Digital Rights Management
Just before the Commission hearing on DRM, EDRI member FIPR (Foundation for Information Policy Research) organised a 2 day workshop on the future of EU legislation on copyright in Cambridge.
In his opening remarks, FIPR chairman Ross Anderson pointed to the 'big, greedy' industry interests dominating the discussion about so-called Intellectual Property Rights at present and called for a similarly 'big, greedy counterforce' which, he said, was already emerging from an ad-hoc alliance of industries concerned about copyright extremism, of user and consumer advocates.
Teresa Hackett summed up the issues in the Commission review. She pointed to the obvious contradiction between the Commission's claims that the review was just about 'finetuning for consistency' and the origins of the review at the 2002 Santiago de Compostela revision conference, where Commission representatives had openly talked about a 'Super Directive' on copyright and related rights they wished to have. The inherent danger was, she said, that the 2001/29/EC Directive (known as the EUCD), which the Commission is proud of, but which is indeed a badly and inconsistently drafted law, would be used as a blueprint for revising also neighbouring Directives such as the ones on Software or on Rental Rights. As for the Database Directive, she said it should be repealed, because it never had any justification and allowed rightsholders to get, using some simple tricks, eternal copyright on databases.
Civil Society representatives, user and consumer advocates were not allowed to voice their concerns on social, cultural and economic consequences of a wide-spread introduction of so-called Digital Rights Management (DRM) technology during a hearing organized by the European Commission on 11 October, in Brussels. Stopping short from actually censoring these concerns, which were voiced by a large number of advocacy groups and individuals during a recent consultation on DRM, the Commission's DG Internal Market, who organized the event, invited only a few representatives of organizations that had taken a critical stance towards DRM.
Instead, lobbyists representing industry firms hoping to make big money with the technology were given abundant speaking time, very often two to three times as much as the allowed five-minute limit. This led to time running out in the end. And only at the very end the slot was planned during which most Civil Society speakers hoped to voice their concerns or talk about the various court cases that consumers have won against producers of media made useless by DRM. Thus the theme 'Developments in case law as well as relevant economic, social or cultural or technological developments' was skipped from the agenda.
Civil Society representatives, user and consumer advocates were left almost speechless yesterday, October 11, at a hearing organised by the European Commission on Digital Rights Management. Due to the invitation policy of the Commission's DG Internal Market, the event, organized to help the Committee established under Article 12 of the EU Copyright Directive evaluate the way Article 6 of that same Directive is being transposed, was entirely dominated by the Digital Rights Management Iindustry and by representatives of collecting societies.
In response to an informal consultation by the European Commission on a report on the future of Digital Rights Management (DRM), several digital rights organisations have sent in statements. The report was prepared by a High Level Group consisting of companies and industry groups. As user representative only the European Consumers Union (BEUC) was invited to participate, and it withdrew its support from this report.
EDRI member FIPR points out the democratic failure of this process. "The consumer representative (BEUC) was unable to subscribe to most of its recommendations. It is quite improper for the Report to nonetheless represent its findings as a 'consensus'."
The German group Privatkopie.net "urges the commission to create conditions under which the privacy of information users and their 'right to read anonymously' are guaranteed." A similar point is made in the Italian response (including Associazione Software Libero and the Italian Linux Society). "We notice that leaving it to 'rights holders to build balanced business practices with their customers' is a short-sighted position because it does not consider that the balance between right holders and society - the pivot of all laws on human intellectual production and on the related economic exploitation - cannot be guaranteed neither by one of the two sides alone nor by the market tout court." And the Italian paper concludes with the demands that no personal or characteristic data of the user should be required, detected or used when not absolutely necessary to the authentication mechanism and DRM systems may not include or allow user tracking features.
The European Commission has decided today, 25 August 2004, to examine in depth the joint acquisition by Microsoft and TimeWarner of ContentGuard. This company, formerly owned by Xerox, is a world market leader in so-called Digital Rights Management technology. It has developed the Extensible Rights Markup Language (XrML). Microsoft has eyed the company for a long time and made considerable investments before announcing last April to couple up with Media Company TimeWarner in order to buy the remainder of the company. In July, Microsoft and TimeWarner filed a request for clearance of the deal with the EU's merger control authorities. After a relatively brief review, the Commission has now decided to examine the planned acquisition in depth. "Under Microsoft's and Time Warner's joint ownership", the Commission declares in a press release issued today, "ContentGuard may have both the incentives and the ability to use its IPR portfolio to put Microsoft's rivals in the DRM solutions market at a competitive disadvantage." The merger controllers, still headed by the Italian Mario Monti, recall former competition cases involving browsers and media players. But they also take other EU objectives with a direct influence on competition issues into account: "This joint acquisition could also slow down the development of open interoperability standards. As such, this would allow the DRM solutions market to 'tip' towards the current leading provider, Microsoft." The Commission must reach a final conclusion within four months from now on, i.e. until 25 January 2005. Most of the investigation will then be headed by the Dutch Commissioner Neelie Kroes, who has a reputation of being more Microsoft-friendly than her predecessor Mr. Monti.
The deadline is nearing for two important consultation rounds from the European Commission, on mandatory data retention and on copyright.
European Digital Rights is working hard on a thorough answer on the EU plans for mandatory retention of all internet and telephony traffic data. The document will be made publicly available on the EDRI website, and EDRI will participate in the public hearing following the consultation on 21 September 2004. But more input, both from the industry and civil society, is urgently needed in order to have any impact on the decision making process. EDRI calls on all readers of this newsletter to send in responses on the consultation and protest against the proposal to store extensive sensitive data about all EU citizens. At the request of Privacy International, the UK lawfirm Covington & Burlington has prepared an extensive legal argument against general data retention, for violating fundamental human rights. Please feel free to use any arguments from this document in your answer, with reference to the original document.
The European Commission is organising two interesting public consultation rounds, on nanotechnology and on digital rights management (DRM).
The consultation on nanotechnology invites public feedback on the communication 'Towards a European Strategy for Nanotechnology', in which the Commission proposes an integrated and responsible approach for developing nanosciences and nanotechnologies in Europe. All interested people are encouraged to take part by directly writing to the Commission firstname.lastname@example.org by 30 September 2004.
Commission press release: How big is nanotechnology for Europe? (30.06.2004) http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/04/1005...
Online questionnaire about nanotechnology http://www.nanoforum.org
The European Commission has funded a new project to make Digital Rights Management more acceptable to consumers. INDICARE (the Informed Dialogue about Consumer Acceptability of DRM Solutions in Europe) is distributing its first e-mail newsletter this week. The newsletter includes links to articles on the INDICARE website that are conceived as the starting point for online discussions. Under the E-Content programme 2003-2004 1 million euro is allocated for 'accompanying measures' like community building.
DRM-technology is seen by both the Commission and the (multi-)national entertainment industry as the best solution to control copyrights in a digital environment. Civil rights organisations, data protection authorities and consumer unions however are not very keen on giving complete control over their reading, listening and watching habits to industrial parties. Initiatives to integrate DRM in both hard- and software, like the TCPA initiative, have strongly been criticised for violating fundamental freedoms of computer and internet usage.