19 June 2012

Ireland's copyright consultation

Background

Ireland's Department of Jobs, Enterprise and Innovation are in the process of conducting a review of how copyright operates in Ireland. They published a consultation document and invited submissions. The Irish Free Software Organisation made a submission, which I drafted.

There were also several points about the paper which I thought were interesting, but not strictly Free Software issues:

Observations on the consultation paper

Neutral phrasing

2. The Intersection of Innovation and Copyright in the Submissions

[...]

2.2 Innovation

[...]

[...] the established film, music and news industries have struggled to find successful business models in the face of widespread infringement of the copyright in their content.

[p.5]

Encouraging that they don't use words like 'theft' or 'piracy' here.

Education role of Copyright Council

3.1 Introduction

One of the main issues on which we invite submissions is whether there ought to be a Copyright Council of Ireland (the Council) [...]. Such a body has the potential to be an important resource for the Irish copyright community and the general public, especially if it undertakes processes of public education on copyright, [...].

[p.13]

Mildly worried that 'public education on copyright' might mean the Council would be a mouthpiece for rights-holders. It would be useful if education included 'and these are acts you don't need the copyright owner's authorisation to do'. Last para p.14 is hopeful here:

The subscribing membership of the copyright councils in other jurisdictions is largely confined to rights-holders and collecting societies; but --- having regard to the range of functions which the Council could discharge --- we see no reason why the subscribing membership of the Council should not be more broadly-based and collaborative, such that every interested member of the Irish copyright community (such as all of the various categories of person and organisation which made submissions to this Review) could also be subscribing members of the Council if they wish to be.

[p.14]

Technological Protection Measures

This is not encouraging:

4.8 Technological Protection Measures and Rights Management Information

Various rights-holders submitted that sections 370--376 CRRA [covering use and distribution of tools for circumvention of TPMs] are inadequate in fact to protect technologies used to control access to copyright content, or to prevent users from copying protected content, and are insufficient in law to comply with Articles 6 and 7 EUCD. Whatever about such incompatibility, which is a matter for the courts and not for us, it is certainly the case that the World Intellectual Property Organisation and other jurisdictions have strenghtened or are in the process of strengthing their rules in this regard.

[p.38]

but then it immediately continues in a better tone:

However, this development is not uncontroversial, not least because such measures are capable of preventing not only unauthorised infringements of copyright but also authorised uses of copyright works, such as those that come within the statutory exceptions to copyright. There was insufficient evidence in the submissions that any change to the current position would have a net beneficial effect on innovation, and we therefore invite further submissions in this regard.

[p.39]

The question they ask is worryingly unidirectional:

Q(33): Is there any evidence that strengthening the provisions relating to technological protection measures and rights management information would have a net beneficial effect on innovation?

[p.43]

Alarming that they are only wondering about 'strengthening' the provisions.

Are links to infringing content themselves infringing?

Encouragingly sane language here:

6.3 Linking

On a webpage, a link is an image or text coded to refer to and connect with either another place in the same webpage or another webpage. Linking is therefore essential to the architecture of the web, for all users, not just for intermediaries. Courts are divided on the question of whether a link on one webpage to copyright material on another webpage is a primary or secondary infringment of copyright in that material, though they are increasingly concluding that a link, by itself, should never be seen as publication, reproduction or communication of the content to which it refers, even where that content is an infringement of copyright. These cases take the view that links simply convey that something exists; but they do not, by themselves, publish, reproduce or communicate its content. A further act on the part of the user --- such as clicking on the link --- is necessary before that user can gain access to the content. The fact that links make access to that content straightforward does not change the reality that a link, by itself, is content neutral. It is the user who clicks on the link and publishes, reproduces or communicates the content who is the copyright infringer, and not the provider of the link.

[p.48]

and then they wonder whether they should make this explicit:

Against this backgroud, we invite submissions as to whether CRRA ought to be amended to provide that a link to copyright material, of itself and without more, should not constitute either a primary or a secondary infringement of that copyright [...]

[p.49]

but the questions seem phrased slightly more to invite people to say 'yes, links do infringe copyright':

(45) Is there any good reason why a link to copyright material, of itself and without more, ought to constitute either a primary or a secondary infringement of that copyright?

(46) If not, should Irish law provide that linking, of itself and without more, does not constitute an infringement of copyright?

(47) If so, should it be a stand-alone provision, or should it be an immunity alongside the existing conduit, caching and hosting exceptions?

[p.56]

Role of users / 'the public'

7.2 Users and innovation

Innovation occurs in many places and comes in many forms. [...] users customise products to meet their specific needs more precisely. Such innovation can lead to the evolution of the original goods or services or to the development of new ones, and is a very important source of innovation in the modern economy. [...] The key point is that innovation is not only a linear top-down process, it is also an iterative and interactive one in which users play increasingly important roles.

[p.58]

Good that they recognise this. Freedom for users to innovate is valuable, and Free S/w provides this best. Free S/w is itself a copyright-able work --- it explicitly encourages transformation of itself, as well as being a good way to create tools for transformation of other content.

Permitted acts

7.3.1 Users and copyright exceptions

Copyright law seeks to balance the interests of rights-holders in protecting their monopoly against other legitimate interests in diversity. In particular, by protecting only "original" works, by preventing only "substantial" infringements, and by providing a range of exceptions, copyright law accommodates interests other than those of rights-holders, such as those of users. Together with many other common law jurisdictions, one of the main exceptions provided by CRRA is "fair dealing" [...]

[p.59]

Good, but utterly useless if the user can't exercise those 'fair dealing' rights because of TPMs.

Generally there are lots (thirty) of good pages here, expanding the range of uses for which no explicit permission is needed.

There is a further reason to incorporate the full range of EUCD exceptions and limitations. The recent UK review recommended that copying should be lawful where it is for private purposes or does not damage the underlying aims of copyright. It observed that taking advantage of these EU exceptions would bring important cultural as well as economic benefits to the UK. In its view, this would make copyright law better understood and more acceptable to the public. The UK government recently announced that it would therefore transpose all of the EU exceptions and limitations into UK law. Australia has already done something similar [...]. Canada is in the process of doing something similar too [...]. If Ireland is not to be at a competitive disadvantage to these countries, then we need to do the same.

[p.61]

They see the current lack of exceptions to copyright as a competetive DISadvantage for Ireland. Encouraging.

Many of the following sections describe how Ireland's copyright law ought to incorporate more of the EUCD-allowed exceptions. Many of them prompt the question 'but what if the user needs to violate TPMs to do this?'. E.g.:

Format-shifting

(1) It is not an infringement of the rights conferred by this Part if ---

(a) the owner or lawful user of a work makes or causes to be made a reproduction of that work in a different format,

[p.64]

Back-ups

(1) (a) It is not an infringement of the rights conferred by this Part if the owner or lawful user of a work makes or causes to be made a reproduction of that work as a back-up copy of it which it is necessary for him or her to have for the purposes of his or her lawful use. (b) In particular, it is not an infringement if the reproduction is made as a back-up copy in case the work is lost, damaged or otherwise rendered unusable.

[p.65]

With respect to 'rendered unusable' --- if DRM servers are shut down? Recent-ish case where Microsoft nearly shut down 'Plays For Sure' [sic] servers?

Educational copies

Use by educational establishment of work available through the internet.

(1) It is not an infringement of the rights conferred by this Part if an educational establishment, for the educational purposes of that establishment, reproduces or communicates a work that is available through the internet; provided that the reproduction or communication is accompanied by a sufficient acknowledgement.

(2) (a) Subsection (1) does not apply if—

(i) the work is protected by a technological protection measure, [...]

[p.71]

Why do they explicitly call out TPM here? They don't in drafts of other exceptions.

Accessible copies for disabled persons

The Paper goes into quite some detail on this. Including:

(8) If the master copy is in copy-protected electronic form, any accessible copy made of it under this section must, so far as it is reasonably practicable to do so, incorporate the same, or equally effective, copy protection (unless the copyright owner agrees otherwise).

[p.75]

Why language of 'copy protection' rather than 'TPM'?

User-generated content

Non-commercial user-generated content.

(1) It is not an infringement of the rights conferred by this Part for a person to use an existing work in the creation or communication of a new work; provided that ---

(a) any such use, creation or communication is done solely and exclusively for non-commercial purposes

[p.83]

What if a user makes a hit YouTube video --- the user makes no money, but YouTube does. Is this 'non-commercial'? Who (if anyone) has violated copyright?

Consumer protection

There are encouraging words about 'consumer protection', i.e., you have the right to format-shift etc., even if you sign a contract saying forbidding it.

7.3.24 Consumer protection

The rights provided to consumers or users by the exceptions to copyright could be very easily set at naught by means of terms and conditions in contracts between rights-holders and users. Hence, section 2(10) CRRA very sensibly provides:

Where an act which would otherwise infringe any of the rights conferred by this Act is permitted under this Act it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict that act.

[p.85]

It then goes on to wonder whether this is strong enough language. Here is a natural place to make the point that TPMs have just the same effect and so should be treated similarly.

Innovation exception

Covered in

8.3.3 A specialist copyright exception for innovation?

[p.90]

They wonder whether it should be OK to copy / transform / make 'new' uses if they don't interfere with normal exploitation of initial work. Good that (as I read it) they want to stop rights-holders being 'dog in the manger' about new ideas.

On p.93 they give the example of a search engine really being 'new', and not interfering with exploitation of original work despite copying large bits (or all) if it. Good they see this.

Heritage institutions (e.g., archiving by libraries etc.)

9.2 Format-shifting for archival purposes

It was submitted to us that sections 59--70 CRRA relating to libraries and archives are not well adapted to the digital age. In particular, it was argued that heritage institutions should be able to make digital reproductions of protected works for archival and preservation purposes and to format-shift archival copies to guard against future obsolescence.

[p.96]

Probably 'protected works' means 'by copyright' rather than 'by TPMs'. The reference to 'future obsolescence' could include DRM servers being shut down?

Legal deposit:

(8) A copy of a digital publication delivered pursuant to this section to any of the authorities referred to in section 198(1) and section 198(5), other than those referred to in subsection (7), shall be in the format specified by the Board or authority; and the Board or authority my require the person delivering the digital publication to deliver, with the copy of the digital publication, a copy of any computer program and any information necessary in order to access the digital publication, and a copy of any manual and other material that accompanies the digital publication and is made available to the public.

[p.105]

The decription 'any information necessary in order to access the digital publication' could include DRM keys. But 'computer program' etc. is a bit annoying as it means the library is tied to using (say) Word 95 for ever, rather than breaking the TPM and archiving in an open format.

Research exception

This does include mention of breaking TPMs:

Digital analysis and research.

(1) It is not an infringement of the rights conferred by this Act for a person to reproduce a work for a purpose to which this section applies if ---

(a) it would not be practical to carry out the research without making the copy,

(b) the person is the owner or lawful user of the work, and

(c) the person has informed the owner of the rights in the work, unless this is unreasonable or inappropriate or turns out to be impossible for reasons of practicality or otherwise.

(2) This section applies to ---

(a) text-mining, data-mining, and similar analysis or research,

(b) encryption research and similar analysis or research, and

(c) such other analysis or research as the Minister may by order provide.

(3) Nothing in Part VII shall be construed as operating to prevent any person from undertaking the acts permitted by this section or from undertaking any act of circumvention required to effect such permitted acts.

Computer security.

(1) It is not an infringement of the rights conferred by this Act for a person to reproduce a work for the sole purpose, with the consent of the owner or administrator of a computer, computer system or computer network, of assessing the vulnerability of the computer, system or network or of correcting any security flaws.

(2) Nothing in Part VII shall be construed as operating to prevent any person from undertaking the acts permitted by subsection (1) or from undertaking any act of circumvention required to effect such permitted acts.'

[p.109]

The 'Part VII' references are to the sections of the current CRRA saying 'thou shalt not even talk about how to violate TPMs'.

Inclusion here of 'OK to violate TPMs' suggests that they don't think it's OK to violate TPMs to exercise other exceptions, unfortunately.

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