Law and Information

The Local reports that the Swedish minister of justice has urged record companies to remove copy-protection technologies from CDs – especially in order to enable private copying. According to the same source, the minister even considers a ban of copy controls on CDs. (via BNA’s Internet Law News)

I reported here and here that a Paris District Court ruled in UFC v.Films Alain Sadre et al that a copy protection system on a DVD does not conflict with provisions of the French Intellectual Property Code, which limit copyright owners’ rights regarding reproductions made strictly for the copier’s private use. UFC, a consumer rights association, claimed it received complaints from consumers about DVD copy protections that prevent purchasers from making copies for private use. The court confirmed that such technical protection measures comply with the EU-Copyright Directive (EUCD), though the EUCD is not yet transposed into French law.

Some days ago, however, a Paris Appellate Court reversed the ruling. I haven’t had a chance to analyze the decision, but it reportedly requires film producers Alain Sarde and Studio Canal to remove copy controls on their DVDs in order to enable the beneficiaries of the private copying exception as set forth by French law to exercise their rights.

Further, the Court criticized that the DVD producers did not provide sufficient consumer information as far as copy restriction is concerned. The label “CP” for “copy protected” was printed on the jacket, but in small characters and not sufficiently explicit.

See news report in French, and English translation.

It will be interesting to analyze the ruling in detail and to think about its compliance with EU law vis-�-vis Article 6 of the EUCD (see here.)

Update: The decision (in French) is published here.

I’m catching up (terribly delayed) with a couple of interesting articles, research papers, and news reports. Here’s a selection of today’s recommended readings:

* M. Davison and B. Hugentholtz’s piece “Football fixtures, horseraces and spinoffs: the ECJ domesticates the database right”

* Natalie Helberger’s Indicare article “Thou shalt not mislead thy customer! The pitfalls of labelling and transparency”

* Mark N. Cooper, TIME FOR THE RECORDING INDUSTRY TO FACE THE MUSIC: THE POLITICAL, SOCIAL AND ECONOMIC BENEFITS OF PEER-TO-PEER COMMUNICATIONS NETWORKS

* Recent Pew report on Music and Video Downloading

* News.com report on Bertelsmann’s new P2P service

* Heise on “Google News: how far does freedom of speech go?”

* I almost forgot this one: Heise on the German Green Party talking about side effects of search engines

Happy Easter.

The European Court of Justice (ECJ) recently ruled that consumers canceling a rental car previously booked via Internet are not entitled to obtain a refund.

Here’s some background. The EU Distance Selling Directive, pro memoria: applicable to any contract for goods or services involving an EU consumer, regardless of whether the supplier has a physical or virtual presence in the EU, grants consumers a right of withdrawal from any distance contract — a right that cannot be waived by contract. Article 6(1) of the Directive states that consumers have at least seven business days to withdraw from the contract without penalty and without giving any reason. However, the Directive contains an exemption for, inter alia, “contracts for the provision of transport services.”

In the present case, the UK’s Office of Fair Trading brought proceedings before the High Court of Justice against UK online rent-a-car company easyCar. The terms and conditions of the easyCar’s hire contract state that consumers cannot obtain a refund if the contract is cancelled, except in unusual and unforeseeable situations (such as serious illness, war, natural disasters, etc.) The High Court asked the ECJ whether car hire services are “transport services” for the purpose of the exemption contained in the Directive.

According to the ECJ, the Directive’s “transport services” exemption sets forth a sectoral exemption which relates generally to services in the transport sector, i.e. can cover all contracts in this field, since the term “transport” refers not only to the action of moving persons or goods, but also includes making the means of transport available to consumers.
Focusing on the legislative context in which the term is used, the ECJ further held that the European legislator intended to protect consumer interests, but also to protect those of suppliers of certain services to avoid disproportionate consequences arising from the right to withdrawal. Since rental car companies must make arrangements for performance of the agreed service on the date fixed at the time of booking, the ECJ held that rental car companies suffer the same consequences in the event of cancellation as any other supplier of transport services.
Therefore, the ECJ concluded that “’transport services’ includes contracts for the provision of car hire services, so that such contracts cannot be cancelled by consumers without penalty.”

Our colleagues at the Institute for Information Law (IViR) at the University of Amsterdam released, as part of the INDICARE project, an interesting report on Digital Rights Management and Consumer Acceptability. It seeks to provide an overview of the state of the (European) discussion from a multi-disciplinary perspective, and analyzes social, legal, technical, and economic issues.

The report concludes that surprisingly little is know about consumers’ acceptance level of DRM, and what users’ expectations are regarding the use of digital content. The report, inter alia, calls for a better involvement of the consumer side and a joint dialogue between the market players.

The report will be updated. Three pointers to Berkman reports and papers in this context:

* re section 6.5 of the report on alternative business models, see also “Content and Control: Assessing the Impact of Policy Choices on Potential Online Business Modles in the Music and Film Industries.”

* re section 4.2 on the EU-Copyright Directive, see also “Transposing the Copyright Directive: Legal Protection of Technological Measures in EU-Member States,” and the respective Berkman project website.

* re section 4.4 on interoperability, see John Palfrey, Holding Out for an Interoperable DRM Standard, in Christoph Beat Graber, Carlo Govoni, Michael Girsberger, and Mira Nenova (eds.), Digital Rights Management: The End of Collecting Societies? (Forthcoming, April 2005.)

The Berkman Center’s Digital Media Project team has released an in-depth analysis of the impacts of policy choises on emerging business models in the music and film industries. Here’s the link to the paper and the abstract:

The online environment and new digital technologies threaten the viability of the music and film industries’ traditional business models. The industries have responded by seeking government intervention, among other means, to protect their traditional models as well as by developing new models specifically adapted to the online market. Industry activity and public debate have focused on three key policy areas related to copyright holders’ control of content: technical interference with and potential liability of P2P services; copyright infringers’ civil and criminal liability; and legal reinforcement of digital rights management technologies (DRM).

Special thanks — and congratulations — to Derek Slater and Meg Smith of the Berkman team for their work.