Proposed Changes To UK Copyright Law Sensible But Require Gov't Request If You Want To Circumvent DRM
from the grateful-for-small-mercies dept
Techdirt has been covering the UK’s long-running saga of attempted copyright reform for some years. Most recently, we wondered whether even the Hargreaves Review’s moderate suggestions would survive in the face of the usual frenzied lobbying from the copyright industry. Rather remarkably, they have, and the UK government has published a list of the legislative changes it proposes to make (pdf).
These are welcome but hardly revolutionary — more a matter of dragging UK copyright law into the 21st century. They include:
a private copying exception that lets people make copies of content they have bought, but only for their personal use;
simpler rules for using copyright material in the education sector;
permission for the limited quotation of copyright works for any purpose, as long as the source is acknowledged;
a limited copying exception for parody, caricature and pastiche;
a research and private study exception;
permission to use published research results for data analysis, but only if it is for non-commercial purposes;
permission for people with disabilities to obtain copyright works in an accessible form if there is none on the market;
archiving and preservation exceptions, designed for museums, galleries and libraries;
wider exceptions for public bodies to share some third-party information online.
The government document provides plenty of background information on its thinking, and why it chose to make the exceptions it did. Along the way, it offers some fascinating insights into the submissions from the copyright companies, and how they attempted to stave off change once more. For example, perhaps aware that it would be unable to convince the UK government not to bring in a range of minor exceptions for the public, the copyright industry seems to have adopted a fallback position based around licensing contracts. Here’s the issue:
One of the arguments made by creators and rights holders in consultation was that licensing should always preclude or override any exception to copyright: if there is a licence then people should purchase it.
If that reasoning were allowed, it would effectively gut all the new exceptions, since they could always be overridden by licensing contracts imposed on users. Apparently, some went even further:
Some responses to consultation suggested that allowing unlicensed use of works when a licence was available was necessarily a violation of the [Berne] three-step test. The Government believes this view to be incorrect, as the requirement of the three-step test is that the law “does not unreasonably prejudice the legitimate interests of the author”, or conflict with the “normal exploitation” of the work.
As the UK government pointed out:
To argue that all exploitation of a work is “normal exploitation” is to reduce the three-step test to two steps, which is manifestly not its intent. Furthermore, a licensing override is potentially inequitable to users: some could be forced to buy licences for uses much broader than the permitted act in question, while others — where there was no licensing scheme in place — would pay nothing.
On the other hand:
users and institutions serving users felt that a failure to address the possibility of contract override could and did render permitted acts meaningless, and their benefits wholly or partly unrealised. They argued this was a problem now. Consumers were not in any position to negotiate the terms on which copyright goods were sold or licensed, and even larger users such as institutions argued that negotiation was so resource-intensive as to be effectively impossible as a general rule; prices were not transparent and there was little or no choice of supplier.
Fortunately, the UK government agreed:
to the extent that is legally allowed, the Government will provide for each permitted act considered in this document that it cannot be undermined or waived by contract. This may include a prohibition on licensing override of permitted acts, or restricting the terms on which licensing may impact on permitted acts. The aim is not to establish contract as superior to permitted act or vice versa, but to ensure licensing does not restrict acts that are beneficial to society as a whole.
However, there is one area where the proposals fall short: dealing with DRM, or “technical protection measures” (TPM) as the document puts it. The problem is that DRM, like contracts, could easily block many of the new exceptions that the UK government is proposing. Unfortunately, European law does not allow the UK government simply to grant users the right to circumvent DRM in such cases. Instead, there is an incredibly clumsy and inconvenient procedure that must be followed:
In the UK, if a person cannot carry out a permitted act due to a TPM, and the rights holder has refused to provide a ‘workaround’, the mechanism used is that a user may issue a notice of complaint to the Secretary of State (SoS). The SoS can issue ‘directions’ to ensure that the permitted act can be carried out.
In other words, if you want to make a backup of an ebook, or transfer a music file to another medium, but are stymied by DRM, you have to write directly to the minister concerned, and ask him or her to contact the copyright holder to provide a copy in some way. Convenient, no?
This ridiculous approach, which will inevitably be ignored by most people as they continue to turn to “alternative” channels to access material they have paid for, is a consequence of the 2001 European Copyright Directive (the European equivalent of the DMCA), which places limits on what the UK government may do in the area of TPMs.
The fact that the UK government is being forced to adopt such a manifestly impractical solution to DRM’s override of the proposed copyright exceptions is a stark reminder of the effect other treaties like ACTA and TPP would have, since these too will oblige all signatories to adopt certain minimum legal requirements for copyright and other areas whether or not they think them reasonable or wise. Indeed, it’s clear that the copyright maximalists have shifted their attention to such multilateral treaties because they neatly circumvent democratic discussions that can happen within individual nations, substituting instead secret negotiations behind closed doors that members of the public can’t even follow, much less influence.
Given these constraints, the UK government has perhaps done the best it could as far as DRM is concerned. The same could be said about the rest of the proposals. None of them is radical or revolutionary, but the fight that it has taken to get them is a reflection of the extraordinary success the copyright companies have had in blocking even the mildest attempt to update copyright legislation in the UK and make it fit for the digital age.
The UK government has stated that it wants to bring the new exceptions into force by October 2013. After all these years, that day cannot come soon enough.