FC: Review of European copyright directive and more on UK DMCA

[Declan McCullagh <declan () well com>]

[See below for some corrections to my admittedly quick read of the UK 
proposal (http://www.politechbot.com/p-03878.html). --Declan]

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From: Paul Mobbs <mobbsey () gn apc org>
To: declan () well com
Subject: EC Copyright Directive consultation paper - a review
Date: Tue, 13 Aug 2002 15:02:44 +0100

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Hi,

GreenNet have agreed to fund me to do a very small amount of work on the
DTI/Patent Office consultation paper on implementing the new EC Directive on
copyright.

I've put my initial thoughts online, in HTML and PS/PDF, at:
http://www.fraw.org.uk/docs/consultation_review.html
http://www.fraw.org.uk/docs/consultation_review.pdf


The review is an initial reading of the consultation paper in order to
pull-out the key issues. It is not intended to define a particular response
on behalf of any particular interest group.

Re: recent discussions on "is this the UK's version of the DMCA", in my view
it isn't. It hits ordinary users of information far harder than more
specialist computer users. This is because computer software and databases
are actually *exempted* from the terms of the directive (read the small
print). But mainly because it seriously interferes with the traditional 'fair
dealing' provisions that restrict copyright over certain types or quantities
of information. It also potentially affects academic and journalistic
freedoms to quote and critically review information.

I think this actually has far more interesting civil liberties/passive
surveillance issues, because of the proposals to permit monitoring of digital
copyright over networks, and to make it potentially criminal to interfere
with such monitoring (e.g., using a two-way firewall, anonymising/proxying
your connection, etc.).


The key points of the review are:

#The implementation of the Directive does not create a tight copyright
control over computer software/databases, as that's already been done under
other European legislation.

# The Directive does create a strict system of control for all other
non-software/database digital information. This is one of the most damaging
aspects of the new legislation because it could restrict the 'fair dealing'
conditions of existing copyright law.

# Certain breaches of copyright become criminal offences rather than just
civil offences.

# The tracking of the use of information online will be legally enabled, and
any measure to counteract such tracking could be a criminal offence. This
potentially enables a system of online surveillance far superior to ordinary
network logging.


If you'd like to network a little more on these issues, please get in touch.

Also, feel free to forward this email.


P.


- - - - --
- - - - -------------------

"We are not for names, nor men, nor titles of Government, nor are we for
this party nor against the other but we are for justice and mercy and
truth and peace and true freedom, that these may be exalted in our nation,
and that goodness, righteousness, meekness, temperance, peace and unity
with God, and with one another, that these things may abound."
(Edward Burroughs, 1659 - from 'Quaker Faith and Practice')


Paul Mobbs, Mobbs' Environmental Investigations,
3 Grosvenor Road, Banbury OX16 5HN, England
tel./fax (+44/0)1295 261864

email - mobbsey () gn apc org
website - http://www.fraw.org.uk/mobbsey.html
public key - http://www.fraw.org.uk/keylist.html

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Date: Tue, 13 Aug 2002 11:01:21 -0700
From: Janko Roettgers <roettgers () lowpass de>
Organization: lowpass.de
To: Declan McCullagh <declan () well com>
Subject: Re: FC: U.K. considers even broader version of DMCA copyright law
Hello Declan,

I'm not an expert on the EU directive, but I think the important point
is:

>>(c) in the course of a business—
[...]
>>(iv) possesses, or

This seems to be rather close to the original EU directive. We have a
somehow similiar draft over here in Germany.

> Because, based on my quick and preliminary reading, this would ban the mere
> possession of circumvention tools, it would be broader than the U.S. 
version.

It's definitely broader, but it still doesn't mean that they could go
after people that just have CloneCD on their hard drive.

Best,

Janko

--
Janko Roettgers
roettgers () lowpass de
http://www.lowpass.de
icq: 118804546

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Date: Mon, 12 Aug 2002 17:40:12 -0500 (CDT)
From: Darren <darren () osadchuk org>
X-X-Sender: darren@localhost.localdomain
To: Declan McCullagh <declan () well com>
Subject: Re: FC: U.K. considers even broader version of DMCA copyright law

Hi Declan,

Feel free to post this to the list if you wish. I'm no lawyer, etc.

On Mon, 12 Aug 2002, Declan McCullagh wrote:

>Text of the draft:
>http://www.patent.gov.uk/about/consultations/eccopyright/index.htm
>
>Excerpt (page 14 of PDF):
>>  A person commits an offence if he—
>>(a) makes for sale or hire, or
>>(b) imports otherwise than for his private and domestic use, or
>>(c) in the course of a business—
>>(i) sells or lets for hire, or
>>(ii) offers or exposes for sale or hire, or
>>(iii) advertises for sale or hire, or
>>(iv) possesses, or
>>(v) distributes, or
>>(d) distributes otherwise than in the course of a business to such an extent
>>as to affect prejudicially the copyright owner
>>any device, product or component which is primarily designed, produced, or
>>adapted for the purpose of enabling or facilitating the circumvention of
>>effective technological measures.
>
>Because, based on my quick and preliminary reading, this would ban the mere
>possession of circumvention tools, it would be broader than the U.S. version.

I think (non-commercial) possession of circumvention tools is still legal
under this draft. It's only illegal "in the course of a business" - the
bit about possession (iv) is a sub-point of subsection (c) - so you cannot
possess circumvention tools for commercial purposes. Additionally,
subsection (b) allows importation if it is for "private or domestic use,"
so mere possession doesn't appear to be illegal.

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Subject: Re: FC: U.K. considers even broader version of DMCA copyright law
To: declan () well com
From: balaban.law.office () snet net
Date: Mon, 12 Aug 2002 12:12:59 -0400


No, Declan, not the mere possession....

An individual could possess but not if he does so in the course of a
business. Obviously then, no security firm could possess such a device,
product or component.

So perhaps I could import it, or make it for my own use, but no one could
have a copy to test to see if it would defeat their copy protection because
they are then using it in the course of their business which is illegal
under the draft.

[This IS NOT LEGAL ADVICE but merely my thoughts on this matter and it is
NOT THE OPINION OF MY EMPLOYER it is only mine.]

.....jack bunce
     LAW OFFICE OF MARK A. BALABAN
     voice (860)346-5244
         fax (860)347-9706
     balaban.law.office () snet net

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