CDs and Ebooks. There are also proposals to embed DRMs in all digital TV’s.

These technologies have failed at every turn in the field: every work ever "protected" by DRM is currently available for download from P2P networks on the Internet, and there is no indication that these systems will ever work at their stated objective of stopping indiscriminate redistribution. However they impose costs on consumers by restricting use and curtailing competition.

Current technological measures designed to enforce copyright in the digital environment threaten core exemptions in copyright laws for disabled persons, libraries, educators, authors as well as consumers and undermine privacy and freedom. DRMs enable their controllers to make their own private rules and in so doing can override electronically not only the legislation of their own countries, but also that of other countries in relation to consumer protection and copyright exemptions.

A consumer who seeks to secure his interests and rights is restricted by technological and legal barriers that further curtail users’ rights provided under the law.[ii] Consumers are faced with a triple lock between them and the exercise of their rights: copyright protection, technological restriction (by using DRMs) and legal protection of the technological restriction (anti-circumvention provisions). This puts consumers in an impossible position. They are locked out of the exercise of their rights but cannot break the lock in order to do so. Even if a consumer is aware that their rights are being wrongly limited there is no consumer-friendly and workable means for them to exercise their rights. This is a matter of concern for TACD as US and EU consumers are amongst the first to face DRMs.

Current DRMs have failed to stop professional infringements as every DRM ‘lock’ has been broken, but they have successfully limited the rights of ordinary consumers. They have created a mindset whereby rights holders impose stronger and stronger control to limit use rather than innovating to meet consumer demand. In fact, DRM may be part of the problem, pushing frustrated consumers into the arms of unauthorized channels like music download sites.

We believe that policymakers have failed to properly view the purpose and benefit of DRMs from the consumer perspective, and that current laws provide little effective consumer protection. Policymakers are allowing DRMs to set the law not just in relation to copyright but also general consumer and competition law. Instead, they should require them to be developed, implemented and run according to well-established principles of balance, fair description and consumer choice.

Risks for Consumers

Access to and use of content . DRMs are not just used to limit access to content. They are also used to prevent ways of using the product that consumers expect or are given by copyright law such as private copying (including to make private back up copies) lending, excerpting, sampling or other content modification, and resale and donation. In order for consumers to benefit from the digitalisation of content and the many and varied types of different digital equipment available, they expect to ‘format-shift’ (transfer content onto other devices), 'space-shift' (view content at a location remote from the place where it is stored), and ‘time shift’, (record for use at a later time, such as recording a TV programme).

Restrictions on usage affect not just individual purchasers but also libraries and educators and prohibit access to knowledge. Many DRMs on the market now prevent these uses, such as copy-protected CDs that won’t play on computers and DVDs that are encoded to only play in certain regions of the world.

DRM systems also define social entities such as ‘household’ and ‘families’, but these definitions are often narrow or restrictive. Such systems contain upper limits on the size of ‘families’, the number of physical locations that can be considered part of the ‘household’, and even on the number of times that a device can leave a single household - in effect a technological limit on custody arrangements, divorce and property ownership.

TACD is concerned that, in Europe, the DVB standard is developing the concept of an ‘authorised domain’ which will define when, where and who can use a piece of content. It is unacceptable for an unaccountable industry group to seek to mandate definitions of such social and cultural importance. Such unprecedented interference into personal life goes way beyond the justification for the protection of copyright.

Consumers with disabilities: digital technologies have the potential to offer many benefits for people with sensory or mobility impairments. However, DRMs can prevent those benefits from being realised. DRMs can block the use of assistive technologies[iii] employed by people with disabilities including blind and deaf people. For example, they can make conversion into other formats such as Braille either impossible or expensive and difficult.

Privacy . DRMs incorporate mostly the collection and processing of personal data with the tendency to render anonymous or pseudonymous transaction in the digital environment impossible.DRMs that are designed to generate and transmit huge quantities of data about the personal use of a product or service carry out an unprecedented level of monitoring. It’s a little like having an irremovable camera owned and operated by the publisher attached to every book to monitor and record how its used and by whom. The consumer will often not be aware of these monitoring devices or the information they collect and will have no control over its use by the DRM controller.

Moreover, DRMs that are entangled with intellectual consumption and do monitor user behaviour invade a sphere with sensitive personal data potentially revealing political convictions, religious or philosophical beliefs or sexual orientation. Under the umbrella of copyright enforcement DRMs can be abused to profile consumers by collecting and reporting back personal data or data that can be linked to an individual. DRMs can therefore operate as ‘spyware’ which serves purposes that are different to DRMs original purpose and are harmful for consumers.

Interoperability The ability for consumers to use DRM-locked products on different devices and in different ways crucially depends on the ability of these products to work on all these different devices. Many DRMS on the market lock consumers into using a particular provider or piece of equipment, such as Apple iTunes, as they will not play (interoperate) on other devices. Others prevent use at all. Many DRMs require specific software platforms to work, which means that certain users are excluded from using the product - no DRM systems work on Linux or other open or free software platforms. Indeed, the purpose of DRM is to block interoperability: that is, to stop manufacturers from interfacing their equipment with existing equipment, except on terms set out by rights holder companies.

Transparency and Contract terms .All consumer experience of DRMs has been negative, because of unexpected and unwanted usage restrictions, and has been fuelled by a lack of transparency about the effect of the DRMs. Such secrecy is counterproductive if DRMs are seeking to gain wider acceptance and it has lead to growing consumer resistance. Protection of copyright should not be allowed as an excuse to undermine the principle applied to other consumer products - that a product’s function, including any limitations, should be clearly stated before a consumer buys it.

Information about limitations, however, is a necessary but insufficient condition. Any limitations must respect consumer usage expectations and copyright exemptions.The terms of a DRM system can be altered after the purchase, often without the knowledge or express consent of the consumer. For example, what a consumer can record or the number of copies they can make can be changed by a software download from the DRM controller, or by the expression of hidden "flags" in content -- a consumer has no way of telling in the shop which restrictions can be applied to the content on the device they are paying for, no way to know if, for example, a music label can flag a particular piece of music for "no backup" or whether a movie company can flag a particular show for "no record."

In addition, a provider may use contract terms under which a consumer signs away copyright exemptions such as private use. These contractual terms can be written in such an unintelligible form that the consumer may not be aware of their actions. Alternatively, the consumer may have no option but to agree because there is no other means of accessing that content and the contracts are non negotiable.

Security issues. Some DRM systems can impair or limit the use of other security measures in a consumer’s equipment, such as security settings on a computer. They can also require an internet connection for registration that could leave a computer open to external attack. In neither of these cases is the consumer, if they are even aware of it, able to control these risks.

Anti-competitive behaviour. Supporters of DRMs claim that they will bring a wider choice for consumers to access and use digital products. The reality for consumers using many current DRMs is the opposite. DRMs are used to split current consumer usage rights so they can be exploited based on different pricing models. This will have the result of consumers having to pay more to do things that they currently expect to be a normal function of the product. DRMs may be used for price discrimination and market segmentation, such as the regional encoding used on DVD, and iTunes’ higher prices for downloading in the UK. DRMs can restrict the creation of a single market within the EU and undermine the goals of a global trading market.

DRMs can be used anti-competitively to lock out competitors or to shut out or control complementary products. For example, other content producers, like games manufacturers or makers of digital television, will have to contract with DRM controllers in order to access their content. Restrictions on competition threaten product diversity and choice for consumers.

Moreover, DRM licensing cartels, such as those governing the licensing of DVDs, and interfaces like HDMI and DTLA, and recording technologies like DVHS, are controlled by incumbent technology and entertainment companies. New market entrants who wish to add functionality to a media device -- say, by building a hard-drive-based DVD "jukebox" -- are inevitably stymied in their efforts because the licensing cartels will not allow them to lawfully produce such a device. In general, licenses that extend the functionality of cartel-licensed technologies, like DVD, are only approved if they are proposed by companies or consortia that are represented in the cartel: the DVD licensing body only gives licenses to innovate to companies that are members of the DVD licensing body.

Redress. DRM systems shift the burden of proof onto consumers who are the weaker party in any litigation and, as is well known, are often reluctant to litigate due to concerns over costs. Previously the burden was on the rights holder to enforce its rights against infringers, which required them to establish proof of infringement and also provided defences to consumers.

Under the anti-circumvention provisions in US and EU legislation the burden is now on consumers to enforce their rights if a DRM scheme infringes them, through procedure that is so costly that is has never successfully been managed.

TACD endorses the comment in the Commission funded Indicare report[iv] on digital rights management and consumer acceptability that ‘currently costs seem to outweigh the benefits of DRM from a consumer point of view. Many arguments in favour of DRM either do not bear a closer examination or need time and further development until they become valid.’


TACD urges the governments of the United States and the European Union to set certain preconditions that DRMs have to meet in order to qualify for legal protection. The preconditions recommended by TACD are set out below:

Access to and use of content DRM systems that are capable of being used in excess of what is necessary to protect copyright will not receive the privilege of anti-circumvention protection.

DRM systems that define social entities such as ‘household’ and ‘families’ in their technology, and that define these entities more narrowly or restrictively than have been defined in local law or custom will not receive the privilege of anti-circumvention protection.

DRM systems that block the use of assistive technologies employed by disabled people will not receive the privilege of anti-circumvention protection.

Privacy. DRMs should be certified as compliant with data protection rules or privacy rights by the Data Protection Registrar or privacy enforcement agency before they are introduced onto the market. By building privacy interests into the design of the DRM, privacy rights may be enforced more effectively.In particular, DRM systems should not use registration, use data, or other personal information for secondary purposes without first obtaining the individuals' informed and voluntary consent. That is, the individual should be able to use the media without consenting to marketing or other secondary uses of their personal information.

Interoperability DRMs that restrict the normal expected usage of that product, such as space and time shifting, should not receive the privilege of anti-circumvention protection.

DRMs whose licensing and implementation terms preclude the use of Free and Open Source Software (FOSS) will not receive the privilege of anti-circumvention protection.

Transparency. DRM systems that are ‘updated’ without a user’s consent will not receive the privilege of anti-circumvention protection.

All equipment containing DRMs must be clearly labelled showing what uses are allowed and what equipment it will or will not work on.

DRM systems that are marketed without adequate disclosure of restrictions will not receive the privilege of anti circumvention protection.

Security. DRM software should not hamper or limit the use of software protection software on consumer computers.

DRMs should not bring new vulnerabilities into consumers computing equipment and such systems must not interfere with consumers’ ability to set and retain their own polices and levels of security for their own machines.

Anti-competitive behaviour. The potential anti-competitive effects of DRMs should be reviewed. In particular, a competition investigation should be undertaken into the licensing terms for DRM technology and the effect on competitors and complementary producers.

Redress. Consumers must have clearly defined and enforceable consumer rights that cannot be overridden by contract terms, DRM systems or other technological measures. They should not have to rely, as now, on the restraint or goodwill of the rights holders or, as in Europe, on the whims of each Member State as to which consumer exemption they will allow.Among the consumer rights that should be clearly expressed:

right to private copy

right to fair commercial practices

right to be informed and refunded for faulty products

right to privacy and data protection.

right to free speech

A simple and speedy alternative dispute resolution system should be established for cross border DRM disputes so consumers do not have to rely on costly litigation for low value disputes, whilst retaining the right to use court action as a last resort.


[i] US: Digital Millennium Copyright Act. EU: Directive 2004/48/EC ‘the Copyright Directive’

[ii] ‘Digital rights Management and Consumer Acceptability’ State of the Art report December 2004-Indicare – ‘The Indicare report’. ( The publication is a deliverable of the INDICARE Project that is financially supported by the European Commission, DG Information Society, as an Accompanying Measure under the econtent Programme ( ref. EDC-53042 INDICARE/28609). INDICARE- The informed dialogue about Consumer Acceptability of Digital Rights Management Solutions.

[iii] Assistive technology is any device or piece of equipment that is used to maintain or improve the functional capabilities of a person with a disability

[iv] The Indicare report. Ibid


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