Libraries and Archives Copyright Alliance
CILIP 7 Ridgmount Street London WC1E 7AE
Chair, All Party Internet Group
c/o APIG Secretariat
23 Palace Street
London SW1E 5HW
By e-mail to firstname.lastname@example.org
20th December 2005
Dear Mr Wyatt
APIG Public Inquiry into Digital Rights Management Systems
This response is sent on behalf of LACA: the Libraries and Archives Copyright Alliance, which monitors and lobbies in the UK and Europe about copyright and related rights on behalf of its member organisations and all users of copyright works through library, archive and information services. LACA is convened and supported by CILIP: the Chartered Institute of Library and Information Professionals. A list of LACA member organisations appears at the foot of this page.
DRMS work to control access and use of content. They can control whether the content may be copied including the number of copies that may be printed, the length of time for which the content may be accessed and whether or not it may be cut and pasted. They also control whether the work may be loaned, and for how long, and even whether the work (e.g. portable standalone formats such as e-books, CDs or DVDs) can be loaned, re-sold or given to another user or run on different platforms.
LACA welcomes this consultation, as we have grave concerns about the potential use of DRMS by rightholders to override existing copyright exceptions, and other legislation regarding disability discrimination and human rights. We are also very concerned that DRMS are increasing and entrenching monopolies. The term 'DRMS' has become the information content and music industries' preferred euphemism for a range of TPMs or access-blocking systems. As originally promoted, DRMS were systems that would control access in accordance with the licence terms for the digital product. This included recording use and sending information (both of which may also have data protection implications for the user) or payments to rightholders or their representatives. The Information Society Directive (2001/29/EC) distinguishes between 'technological measures' and 'rights management information'. However, it is clear that DRMS, as discussed nowadays, include what the Directive calls 'technological measures…designed to prevent or restrict acts…not authorised by the rightholder'.
This submission is made in the light of information gained from an intensive programme of consultations on copyright issues carried out over a number of years by LACA with its member organisation constituency of librarians, information managers, knowledge managers, records managers and archivists, whose work is central to the knowledge economy, e-commerce, and e-learning. It is clear from these that there are widespread concerns in the library, archive and information community about the potentially harmful effects of DRMS and our view below is in line with statements concerning DRMS made by LACA and EBLIDA (European Bureau of Library, Information and Documentation Associations) in June 2004 to the European Commission’s consultation on the Collective Management of Copyright.
LACA is responding only on those issues which we feel are of major importance, for which we have a mandate and the necessary knowledge to respond.
1.0 Whether DRM distorts traditional tradeoffs in copyright law.
1.1. All users of digital material for educational, non-profit research and private study purposes, and print disabled people, are disadvantaged by the prohibition of the circumvention of DRMS introduced into the UK’s Copyright Designs and Patents Act 1988 (CDPA) by Article 6 of the Information Society Directive. This disadvantage will worsen as the use of digital media increases.
1.1.1 The WIPO Copyright Treaty 1996 provides that users of digital works continue to have statutory rights of access to information in the same way as users of analogue works. These rights are known as ‘exceptions and limitations’ to copyright. However DRMS/TPMs are able to remove those rights since digital products are accessible by licence. Since a licence is a contract, it may override copyright exceptions and limitations, yet most licences for digital products are non-negotiable and libraries as organisations do not have consumer protections. Furthermore out-of-copyright content, which is already in the public domain in analogue formats, can become locked up by DRMS when it is digitised by commercial companies.
1.1.2 We believe that its wrong to make what is currently lawful, unlawful by means of wholly protected DRMS. A user should have the access permitted by the exceptions and limitations without having to struggle through complex and expensive procedures to obtain permission.
1.2 UK law, The European Term Directive and international treaties specify time limits applying to the protection of copyright and related rights. The effect of DRMS, if conditions are not applied to these measures, is to make copyright perpetual, which goes against the long-standing principles of all existing intellectual property laws. By the time copyright expires the rightholder company may have gone out of business or merged one or more times with other companies. The ownership of the rights may be impossible to trace rendering the product orphaned. It is probable that no key would still exist to unlock the DRMS. For libraries this is serious. As custodians of human memory, a number would keep digital works in perpetuity and may need to be able to transfer them to other formats in order to preserve them and make the content fully accessible and usable once out of copyright.
1.2.1 We recommend that the law is changed to require DRMS to cease to be effective upon expiry of the copyright, and/or that the expiry of the copyright term be a defence against circumvention of DRMS.
1.3 DRMS have the potential to contravene disability discrimination law, in that they prevent legitimate copying for the production of accessible copies for ‘print disabled’ people and the deployment of ‘read aloud’ software to aid the visually impaired. Visually impaired people have additional statutory rights allowing them to have works converted into accessible formats in a timely manner, yet these rights can be adversely affected by DRMS, leaving them without access to that material.
1.3.1 We recommend that the circumvention of DRMS be permitted for the legitimate production of accessible copies, and to permit the operation of ‘read aloud’ facilities for print disabled people, and to support those with other disabilities.
1.4 Furthermore, DRMS can potentially prevent legitimate copying for all users, whether with disabilities or not, under the statutory fair dealing provisions and under library and archive privilege . For example a DRM interfering with fair dealing uses may prevent a user from printing out a journal article or extracts from other digital works under fair dealing for research or private study , extracting digital excerpts from it in order to quote under the exception for fair dealing for criticism and review or for the reporting of current affairs , or for the conduct of judicial or parliamentary proceedings or Royal Commission and other statutory inquiries.
1.4.1 We recommend that an exception to copyright be provided for librarians and archivists to be allowed to circumvent DRMS as trusted intermediaries in order to make copies which are permitted under existing copyright law. That libraries can be regarded as trusted intermediaries by rightholders is evidenced by our constant insistence in our lobbying on a fair balance in copyright for all members of the information chain - both users and rightholders - and our role in managing copyright within institutions.
1.5 Article 6(4) of the Information Society Directive recognises that there must be safeguards to protect certain fair use and fair dealing provisions relating to copyright works. It specifically makes provision “in the absence of voluntary measures taken by rightholders, including agreements between rightholders and other parties concerned” for Member States to “take appropriate measures to ensure that rightholders make available to the beneficiary of an exception or limitation provided for in national law”. The way this provision was implemented in UK law allows the Secretary of State to intervene where a claim is made that a rights protection mechanism prevents a permitted act.
1.5.1 Regrettably the protections offered by the UK’s implementation of the provisions of Article 6(4) are seriously deficient. Article 6(4) is of great significance to users of copyrighted works, and it provides the only safeguard where voluntary agreements cannot be reached. However, in our view CDPA s.296ZE fails to implement Article 6.4 of the Directive in a manner meaningful to the users it is intended to assist. The process to be followed serves to chill complaints since it is both vague, likely to be time consuming and likely to be expensive to the complainant.. The user’s need to access works in a timely fashion will not be met. Two years since its introduction, The Patent Office has not introduced any procedures for implementing s.296ZE.
1.5.2 We believe that it is unacceptable that these provisions for complaint by users to the state can be overridden by the licensing terms imposed by the rightholder, (as provided for by the Information Society Directive Article 6(4) para. 4, Article 9 and Recital 53).
1.5.3 We recommend that the UK should seek changes in the Information Society Directive to ensure that permitted acts cannot be prevented by rightholder licences and TPMs or DRMS.
1.5.4 We recommend that the UK should lobby for the protection of exceptions and limitations to copyright law relevant to all Member States of the EU. Specifically, that once an aggrieved party who is unable to carry out a permitted act because an abusive protection mechanism prevents it, the rightholder should be unable to enforce their copyright within the EU for so long as the abuse continues.
1.5.5 We also recommend that if a rightholder refuses to lower the barrier when ordered to do so by the Secretary of State under CDPA s. 296ZE, where a rights mechanism prevents a permitted act, that should become a criminal offence prosecuted by the State (rather than putting the costly onus on the librarian or user to have to sue the rightholder to seek enforcement of the Order under civil law).
1.6 We would like to draw your attention to the US system of regular consultation and regulation outlined below which seeks to ensure to a limited extent that DRMS and TPMs do not prevent copying under the US’ ‘fair use’ exceptions to copyright.
1.6.1 The Digital Millennium Copyright Act (DMCA), Pub. L.105-304 (1998), amended title 17 of the United States Code to add a new Chapter 12 to include the prohibition of the circumvention of access control technologies employed by rightholders to protect their works. Specifically, subsection 1201(a)(1)(A) provides that "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."
1.6.2 Subparagraph (B) limits this prohibition by providing that prohibition against circumvention "shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title" as determined by the Librarian of Congress’ rulemaking.
1.6.3 Since 28 October 2000, the date on which the prohibition on circumvention became effective, following extensive rulemaking proceedings, the Librarian of Congress, who is responsible for the US Copyright Office, has made two determinations (in force for three-year renewable periods) upon the recommendation of the Register of Copyrights, exempting classes of works from the prohibition against circumvention of TPMs. The second ruling created four classes of exempted works, including one concerning e-books with DRMS which prevented the enabling of the e-book's read-aloud function and of screen readers to render the text into a specialised format. The current consultation in progress is the third s.1201 rulemaking required under 17 U.S.C. 1201(a)(1)(C).
1.6.4 In our view it would be sensible if regular government reviews of DRMS/TPMS were established in the UK with a view to determining exceptions to the prohibition against circumvention in order to enable the enforcement of the UK’s statutory exceptions and limitations to copyright and we recommend such a course of action. This could be achieved through deployment of The Patent Office and the Copyright Tribunal. A proactive approach on these issues from government such as this, is preferable to the rather passive and negative approach implementing Information Society Directive Article 6(4) taken by CDPA s.296ZE (see para 1.4 above).
1.7 Copyright law and rights in other laws are increasingly being circumvented by the creation of specific contracts and licences. Copyright Law does provide limited protection for the needs and interests of the users, whereas contracts would almost entirely represent the superior strength of the rights holders.
1.7.1 We recommend amending the legislation so that whenever a rights-management mechanism is used to prevent the enjoyment of a copyright exception, or other right, granted by Parliament (i.e. under copyright law, competition law, consumer law or human rights law), or to extend or entrench a monopoly, or to override the Treaty of Rome, then that mechanism must lose the legal protection against circumvention.
1.7.2 Additionally we recommend that, as is already the case in Belgium and Ireland, UK law should be amended to provide that licences and contracts may not override the statutory exceptions and limitations in copyright law (as is already the case in the UK with regard to sui generis right in original databases).
2.0 Whether new types of content sharing licence (such as Creative Commons or Copyleft) need legislation changes to be effective.
2.1 We can see no need for legislative changes necessary to make content sharing licences effective.
3.0 How copyright deposit libraries should deal with DRM issues.
3.1 Legal deposit libraries need to be able to provide continuing access to materials, as part of the national record, within the framework of copyright exceptions, after copyright has expired and after relevant proprietary DRM systems have fallen into disuse. The ability to override such mechanisms is therefore a necessity.
3.1.1 The technical knowledge required to accomplish this is likely to be most readily available at the point of receipt rather than at the point of eventual need, and legal deposit libraries should be empowered to take such steps as an initial conservation measure when such materials are received or at any point thereafter. To this end, depositors should be obliged to provide to the legal deposit libraries the necessary keys for unlocking any DRM mechanisms they are using. Similar provisions have been made in the agreement concerning circumvention of DRMS/TPMs between the Deutsche Bibliothek and publishers concluded in January 2005.
4.0 How consumers should be protected when DRM systems are discontinued.
4.1 We offer no response to this question, since we do not see any need to protect consumers under such circumstances.
5.0 To what extent DRM systems should be forced to make exceptions for the partially sighted and people with other disabilities.
5.1 The answer to this is covered at 1.1 to 1.4 above.
6.0 What legal protections DRM systems should have from those who wish to circumvent them?
6.1 DRMS already have complete legal protection from circumvention, even to the extent of rendering statutory concessions useless to consumers. It is not the DRMS that need legal protection against circumvention. Rather, the point is that current legal provisions need protection from being rendered void by DRMS, i.e. technological devices in the control of rightholders, who are thereby enabled to extend their monopoly beyond the limits otherwise provided by law.
6.2 On this question, as stated above, the UK's solution to the supposed safeguards of Information Society Directive Article 6 (4) is singularly unhelpful to the beneficiaries of exceptions. A beneficiary of an exception is often an individual, who should not be required to invoke complicated legal or administrative procedures in order to enjoy the exception.
7.0 Whether DRM systems can have unintended consequences on computer functionality.
7.1 The recent Sony rootkit case is a particularly striking example of DRMS adversely affecting and compromising the functionality of computers. According to press reports , Sony BMG's XCP anti-piracy program uses virus-like techniques to hide itself as spyware on computers and on networks, which sent personal data to Sony to which it was not entitled. This caused great concern among users. It was only as a result of bad publicity and recommendations to consumers to boycott Sony CDs which led Sony to belatedly produce a patch. This patch removed the spyware but then rendered the computers and networks vulnerable to malicious attack enabling hijacking of programs to gain control of computers and networks. The new program issued by Sony BMG on 8 December claims to close the hole in the patch but Sony is now subject to a number of lawsuits.
7.2 It is clear from the Sony case that DRMS pose potentially serious security and functionality issues. Therefore we recommend that the law should make it explicit that anyone who supplies and/or produces a DRM should be liable for any problems caused by the DRM under the Computer Misuse Act, and that this should be an absolute offence, i.e., the Computer Misuse Act will be applied against such a supplier or producer even if he could not have foreseen that a breach of the Act would result.
8.0 The role of the UK Parliament in influencing the global agenda for this type of technical issue.
8.1 UK law must comply with EU Directives, and international treaties. There are particular dangers that DRMS can be used to increase and entrench monopolies, so we believe that the UK Parliament must carefully scrutinise the implementation of significant EU Directives and international treaties into UK law. Too much, including the Information Society Directive (Europe’s most lobbied and most controversial to date) has been implemented through secondary legislation without debate. Parliamentarians can also actively lobby within their parties, in Europe and with other countries to prevent unhealthy monopolies and the erosion of existing exceptions and limitations to copyright.
8.2 It is important that international treaties, EU Directives and UK legislation are implemented in the UK in a way which gives the public interest primary consideration. Such principles lie at the heart of the Adelphi Charter launched by the Royal Society of Arts in October, which calls upon governments, when making decisions about intellectual property law, to adhere to these rules:
· “There must be an automatic presumption against creating new areas of intellectual property protection, extending existing privileges or extending the duration of rights. · The burden of proof in such cases must lie on the advocates of change. · Change must be allowed only if a rigorous analysis clearly demonstrates that it will promote people's basic rights and economic well-being. · Throughout, there should be wide public consultation and a comprehensive, objective and transparent assessment of public benefits and detriments.”
LACA is happy to answer any questions that APIG may have on the above submission.
Senior Adviser, Copyright at CILIP and Secretary to LACA