Law and Information

The International Herald Tribune’s weekend edition features an interesting article by David Goodman entitled “Consumers fight copy protection.” You will find references, inter alia, to a Berkman Center study on the EU Copyright Directive I co-authored with Michael Girsberger.

Read this – no comments from my side… (find an inofficial English translation of the draft implementation here.) As my friend Mike puts it: Good luck, Switzerland, on the negotiations of the bilateral trade agreement with the U.S.

INTERNATIONAL INTELLECTUAL PROPERTY ALLIANCE 2005 SPECIAL 301 SPECIAL MENTION SWITZERLAND

The Federal Copyright Act of 9 October 1992 as amended is currently undergoing further revision in order to implement the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT) into Swiss law. IIPA is concerned with the way in which the two treaties are being implemented in the country. The Swiss Federal Institute for Intellectual Property continues to delay the implementation of the WIPO Copyright Treaties. In September 2004 a draft implementation was released, but is problematic in several respects: it has an overly broad private copying exception (indeed the current exception is problematic and certain groups argue that downloading infringing copies of copyright works from peer-to-peer (P2P) networks is legal in Switzerland); inadequate protection of technological measures (including over-broad personal use exemptions); and burdens on rightholders employing technological measures (including labeling obligations).

Furthermore, the Swiss government should seek to make the use of P2P networks for copyright infringement more difficult. SAFE (the Swiss Anti-Piracy Federation) continues to investigate portal sites, which are generally hosted by foreign providers. In March 2004, police (cooperating with SAFE and the German Anti-Piracy organization [GVU]) raided the home of the Swiss creator of an eDonkey portal offering an extensive number of links to movies, cartoons, PC and console games, software, books and pornography (averaging 220,000 visitors per day). This individual will be prosecuted for copyright offenses, the first such prosecution against the creator of a portal for a P2P network in Switzerland.

For the fifth time within two months I’m finding myself back in Cambridge, Mass. You can’t imagine how much I love this place. There are many reasons why I think Cambridge is among the most exciting and inspiring places to be. One reason, of course, are the many wonderful friends and colleagues that have been working and living here. Take as one prominent example my brilliant colleague Derek Slater, Fellow at the Berkman Cente and EFF affiliate with whom I had the pleasure to work on a couple of projects. He has just posted two interesting podcasts on his blog. In the first piece, Derek reports about the P2P litigation summit he participated in, arguing that we have to learn more about – and from! – the stories of the people that got sued by the recording industry. In the second podcast, Derek provides a big-picture analysis of possible (technological, business, and policy) approaches to the file-sharing problem. In essence, he makes a strong case why policy-makers should not take drastic measures (such as, e.g., compulsory licensing systems or, as the worst-case scenario, mandatory DRM schemes) to address the current digital media crises. Rather, policy-makers may be well advised to trust in the evolutionary power of market mechanisms on the one hand (emerging business models, in fact, might address the problem) and to focus on the reform of the DMCA and certain procedural protection measures on the other hand.

Natali Helberger, Institute for Information Law, University of Amsterdam, has written yet another good piece on Digital Rights Management from a Consumer’s Perspective.

An update in English on the current revision of the Swiss Copyright Act is available here. It does not come as a surprise that the anti-circumvention provisions as well as the proposed levy on CD and DVD burners are contested. Note that iTunes – recently launched in Switzerland (see here and here) – is now used to call for thougher legal protection of DRM. I translated the draft anti-circumvention provisions here.

Check out the Berkman Center’s website for reactions. It turns out that the entertainment industry still does not like the study. We’ve also made public our comments on the draft OECD report on digital music.

BNA’s Electronic Commerce & Law Report (subscription required) reports that French attorneys have filed a class action against six of France’s leading audio-visual sector firms, claiming that the use of copy control technology on DVDs violates consumers’ right to make private copies for personal use. The complaint is based on a French appellate court’s ruling mentioned here.

INDICARE has published an interesting supplement to its state-of-art report on digital rights management. Here’s the abstract:

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.

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.