Tuesday, September 14, 2004

Toxic Twins

At Freedom to Tinker Ed Felten has a post on "consumer self-help", in this case the circumvention of Digital Rights Management systems (DRMs) to make noninfringing use of copyrighted works. On the question why the government has to intervene to prevent a negative effect on consumer interests from (future) use of DRMs and not leave the solution to the market, Felten writes:
"I'm happy to agree [...] that the market, left to itself, would find a reasonable balance between the desires of media publishers and consumers. But the market hasn't been left to itself. Congress passed the DMCA, which bans some products that let consumers exercise their rights to make noninfringing use (including fair use) of works."
The Digital Millennium Copyright Act's (DMCA) twin sister, the European Copyright Directive (EUCD), adresses both the balance between users and consumers, and the noninfringing uses of copyrighted works by consumers. And it does this as rightholder centred as the DMCA.

Recital 31 EUCD states that "a fair balance of rights and interests [...] between the different categories of rightholders and users of protected subject-matter must be safeguarded." (italics added) The Directive, however, does not grant its own wish of safeguarding a balance, let alone a fair balance. Rightholders' interests are looked after by the protection of technological measures in article 6 EUCD, which puts a serious strain on the exhaustive enumeration of copyright exemptions in article 5 EUCD. To put it bluntly, article 6 can nibble away at the consumer interests reflected in article 5 and determine the weight on its side of the balance, and the fairness as such.

Towards the consumers' "rights to make noninfringing use (including fair use) of works", under the EUCD these "rights" are at the mercy of the EU Member States, which may choose to assign 15 of the 21 exemptions. There is no fair use right as such, and there is no recognised right of private use. This has been recently underlined in French and Belgian court cases on private copying and DRMs.

Felten asks for either a repeal of the DMCA or make its sort more wisely. This leaves open the question if the market would, without government interference in the first place (DMCA, EUCD), be a better regulator. It also leaves the question how consumers may pursue their interest, though not right, in private copying for example. While copyright law is set on medication to find its balance, consumer protection law in various European Directives might provide some help. It might not bring a total solution, but gives some counterweight as long as not even the slightest patch is added to copyright to ensure consumer interests (e.g. in the U.S. the DMCRA). Otherwise consumers might really be set to self-help and driven towards illegimate acts.
This not a pathway to the death of copyright, but to a fair balance, as copyright's European embodiment aspires.


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