Implementing the European Copyright Directive

One month after the implementation deadline of the European Copyright Directive, only 2 of the 15 member-countries have implemented the law. All over Europe, scientists, legal experts, civil rights and open source groups are warning about possible negative effects on free speech, innovation and academic research. In many countries, civil rights groups joined forces with open software promotors and wrote comments and implementation suggestions. Civil rights advocates in Austria and Finland have organised fruitful seminars. Public awareness was raised through petitions in Denmark and Germany, while in France money is collected to afford professional legal backing throughout the implementation process.

The European Copyright Directive (EUCD), adopted in 2001, strives to harmonise the copyright regime in Europe and adapt the protection of creative works to the digital age. Article 6 of the directive is the most important, and most debated article. It forbids the circumvention of copy protection systems.

The Copyright Directive was published the 22nd of May 2001, after years of difficult negotiations in Brussels. The road to a new copyright directive started with the signing of two new treaties by the World Intellectual Property Organisation (WIPO) in December 1996. National implementation is hardly any easier. So far, only Denmark and Greece have implemented the directive (2001/29/EC), in their existing legislation. Draft legislation was presented to parliament in Austria, Belgium, Finland, the Netherlands and the UK. In the remaining 8 member-countries, proposals have not yet been made public. In Portugal, parliament is excluded from this legislation process.

Article 6 of the EUCD puts a ban on acts of circumvention, as well as a ban on the distribution of tools and technologies used for circumvention. The main reason for the Europe broad resistance against the directive is the fact that there is no reference to existing limitations of copyright, such as the right to make a private copy. Nor is the protection explicitly limited to copyright. Thus the entertainment industry is enabled to dictate usage far beyond the scope of any copyright regulation. In practice, this already resulted in copyright protected CD’s that cannot be played on car stereo’s or computers and in region-coded DVD’s that don’t work on European players. Finally, even though the introduction to the directive specifically mentions that the protection should not hinder research into cryptography, it is not mentioned in the law itself.

Civil rights groups point at the situation in the USA, where some researchers refrain from publishing cryptographic research since the introduction of the Digital Millennium Copyright Act (DMCA) in 1998.

Copyright law is replaced with technology, the campaign group Eurorights.org writes, and the problem with technology is that it is not the right tool for protecting copyright. A piece of software is completely unable to determine fair use, whether the person that wants to quote a part of a work is infringing copyright or if it is within the bounds of ‘fair use’. Furthermore, the EUCD stifles competition in the software market. The only legal way to create a tool for playing or accessing material in a specific protected format is by signing a licence agreement with the creators of the format. This means that the company that creates a digital format has complete control over how the players should behave, and also control over who should be allowed to create players for that format.

The Electronic Frontier Foundation (EFF) just published an evaluation of the effects of the anti-circumvention provisions in the DMCA. According to the EFF, section 1201 of the Act:

• chills free expression and scientific research;
• jeopardizes fair use and
• impedes competition and innovation.

An evaluation report about the Copyright Directive will be produced by the European Commission on 22 december 2004.

EU Copyright Directive 2001/29/EC (22.05.2001)
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:167:0010:0019:EN:PDF

Why the EUCD is Bad – by Eurorights.org
http://www.eurorights.org/eudmca/WhyTheEUCDIsBad.html

EUCD – Copyright extensions that harm – by the Free Software Foundation Europe
https://fsfe.org/campaigns/eucd/eucd.en.html

EFF evaluation of the DMCA
http://www.eff.org/IP/DMCA/20030102_dmca_unintended_consequences.html

Overview of EUCD implementation status through the Belgian Association Electronique Libre
http://wiki.ael.be/index.php/EUCD-Status