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Berkman Study Reviewed


Margreet Groenenboom, project researcher at the Institute for Information Law, University of Amsterdam, has reviewed our September 2004 EUCD paper in the recent edition of the INDICARE Monitor. Margreet has done a great job, and I appreciate her comments on the paper. I have two quick thoughts:

1) Obviously, there’s much to say (and much more than we did in the paper) about the private copying exceptions vis-�-vis technological protection measures in general and against the backdrop of recent legislative as well as judicial developments in particular. The observation offered in the paper, in essence, was that “old” EU member states have not made broad use of the possibility to take measures ensuring that the private copying exception will survive technological protection measures. Reading this section, Groenenboom argues: “Against this opinion, one could argue that although there may not exist a right that consumers can enforce as consumer in court, this does not mean that the private copying exception ceases to exist.” I’m not sure what this dissent suggests. Does it mean that our observation was not correct, i.e., that we’re wrong by concluding that incumbent member states have not made broad use of the possibility to ensure that private copying exceptions “trump” TPM? Or does it suggest (and this is my reading) that “rights” may exist even if “rights” are not enforceable in courts? If the latter is the case, I agree to the extent that such exceptions (whether to be qualified as rights, privileges, or something else) continue to exist on the books. But: First, it is our argument that legislators have been rather reluctant to apply these exceptions to digital content protected by TPM. Second, and viewed from a broader angle, even if such exceptions may in theory apply to such content, it is a lengthy (and not fruitful, as I find) discussion of what the nature and value of exceptions are if they were not enforceable in courts. From a user’s perspective, the answer seems clear to me.

2) Margreet correctly points out that we haven’t provided a detailed explanation of the selection criteria for the countries we analyzed. The selection certainly didn’t follow a systematic set of criteria. Rather — as noted in the paper and mentioned in the review — we simply wanted to present a representative selection of interesting implementation models and approaches taken by EU member states. Viewed from that angle, each section in part III can be read, in methodological terms, as an exploratory case study (as a practical matter, we first reviewed all the available implementations and then discussed what we found interesting, i.e. where we identified divergence and/or convergence.)
I also agree with Margreet that it would be helpful to have “an overall schedule of which countries use a narrow approach, and which countries use a broad approach, or to make any profound aggregation at all.” In that sense, we’re very much looking forward to such a comprehensive analysis by our European colleagues. In my opinion, such a comprehensive study can only be conducted in a collaborative effort (ALAI-kind survey) – also (but not only) due to language barriers and lack of general/easy-to-access availability of most recent pieces of legislation in several EU member states.

Again, thanks to Margreet Groenenboom for a thoughtful review.

On a different score: Comments on new implementations are much appreciated. Please email me that we can update this site.

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