Wednesday, September 13, 2006

Morning session final day WIPO 13th September 06

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!

Thursday, July 20, 2006

EU Consultation due on Net Neutrality , DRMs Interoperability etc

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

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:

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

Wednesday, July 05, 2006

Finnish EU Presidency- New Innovation Policy a priority

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:

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:

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:

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:

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 ( 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.

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.

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 :

Monday, June 26, 2006

Notes of WIPO Barcelona Seminar


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:

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 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 (!).

Tuesday, June 06, 2006

UK MP's report & recommendations on DRMs

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:

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.

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):

Read on:

Press Coverage:
The Register:

The BBC:
UK digital rights group: Open Rights Group : :

Friday, April 21, 2006

EU IP consultation ( yes another one)

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'


'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)

New attempt to establish EU Software patents

The EU Commission recently held a consultation on the Patent system in Europe.
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:


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:

Tuesday, March 21, 2006

EU Copyright Directive review:Bernt Hugenholtz to lead
Michelle Childs
Brussels 21 March 2006

I am at the TACD conference on the politics and ideology of intellectual property

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:

Details on Professor Bernt HugenholtzPo

DG Internal Market page on the Database Directive evaluation.

DG Information Society page on the Digital Libraries Project:

Cptech page on the Braodcasting and web casting Treaty: