Down on The River

Morning session final day WIPO 13th September 06

2006-09-13T06:23:00.000-07:00

After the solo performance of the chair of the committee yesterday with his promise of hugs and kisses and life long friendships at a Diplomatic conference this morning we heard the reaction from some delegates notably India and Brazil. It was not good for the Chair. They made it clear that there are still serious concerns and questioned the advisability of going for a Diplomatic conference (DC) (the final stage of Treaty making and the outcome pushed by the Chair) at this stage.

The last two days have been dominated by speculations about the series of bilateral discussions that have been taking place between the US, India, Brazil and the EU. While they have all had discussions with other countries, these parties are seen by many as the keys to whether an agreement for a Diplomatic Conference will be reached.

India introduced some reality into the situation and a strong rebuff to the idea that any differences could simply be resolved at a the DC. In an eloquent and detailed speech they pointed out that they still had major concerns that went to the heart of the treaty namely the inclusion of the references to webcasting ‘in its widest sense’ in the text and going beyond a signals based approach . Any further push for a Diplomatic Conference (DC) with first addressing this issue would likely lead to more acrimony than acceptance. They ended in the starkest terms, that if these 2 issues were not addressed and brought under some common understanding the "going up the garden path" to a DC would likely end in a fiasco.

Russia, Mexico and the Philipines then spoke in favour of going for a DC.

Brazil in a carefully worded intervention gave an insight into what has been discussed in private. Said that they would support to a certain extent a treaty which focused on a more narrower basis focusing on a right of transmission which was supported by ‘some delegates’. The reference to transmission by any means included over computer networks ( seen as the webcasting references) at least as a defensive measure was imperative to some members. The extent to which even this references would turn the Treaty into one which covered webcasting/simulcasting was the ‘million dollar question’ that required further discussion/research.

Then their main concern- which was on procedure. They were not prepared to agree to a DC based on the Chairs suggestion of delegates providing him with broad drafting instructions to prepare the text to be discussed at the DC. They would want to see the text.

Iran and Indonesia joined in criticism of the procedure . Iran wanted space before and DC to have a clean text . Indonesia wanted an impact study before a DC.

Chile with a great metaphor also criticized the rush to trying to establish a date for the DC without having a clear text. "you need to swim before buying a swimming pool".

There was then a break, when the talk was that there would be no DC and that India ‘s views were key. During that break the chair's draft of next steps was circulated which includes the controversial drafting steps and seeks to set a date for the DC.

The proposal for the afternoon is to go through this document point by point. Though the EU reserved the right to make a global, statement as they don’t think a point by point approach is the best way, as the issues are linked.

Then lunch. The chair met with India . The outcome is not known.

This afternoon session promises to be lively!

EU Consultation due on Net Neutrality , DRMs Interoperability etc

2006-07-20T05:06:00.000-07:00

EU Consultation due on Net Neutrality , DRMs Interoperability etc

In a recent speech by Commissioner Reding ( Head of DG Info Soc)
She gave a preview of the issues to be covered in the soon to be published
consultation 'Communication on Content Online' . These will include sports
rights, DRMs and interoperability, cross border licences and 'awareness
raising on the importance of IPR's.' It will also raise questions about new
business models and methods of payments. The Con Doc should be on site next week and will run till mid October.

Speech: "Commissioner Reding, «Content online: Europe's strategy to
foster content creation and distribution in the multi platform media
business»", 18 July 2006

ec.europa.eu/comm/commission_barroso/reding/docs/speeches/helsinki_content_online_20060714.pdf

In other news , (14 July 2006) The European Commission launched a study to 'prepare recommendations that will ensure the EU's standardisation policy for the information and communication technology sector meets the challenges of today's fast moving markets. The analysis is being conducted against the background of major changes in the ICT sector. The combination of liberalisation and globalisation has brought competition within and between sectors, strategic partnerships between companies and
a decreasing role for governments. The most striking development is the shift from hardware to software and the impact this has on traditional standardisation policy. The results of the study, and its proposals, will be presented at an open workshop in spring 2007.’

For more details of the study/team/ deliverables see:

www.ictstandardisation.eu/

There is also a conference held as part of the Finnish Presidency in
November on Information Society Technologies (IST) that include sessionson IPR and standards
europa.eu.int/information_society/istevent/2006/index_en.htm

Finnish EU Presidency- New Innovation Policy a priority

2006-07-05T04:58:00.000-07:00

From 1st July for the next six months Finland has the Presidency of the EU - it will be followed by Germany.

The outline work plan has been agreed in advance and will broadly cover the issues agreed in a joint document with Austria ( the previous President) See here for details: www.eu2006.fi/the_presidency/en_GB/work_programme/_files/75197089060421975/default/st16065.en05.pdf

The President, however, does have the opportunity to pick some key areas they want to focus on. A word of warning though- Presidency agendas are notoriously overambitious and tend to get bogged down in political in fighting.

The Finnish Prime Minister Matti Vanhanen is today setting out the priority areas for their Presidency at the plenary session of the European Parliament. Copy of his speech here: www.eu2006.fi/news_and_documents/speeches/vko27/en_GB/1152081630727/

There are a number of issues that are relevant to those interested in IP and Health issues .I highlight some of the points made in Mr Vanhanen's speech and the points made in the draft agenda: www.eu2006.fi/news_and_documents/other_documents/vko24/en_GB/1150719844665/_files/75413592640520341/default/preliminary_agenda.pdf

It's a mixed bag. Very welcome are the strong commitments made to greater openness of the secretive Council of Ministers proceedings, with the Finnish Government committing to webcast public Council sessions itself , if the Commission does not get its own website in order. Also welcome is the agreement for the Council to make greater use of economic, social and environmental impact assessments before agreeing to legislation- though of course it all depends on how the impact assessments are drawn up !

The greater commitment to communication also involves a weekly briefing in Latin to celebrate Europe's ancient culture!

Innovation and competition are key themes:
.
'The Finnish Presidency wants to make progress on the development of a broad-based innovation policy. In the Council's legislative work and at the meeting of Heads of State or Government in Lahti, we will focus on initiatives aimed at creating an environment that is conducive to innovation and to the effective use of it. The goal is a policy that generates demand for innovation.'

'A broad-based innovation policy requires joint action at EU level and more effective decision-making with regard to standardisation, protection of intellectual property and development of financial markets, for example.'

The more detailed workplan indicates , as well as continuing the work on copyright levies and the Community Patent, Finland will produce a report on new ideas and challenges in innovation policy by end 2006. In developing its broad based innovation policy it will draw on the Aho report: ec.europa.eu/invest-in-research/pdf/download_en/aho_report.pdf

One of the Aho report's main points is the creation of an innovation-friendly market in which businesses can launch new products and services. The report considers e-health, pharmaceuticals, energy, environment, transport and logistics, security and digital content as the top sectors in which the market needs to be urgently created, with public procurement driving the demand

As was made clear in a good article on eurativ.com ( from which some of the information below has been taken see below for link) ' Finland proposes to change the direction of EU innovation policy.'

For this purpose, the Finnish Presidency has prepared a background discussion paper for the Competitiveness Council ministerial meeting taking place on 10-11 July 2006. www.eu2006.fi/news_and_documents/other_documents/vko26/en_GB/1151507822505/_files/75465236385958747/default/com_discussion_paper.pdf.

While much of the paper in practice is not new ( and very much based on the Aho report) what is new in a Presidency paper is an emphasis on the demand ( user) side of standards , R&d and IP and the emphasis on the need for users to have a role in all these areas.

At the competitiveness meeting ministers will be invited to participate in workshops on different topics related to innovation:

- competition and innovation-friendly regulation,
- public services as drivers for innovation,
- adaptability of research systems,
- entrepreneurs' role in bringing innovation to the markets.

Next Steps
The Finnish Presidency will provide a summary of the informal Competitiveness Council's results soon after 11 July, 2006.

The Commission will publish a Communication on Innovation in September 2006.

The December 2006 Competitiveness Council is set to discuss "concrete deliverables and suggestions for practical policy improvements that might be taken up by the forthcoming German Presidency".

Other issues

During the Presidency they will also set out the preparations for the ratification and implementation of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expression.

Health
Community competence on Health matters is a controversial subject, while there is cooperation and competence in limited areas, many Member States want to retain their ability to make policy independently in this area. Equally some sections of industry are opposing the use of health concerns as a justification for new regulations. Against this backdrop there is an intriguing sentence at the beginning of the work plan section on Health:

'Protecting Health is an obligation under the Treaties which extends to all common policies. Finland wants to determine explicitly what that entails during the Presidency'

They are also keen to try to finalise the 7th Research Framework Programme during their Presidency which contains key commitments on medical R&D.

A new pharmaceutical forum will hold its first meeting during the Presidency which will set out a strategic blue print for the work of the G-10 working party on pharmaceuticals and competitiveness. Regrettably by all reports the forum looks like shaping up to be an other opportunity for Pharma to present its wish list , with most relevant NGO's excluded. Perhaps the Finns could live up to their ambitions on openness and transparency by allowing a broader range of stakeholders to take part?

The Presidency also commits to taking forward the EU commitments on development and in particular the Africa Strategy.

Read On : . Article on Finnish proposals on Innovation with links to key documents : www.euractiv.com/en/innovation/finland-proposes-change-direction-eu-innovation-policy/article-156511

Notes of WIPO Barcelona Seminar

2006-06-26T16:03:00.000-07:00

BARCELONA SEMINAR TO DISCUSS BROADCASTING ISSUES

On June 21, 2006, I was a panellist at an all day seminar in Barcelona entitled “The Proposed WIPO Treaty on the Protection of Broadcasting Organizations: From the Rome Convention to Podcasting"

For details see:
http://www.wipo.int/edocs/prdocs/en/2006/wipo_ma_2006_23.html

It was organised by WIPO, the Catalan Broadcasting Council and the Barcelona Bar Association and ‘supported’ by several other EU broadcasters organisations (.Association of Commercial Television in Europe (ACT), Association of European Radios (AER), Association of Spanish Commercial Radio (AERC), International Association of Broadcasting (AIR), European Broadcasting Union (EBU), and the Audiovisual Producers Rights Management Organization (EGEDA). )

While the meeting was in theory open to all, only one weeks notice was given, so it made it very difficult for civil society to attend, and I was the only representative there from consumer/ public interest groups. In addition my talk was cut from a promised 10 minutes to five, though I was allowed to question some of the speakers. Despite the title there was little detail discussion of podcasting, most speakers focused on justifications for the Treaty itself.

By the time I arrived ( due to travel delays I missed the opening ceremony and general introductory panels) there was quite a small audience , about 20 or so people. It was worth attending though to hear the coded and not so coded messages from EU Broadcasters, the EU Commission and the WIPO Secretariat on how they think the discussions on the Broadcasting Treaty should play out at the next WIPO meeting in September.

Key themes coming out of the meeting:
· EU broadcasters very keen to get the Treaty finalised quickly –broadcasters reps spoke of the need to deal with webcasting separately, but to get on with ‘their’ treaty.

· EU Broadcasters also want simulcasting included ( i.e protection for the simultaneous transmission on the Internet as well as on terrestrial cable and satellite systems )- without such a right their broadcast protection is ‘meaningless’.

· WIPO secretariat see the removal of the controversial webcasting proposal from the main text as removing the final obstacle to agreement to a Diplomatic Conference (DC), at the September meeting. Their message was that it was a time for compromise, on the basis that no one opposes a Treaty , just its contents(!).The final details can be resolved at the DC, where as in past years, many proposals could be made.

· EU Commission- All 25 member States ‘without demur’ support a DC. Support for simulcasting is a compromise position given different legal traditions ( see below), not on the principle of granting protection but on extending protection to a new class of beneficiaries.

· There is clearly a split between the US and EU on extension of rights to the Internet. Given the strong lobbying from EU broadcasters, it is possible that the Commission could push more strongly in September for the inclusion of simulcasting , but not webcasting in the main text of the treaty. This may be opposed by the US as its excludes pure webcasters such as Yahoo.

· Several Delegates mentioned linking the Broadcast Treaty to signing up to the Rome Convention ( which the US has not done)

I couldn’t take a verbatim note of proceedings and some notes are based on the translations from the original languages , so double check directly with the speakers if you wish to quote their views. With that caveat (!) below are some points of interest from some of the speakers.

The second panel was on Broadcasting in the 21st Century : scenarios and challenges’:

One of the speakers was Yahoo Europe ( the main lobbyist for the inclusion of webcasting) represented by its Legal Director , Mr Ventura Barba . In essence he argued that:

The only difference between webcasters and broadcasters was the technology used, the business model was the same as was the experience for consumers. They were in the same field and needed the same protection against potential signal pirates. In addition they already dealt with radio and TV broadcasters who were putting pressure on them to guarantee protection.

Given that his justification focused on protection against signal piracy I asked him if Yahoo would therefore support a the proposed webcasting treaty which was limited to signal piracy without the broader protections in the proposed Broadcasters Treaty. He said that the signal piracy approach was a start but not the end and not what ‘we deserve’.

Other panellists spoke about the need for a Broadcasting Treaty and the need to show that Broadcasters were creators too. They mentioned that Spain's new broadcasting law will give protection to simulcasting, webcasting and podcasting.,( IP Director, PRISA group Madrid.)

The copyright Counsel for Alfa- Redi, Lima While suggesting that additions to the Treaty should not be limited to webcasting/simulcasting but`also included 3G radio broadcasting and Digital Terresterial Televison . Care should be taken over identifying the problem. People called pirates in Spain centuries ago were called lords in the UK. It was important not just to think of IP but also consider data protection, civil liability, cultural diversity( especially the UNESCO convention)and the rights of other performers. The Internet is different but the same principles on these issues must apply.

This was followed by 30 minute session from Mr Ficsor, Chairman, Central and Eastern European Copyright Alliance (CEECA) Budapest a well known supporter of the Treaty and always dismissive to opponents. True to form he started off by criticizing the reactionaries of the Copyleft movement who exaggerated the effect of the Treaty. A strong defence was needed against those who opposed the Treaty. The Treaty was essential and its adoption urgent as the Rome Convention was old fashioned. However he said the Treaty was only worth having if it had proper protections for broadcaster which included TPMs. (He did acknowledge that the Treaty would also have to have exemptions for public interests if TPMs were included). It should also include simulcasting, webcasting should be dealt with separately.

I questioned him on the difference between simulcasting and webcasting, wasn’t it just seeking to protect a limited class of beneficiaries ( traditional broadcasters) rather than any real difference in activities between webcasters and simulcasters ? As such . didn’t all the concerns about the chilling effects of extending protections to the Internet apply to simulcasting as much as to webcasting?

He replied with a circular argument. If simulcasting was not protected then Broadcasters would not have signal protection if they choose to simulcast (!), as even though the traditional broadcast signal would be protected, the signal on the Internet would not be. In practice it would be ‘meaningless’ if broadcasters don’t have protection of simulcasting.

I spoke on the next panel. This was broadly split between broadcasters who supported the Treaty and artists representatives concerned about the lack of protection of their rights.

The European Broadcasting Union appeared to be worried about the future of the Treaty, repeating that the Treaty needed to be finalised urgently , to include simulcasting, but that webcasting should be dealt with separately.

Mediaset wanted the Treaty but said that webcasting should be included. There would be no threat to others rights as ‘fair rights’ would be included.

I explained the consumer concerns about the Treaty eg for non signatories to Rome, on TPMs , limitations and exceptions and repeated my belief that there was not a substantive difference between webcasting and simulcasting. I pointed out that NGOs had been supportive of a pure signals based Treaty and had provided a draft text.

A representative of the artists organisation, Artistas Interpretes Sociedad de Gestion (AISGE) , Madrid opposed a broad treaty, they wanted it limited to a signal based approach. As drafted it could cause conflicts between broadcasters and rightholders. The Treaty was seeking to regulate the highway before the car ( content = car) as artists did not have appropriate international regulation of their rights.

The legal representative of Artistas,Interpretes, Ejecutantes (AIE), Madrid supported the Treaty and its extension to simulcasting. She sought to draw a distinction between simulcasting and webcasting. Simulcasting was exactly the same as traditional broadcasting just on a different medium , whereas webcasting goes into other fields e.g podcasting, mobile phones. ( I pointed out that the current draft does not limited it just to simultaneous transmission but allows delayed transmission which could include, VOD, podcasting. ) . She also suggested that it should be a requirement that all countries join the Rome Convention.

The EBU rep was questioned about the concerns of artist and consumers. He said it was a ‘dialogue with the deaf’ as there were no concerns, as there were no threats to either groups rights.

The final two panels were directly on the WIPO Broadcasting Treaty. The first panel was a pretty fair overview of the discussions to date at WIPO by Professor Delia Lipszyc from Buenos Aires University.

The final panel was chaired by Jukka Liedes ( in fluent Spanish), Chair of the SCCR charged with taking forwarded the Broadcasting Treaty.

· He was a great pains in a lengthy introduction to make the point that the current document was just a draft and not the final document ( I assume to head off criticisms that he had not included several Latin American proposals in the previous draft.)

· But what was clear` was that the need for updating the protection of Broadcasters had been proved, to protect against signal piracy ,and, that the basis of the protection was the investment that broadcasters had made.

· There was concern to ensure separation between content and signal. There was a clear demand that there should be no interference with the content system from content holders. There needed to be a balance between multiply stakeholders and the framework must be acceptable to the majority of Governments. (noticeable that he didn’t say all)

The Panel included a representatives from the EU Commission, the Permanent Mission of Brazil in Geneva, and IP offices in Bogota, Lima and Mexico. It seemed like it was a last push by Europe through Spanish/Portuguese speaking interlocuters to convince Latin American delegates how great the broadcasting treaty would be.

Lima, Mexico and Bogata IP reps supported the Broadcasting Treaty but all made comments on concerns about TPMs and limitations and exceptions. There were several comments about previous Diplomatic Conferences where ‘hundreds’ of new proposals had been made. I assume to make the point that concerns about wording should not delay the DC as changes could still be made at the conference.

Julie Samnadda from the EU Commission ( one of the two person team negotiating the Treaty at WIPO) gave a detailed explanation of the EU’s position ( building on the previous Commission response to the Transatlantic Consumer Dialogue’s resolution on the Treaty www.tacd.org). It appears to be pretty inflexible on the substantive points.

She spoke very quickly so I don’t have all the points. However she is open to the idea ( subject to approval) to provide a briefing at WIPO to civil society on the commissions position, which I will be following up.

She gave bullet points on four areas.

1. Commissions Position in the negotiations

· The Commission represents all 25 member States plus two Accession States, Bulgaria and Romania at WIPO.

· All 25 have agreed ‘without’ demur to go forward with the Broadcasting Treaty, as its important to broadcasters and consumers.

· [It is even a virtue!] Commission deeply committed to the multilateral approach rather than a bilateral approach. Many Member States are firm supporters of the UN and WIPO

2. Relationship between the documents as they stand and the Community aquis.

· Most of the exclusive rights in the draft Treaty are already a part of Community Law . E.g right of reproduction, making available right, distribution right, legal protection of TPMs. Others are in addition to Community law but not to some of the laws of Member States e.g protecting the pre broadcast signal, a broad right of retansmission.

· There is a distinction between the approaches taken between Member States. A number of ‘Northern ‘ MS including Ireland, UK, Denmark, Finalnd , Austria, Sweden, Cyrus and Malta have based their laws on a technology neutral approach – this means that webcasting is already covered in their laws.

· ‘Southern’ States including France have a more restrictive approach to creating a new class of beneficiary. As a result a compromise position has been reached on simulcasting. They accept that simulcasting is covered by community law ( as the right of reproduction refers to any form including the Internet) but the caution is over the creation of a new category of beneficiary.

· Whether the definition of the protection is based on a description of the beneficiary of the activity is therefore irrelevant to Northern MS as its already covered in their national laws but it is a critical issue for Southern MS.

· At an international level Member States are willing to include simulcasting as this is most important to EU Broadcasters. ( Though she didn’t say this the implication is that webcasting would not be acceptable as it creates a whole new class – pure webcasters- rather than just an extension to an existing class).

3.Rights and exception as they are expressed in the present draft and a possible way forward drawing on the community approach

· Strong supporters of Berne 3 step test will not move away from that.

· EC prepared to export and discuss at WIPO their approach to balancing TPMs and Exceptions and limitations, once have approval of Member States to do so. This refers in part to the ‘2 step test’ in the Copyright Directive in relation to the restriction of the exercise of exceptions and limitations by a TPM. Only if voluntary measures fail can a beneficiary of the E &L appeal to a body who then may remedy the problem. ( note this appeal mechanism approach is strongly criticised by consumer groups in Europe )

4. Relationship between the Treaty and other areas e.g cultural diversity.

· Cultural diversity important issue for Europe as many languages and ethnic groups, do not see it just as developing country issue. Signatory to UNESCO Convention on Cultural diversity.

· Do not see protecting broadcasters rights as necessarily in conflict with UNESCO convention. Do not favour provisions inserted into Treaty on this issue which seek to create a hierarchy of norms. eg which Treaty trumps another.

Guilherme de Aguiar Patriota, Brazils representative at WIPO made a number of broad points:

· Had the impression that the Broadcasters wanted a quick Treaty. They appear latecomers to technological change. They need to adapt their business models to the new reality of the Internet. He does not think that the legal framework will determine the pace of change.

· Negotiators at WIPO should be aware that a return to the 96 Treaties - ‘WIPO Internet Treaties’ was not feasible on technological or political terms and because of the involvement of other groups , such as civil society groups , who are attentive to the impact of any new Treaty. Developing countries are aware of the different affects on different levels of development and that new rights may limit their policy space.

· The signal in digital form was too important and widespread to be controlled by a very narrowly defined set of broadcasters with exclusive rights. It was important to ensure that the philosophy behind the Treaty was correct and that the object and subject of protection was clearly defined.

· 2 main proposals to deal with the Internet. 1) Simulcasting supported by Europe. This option favours the traditional broadcasters, who are attempting to hold onto their business role in a new technological world, which challenges it. 2)Webcasting supported by the US. Seeking to widen beneficiaries to newcomers, who just work on the Internet. Questions about whether such protections should also apply to telecom companies. These rights are untested.
· There are however a whole range of other stakeholders e.g authors and public interests whose interests need to be safeguarded. Also concerns about exceptions and limitations.

· Broadcasting has an important public and social role in Brazil and there are special regimes that broadcasters have to abide by. Concerns that international treaties override national regulations.

· It is not clear what equilibrium will come out of this Treaty. The range of rights and protections for example TPMS are untested in developing countries. It gives greater protections to broadcasters and also need limitations and exceptions for consumers and others. Won’t bind ourselves to the 3 step test as that test was part of the copyright balance this is a new treaty.

· A Rome criterion for eligibility is relevant. The US is not a signatory to the Rome Convention. This should be looked at.
· Support cultural diversity provisions.
· Need to study the duration of the rights given. When do they end- how are they exhausted?

Rita Hayes, Deputy Director of WIPO closed the seminar .

· She felt there had been a good discussion on the framework for a Treaty. Leave people with one thought, Where do you think we are going? She hadn’t heard anyone say they don’t want a treaty. Calls for different levels of treaty and different ideas about how it will be done. She highlighted the fact that someone ( me) had said that they would agree to the protection of signals , so all were in agreement to a Treaty (implying I assume that NGOs could not object to a DC as we had agreed to signal based treaty – though such a draft has not yet been agreed)

· The chair of the SCCR had been given the task of preparing the next draft. This would be prepared on the basis of the documents previously submitted and on new and existing proposals and the discussions at the previous SCCR, which took a full five days. She knew that those discussion included calls for proposals not included to be put in. She was looking forward to what the chairman would do about this (!)

· The next draft would be prepared for August so that delegates would have time to review before the next SCCR in September, with a view to making a recommendation for a DC in 2007.

· Proposals on webcasting and simulcasting have to be with the Chair by 1st August, who will then prepare a revised document on the two issues. Discussions on this will take place at a SCCR after the General Assembly.

· On the Broadcasting Treaty there has to be the will to move forward. Many more proposals are\ likely to be made and can be discussed at the DC , as in past DCs. Issues have been discussed and there is a realisation that there is a need to look at broadcasting organisations and to deal with their rights. Need to compromise can’t deal with all issues at SCCR but can move forward to DC in 2007 and deal with them there. She is though, speaking as a member of the Secretariat and realises that it is a member driven organisation and it is for Member States to agree (!).

UK MP's report & recommendations on DRMs

2006-06-06T04:30:00.000-07:00

A group of UK MP's ( the APIG) has released a report of its recommendations following an inquiry into digital rights management (DRM). The inquiry received over 90 written submissions from consumers, think tanks, libraries, print media publishers, the film and music industries and lawyers. A cross selection of the respondents were also invited to give evidence to APIG officers .

Our submission was quoted a number of times:
www.apig.org.uk/current-activities/apig-inquiry-into-digital-rights-management/apig-drm-written-evidence/Consumer_Project_on_Technology.doc

The recommendations are good as far as they go, such as : a wider exemption for academic research; better labelling of DRMs for consumers so that it will become crystal clear to consumers what they will and will not be able to do with digital content that they purchase; an investigation of the potential ability of these systems to stifle competition and undermine the EU single-market; and a reminder that DRMs that mess with consumers equipment, as Sony’s root kit recently did, could be subject to criminal sanctions .

Importantly it also recognises that much of the policy leading to new copyright laws is made by 'patent office bureaucrats ' and has not been subject to scrutiny by politicians or the public. Its remedy for this is to have the British Library act as an 'honest broker' and convene a ‘UK stakeholders’' group of all interested parties to discuss the issues.

There are inevitably some disappointments: it recognises that the UK legal concept of 'fair dealing' (which defines how people can use copyright material) is narrow and restrictive , but doesn't recommend change, just better labelling; it stops short of recommending a better system for redress if DRMs breach user exemptions and limitations to copyright( the problems raised are too theoretical) and despite the problems thinks interoperability ( enabling digital content to play on different machines) should be left to the market.

The report is also worth reading for the insight it gives into the views of the different players. Too often the 'industry' is seen as one mass with the same views. Here its clear that there are differences in approach between the big record companies ( who generally support the use of DRMs) and smaller players ( who generally don't). Between content owners and equipment manufacturers, who are worried that they won't be able to make new products because of restrictive licensing. One of the best examples of this was given by Intel , who explained that there were no portable video jukeboxes on the market because it was against the DVD consortium rules ( who essentially control the licensing of the technology to unlock videos) to create a portable device.

They also gave a warning: that suggested remedies for over broad TPMs (that stop you doing what you are legally entitled to do) may not work in the future. Many activists argue for a legal right to break ,'circumvent' over broad TPMs. The Report warns that it is quite possible that in the future TPM systems will become unbreakable. Its therefore no use asking for laws that allow you to circumvent TPMs, rather they suggest it is better to have the ‘right to remove’ ie a requirement for the removal or partial removal of the lock itself (the TPM system) from the product. However, the MP's don't follow up this line of argument with a formal recommendation.

The 30 page report can be downloaded as a PDF from APIG’s website.

www.apig.org.uk/current-activities/apig-inquiry-into-digital-rights-management/DRMreport.pdf

For those of you with a shorter attention span, here is the official report summary as provided by APIG’s secretariat of the inquiry’s key recommendations with the reasons for them ( from a link on the Open Rights Group Site):

www.openrightsgroup.org/2006/06/05/launch-of-the-apig-report-on-drm/#more-109

Read on:

Press Coverage:
The Register: www.theregister.co.uk/2006/06/05/apig_report_ready

The BBC: www.news.bbc.co.uk/1/hi/technology/5041684.stm
UK digital rights group: Open Rights Group : : www.openrightsgroup.org

EU IP consultation ( yes another one)

2006-04-21T09:34:00.000-07:00

The EU Commission has issued yet another consultation on how to make the EU market (the internal market) work.(Thanks for the heads up Cornelia!). It covers a number of issues but it has a specific section on intellectual Property regimes. To give a flavour of the document its states that in this area its aim is:

' Ensuring that intellectual property rights ('IPR') regimes facilitate the
development and diffusion of knowledge and technology'

and

'Finally, we also consider it important to ensure that our
regulatory framework is user-friendly, so as to enhance acceptance and lawful use of
protected products."

It also asks a specific question:

7) Do you consider that the current IPR regimes foster growth and innovation? In your

experience, where is more focus or action needed?

Its important that we respond, even if it is repeating what we are saying in the numerous other EU consultations on patents and copyright. Who knows repetition may work wonders!

A copy of the consultation can be found here:
(deadline for responses June 15)

http://europa.eu.int/comm/internal_market/strategy/docs/consultation_en.pdf

New attempt to establish EU Software patents

2006-04-21T09:32:00.000-07:00

The EU Commission recently held a consultation on the Patent system in Europe.
http://europa.eu.int/comm/internal_market/indprop/patent/
It covered a number of issues. One of great concern to all those activists who had successfully campaigned against the introduction of software patents, was the Commissions proposal to introduce a Community patent system ( one patent for the whole of Europe). They feared that this could be a backdoor method to introduce software patents. So the activists once again marshalled thier resources to respond to the consultation.

But the fights not over yet. I have recently been told by Florian Mueller ( one of the lead lobbyists against software patenting) that there is another backdoor method being pursued by pro software patenting companies. That is using the European Patent Litigation Agreement (EPLA).

You can read the background on it here:

ahttp://www.no-lobbyists-as-such.com/florian-mueller-blog/epla

Cptech also submitted comments to the Commissions patent consultation.
While we oppose software patents, we sought in our response to also focus on wider principles of patent policy that apply to all areas of the economy eg the development of medicines.

A copy of our response can be found here:
http://www.cptech.org/a2k/cptechECPatconsultation-12april06.pdf

EU Copyright Directive review:Bernt Hugenholtz to lead

2006-03-21T06:10:00.000-08:00

www.downontheriver.blogspot.com
Michelle Childs
Brussels 21 March 2006

I am at the TACD conference on the politics and ideology of intellectual property http://www.tacd.org/docs/?id=286

There have been a number of lively and thought provoking sessions. See below for a blog on each of the sessions. There will also be an official report on the TACD website after the event.

We have just heard from Leonardo Cervera Nava (LCN) an Administrator in the Copyright and Knowledge- based Economy section of DG Internal Market.

He gave a helpful overview of the Commissions approach to access to knowledge. A number of interesting points came out of this. First in relation to the Commission's review of the Copyright Directive, due this year. Originally it was to be a review only of implementation, but now it will be an evaluation review of the Directive i.e an evaluation of whether or not has it achieved its policy objectives. This is an important change. The most recent evaluation report from DG Internal Market, on the Database Directive, was the first evaluation of an IP right based on evidence rather than rhetoric. It found that granting increased rights to database owners had not achieved its policy aims of increasing EU competitiveness against the US, in fact the reverse.

LCN confirmed that they would adopt the same approach to the evaluation of the Copyright Directive. Initial signs are encouraging, as the terms of the tender for the initial evaluation are broad: the study must include a review of the contribution of copyright to knowledge economy, the role of consumers, the way Member States have transposed exceptions and limitations in the Directive into national legislation ( an increasingly controversial issue as the current disputes in France over their implementation of the Copyright Directive show .) It will also look at technical protecion measures (TPMs) and generally any difficulties that arise for right holders, commercial users, consumers ,scientific and academic users and libraries

The initial evaluation will be undertaken by Professor Bernt Hugenholtz , a well known expert in this area, who has written extensively on the Directive, including some of the problems with it.

LCN also discussed two other Commission initiatives. First the proposal to review the Term Directive , in the face of industry pressure to extend the term of copyright protection. DG Internal Market will provide an impact assessment at the end of the year.

Second in relation to the proposal to create a European Digital Library . This is being taken forward by another DG, DG Info Soc, who have recently completed a public consultation. The primrary purpose of this proposal, is cultural, to fight rise of the ' Americanization' of EU culture. In reality a response to Google's plans in this area. While its a cultural project, its clear that concerns over copyright are increasingly dominating the debate.

DG Int Market is 'advising' DG InfoSoc. What are they saying? In short, only move ahead with the the copyright right holders agreement, and that there are no real problems with the law.

There are three main concerns that DG InfoSoc is looking at:

-On line access- How can EU citizens be given access to their culture on line? DG Int Mart recommends that if the material is subject to copyright, this material should only be used with the consent of copyright owners. No apparent mention of the use of exceptions in the law.

-What content should be digitized?- DG Mart encourages the focus to be on public domain materials.

- How can material be preserved and stored?. One of the issues is the use of TPMs. DG Mrkt considers that current legislation allows for sufficient flexibility to allow institutions to preserve such artifacts. Most library groups are concerned that it may not.

The significance of the copyright issues is shown by the fact that first meeting of the High Level group on digital libraries set up by DG Info Commissioner Reding, due to take place next week, is entirely devoted to copyright issues

It is to be hoped that the evaluation of the Copyright Directive will also look at this issue too.

The final comments where on the proposed Broadcasting and Web casting Treaty being discussed at WIPO. LCN caveatted his comments, that he is not the person responsible for this issue within DG Int Mrkt. He did confirm however that the Commission has carried out an assessment of the proposal ( though this has not been made public)which has been discussed with Member States . It is a very controversial issue. The EU's original position was to be against web casting, but they are under strong pressure from WIPO to reach agreement on this Treaty. The key block for the EU is the need to try and find an agreement that would be acceptable to the US. For the US web casting is a deal breaker for the Treaty.

Read On:

Blog on the TACD conference:

https://www.fsfe.org/en/fellows/gerloff/blog

Details on Professor Bernt HugenholtzPo

http://www.ivir.nl/staff/hugenholtz.html

DG Internal Market page on the Database Directive evaluation.

http://europa.eu.int/comm/internal_market/copyright/prot-databases/prot-databases_en.htm

DG Information Society page on the Digital Libraries Project:

http://europa.eu.int/information_society/activities/digital_libraries/background/index_en.htm

Cptech page on the Braodcasting and web casting Treaty:

http://cptech.org/ip/wipo/bt/index.html

EU Preparations for possible Bird Flu Pandemic (2)

2006-03-15T06:05:00.000-08:00

We are currently in correspondence with the EU Commission to find out whether they can issue a compulsory license to generic drug manufacturers to make generic versions of oseltamivir ( brand name Tamiflu,) in the face of predicted shortfalls in the recommended stockpiles in some Member States. ( see previous post)

The European Generic Medicines Association ( a trade body for generic manufacturers) have also written to the Commission asking whether other legal rules, granting further protection to patent owners over test data would be waived, in order to allow them to make the drugs quickly. The answer? No, not even in an emergency.

A copy of the letter is here:. http://www.cptech.org/IP/health/dataexcl/ec-de-tamiflu.pdf.

This view will have important consequences not only for generic Tamiflu manufacturers but also for any European country that issues a compulsory license for any drug, including high priced cancer or AIDS drugs, which might be available for import from a domestic or foreign generic supplier. It essentially means that compulsory licenses become a nearly worthless tool in Europe for a decade on any new drug.

Why? As a condition of selling drugs, the EU ( and Member States) require pharmaceutical sellers to submit information, ' registration data', showing their drugs are safe and effective e.g clinical trials and other studies. To gain regulatory approval to sell generic versions of drugs, generic companies generally do not repeat these studies, which are costly and time consuming. Instead, they rely on the registration data submitted by the original applicant ( the patent owner) to establish the bio equivalence (meaning it will work the same way in the body as the brand-name drug) of their generic follow-on.

However EU law grants the patent owner a period of exclusivity for this data . The rules are quite complex but in essence, these "data exclusivity rights" mean that the regulatory authority can't use the patent holders data for 8 years to approve a generic drug, and the generic company must wait another two years before it can actually market the product. In other words, a generic manufacturer can't place its drug on the market for 10 years from the date of the original approval, unless the patent owner agrees they can use the data.

If the generic manufacturers are not able to rely on this data, in many cases they simply will not enter the market, as the only option would be to repeat the testing. In a health emergency it would not make sense to do so, for time reasons alone, as clinical trials ordinarily take 6-8 years to complete.

Thus, the result of these rules is that generic manufacturers will effectively be barred from entering the market, even if the Commission or Member States have issued compulsory licenses ( which lifts patent protection) for 10 years , until the monopolies on data and marketing end.

The Commission has confirmed in its letter that these rules would not be lifted even in an emergency. Nor would it be lifted if there was abusive behavior by the patent owner like excessive pricing.

So what does this mean for the stockpiling of Tamiflu? If the Commission decided to issue a compulsory license, for example because Roche could not make an adequate supply of Tamiflu , a generic manufacturer would not be able to rely on Roche' s registration data and would be unable to market the drug until the 10 year period had ended. Unless of course, Roche agreed. If Roche does not agree, or seeks to delay giving approval, the Commission does not have the power to override these exclusive rights.

So, under current rules, the Commission appears happy to hand decisions on, and control of, the production of alternative supplies of oseltamivir to the existing monopoly supplier, who can't meet demand and who has little incentive to allow competitors to produce such alternatives.

Such is the state of emergency health planning in the EU today.

Read on:
explanation of the EU's Data Exclusivity Rules
: http://www.annamckay.com/article10.html

The European Generic Medicines Association
http://www.egagenerics.com/

Is Europe Doing everything it can to prepare for a potential Bird Flu Pandemic?

2006-03-09T04:06:00.000-08:00

At the moment Europe is on the alert as the H5N1 virus has been found in birds in a number of countries. While its the responsibility of each Member State to protect their citizens, and we are seeing a flurry of national preparedness plans, the European Commission, lead by Commissioner Kyprianou (who has responsibility for Public Health ) is seeking to co ordinate an EU wide response.

Commissioner Kyprianou.

Much of the focus, rightly, now, is on seeking to control the spread of that nasty virus H5N1 between birds. But what about protecting people? Again the Commission is seeking to coordinate . We have been asking them about their approach to stockpiling drugs and their answers are not reassuring.

If a pandemic hits, it will likely take several months before an effective vaccine can be made available. In the meantime, the first line of defence against avian flu will be antiviral drugs. Despite its known shortcomings, oseltamivir, sold by Roche under the brand name of Tamiflu, is the best drug we have, for now. The World Health Organization (WHO) has recommended that countries which can afford to do so should stockpile appropriate antivirals sufficient for 20 percent of their population or more. With demand for Tamiflu exploding round the world Roche, as the single manufacturer can’t meet demand, so there is pressure on them to issue licenses to generic manufacturers to make more.

So how is Europe doing? The good news is they have a plan and regular co ordination meetings. The bad is that on stockpiling they have some problems. First, few EU Member States now have sufficient stockpiles of antiviral medicines, according to the WHO. Second, those who have placed orders have yet to have them completely fulfilled. Third, the limited voluntary licensing by Roche, of the patents needed for generic production of Tamiflu, has not overcome the current supply constraints, more is needed. Fourth, the prices for stockpile products are very high, given the recommended stockpile sizes and the limited incomes of some EU Member States. Fifth, there are now new patent applications on some new processes for manufacturing Tamiflu and other antiviral medicines. Roche is increasing its production capacity, but cannot meet EU needs for several years. If the medical threat of a pandemic is real, it is the responsibility of the EU and its Member State to find alternate sources of supply for antiviral drugs.

You’d think in these circumstances the EU would do all in it power to ensure access to more supplies. You would be wrong.

One way could have been to import generic copies from countries outside the EU under a compulsory licence. India, Korea, Taiwan and Thailand have or are in the in the process of producing copies of the drug. The patent holder would still get payment . But the EU has rejected this approach. This is because of a little known provision in a 2003 WTO agreement on patents and medicine. The EU elected to "opt-out" of the WTO provisions that would have allowed foreign countries to export generic medicines to the EU Member States, when there is a compulsory license on a patent. The EU could have decided to maintain the flexibility to import if it wanted to, or to limit its imports to cases of national emergency. Instead it picked the most extreme option, which was to never import, even in a case of a national emergency .

The big drug companies want the opt-out enforced in order to limit the size of the generic market, reduce incentives for generic entry, limit economies of scale, and stigmatize compulsory licensing. But the opt-out has put the EU and other countries at risk, because it limits the potential sources for building adequate generic stockpiles of medicines .

Commissioner Mandelson

We wrote to Commissioner Mandelson( who leads on the WTO rules) and Commissioner Kyrianou, asking them to reconsider this decision. This is the letter we sent to EU about the WTO issue http://www.cptech.org/ip/health/tamiflu/cptech-mandelson10192005.html

This is their reply http://www.cptech.org/ip/health/tamiflu/eu12052005.pdf.

Basically they said that they wouldn’t reconsider and that they didn’t need to use the opt out as 1) EU has sufficient manufacturing capacity so would never have to rely on non EU countries to manufacture. 2) They could use other World Trade rules to issue a compulsory licence within the EU , and that this would allow drugs to made by generic manufacturers in one Member States and exported to Member States who couldn’t make it themselves.

Analysis by CPTech shows that this approach is flawed and raises a number of questions. So we have written again to the Commission asking them to clarify their position in particular in relation to these issues:

· There is the possibility that firms using compulsory licences in one EU Member State would not produce enough drugs to meet the needs of a Member State, which has no manufacturing capacity- rules mean that only a limited amount can be exported.

· Competition Law could be used to issue a compulsory licence that has no such export restrictions, but this has never been done before and would generally require a lengthy investigation. When faced with an imminent threat or the need to urgently build stockpiles, it may be impractical to wait. Its Commission will use this approach and if so how they would overcome the delay problems.

· The Commission claims that if a compulsory license is issued for government use, or to protect public health, drugs can be freely exported and imported within the EU. However under EU case law this doesn’t appear to be true. Patent owners can block the export to other countries. The letter asks the Commission to comment on this inconsistency.

A copy of our letter can be found here:
http://www.cptech.org/ip/health/tamiflu/cptech03082006.doc

As we say in the letter our concerns are not academic; and go to the heart of the Commission’s ability to respond to public health problems in a timely and appropriate manner. Concerns about patent protection cannot be allowed to override public health needs.

Read On:
CPTech page on Tamiflu: Contains correspondence with US and EU officials on this issue, plus relevant press releases and updates:
http://www.cptech.org/ip/health/tamiflu/index.html

The World Health Organisation's fact sheet on Avian Influenza: http://www.who.int/mediacentre/factsheets/avian_influenza/en/index.html

DG Sanco Page on Influenza and Public health
http://europa.eu.int/comm/health/ph_threats/com/Influenza/influenza_en.htm

BBC Page- Good Q& A on Avian Flu also sets out the stockpile plans( where known) of EU countries and others.
http://news.bbc.co.uk/1/hi/health/4380014.stm#pdf

Update- DRM in the UK

2006-02-08T05:58:00.000-08:00

Last week the Commitee held a public hearing where a number of UK Digital rights groups and Libraries and academics gave evidence. The message was the same- DRM's are endangering consumer protections, competition and access to knowledge. As the representatives from the British Library said :

'"Once DRM becomes technologically obsolete, access to the material is lost," warned Dr Clive Field of the British Library. His colleague, Sean Martin, told the MPs that he had encountered a DRM system with a three-year lifespan. "After three years, no-one would be able to access that material," said Martin.

There are good reports of the evidence and links to the submissions behind them here:
'DRM is failing, MPs told' http://news.zdnet.co.uk/business/legal/0,39020651,39250168,00.htm

Parliament committee hears DRM rights and wrongs
http://www.theregister.co.uk/2006/02/02/apig_hears_evidence/

A variety of solutions were proposed and the Commitee is considering both the oral and written responses. The group will produce a final report, and publish the evidence, in April. The Commitee has a chance to to take a stand on this issue- lets hope they take it.

Digital Rights Management in the UK

2006-01-18T05:19:00.000-08:00

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 http://www.apig.org.uk/current-activities/inquiry-into-digital-rights-management.html

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

Introduction

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.

A NEW APPROACH

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

Footnotes

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 www.cptech.org.. We are also a member of the Transatlantic Consumer Dialogue (http://www.tacd.org)and/ 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

[2] http://www.ncc.org.uk/intellectualproperty/ec-copyright.pdf

[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/

5," http://www.cptech.org/ip/wipo/wipo04132005.doc)

[6] [6] (See http://www.eff.org/IP/WIPO/?f=20041117_open_letter.html

[7] (See: http://www.cptech.org/ip/wipo/bt/bt-signon.html, http://news.ft.com/cms/s/441306be-2eb6-11da-9aed-00000e2511c8.html, and rights holders (see http://www.cptech.org/ip/wipo/bt/rightholder-quotes.html[

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

Introduction

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.’

Recommendations

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.

Footnotes

[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’. (http://www.indicare.org/.) 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