Tuesday, January 18, 2005

German Copyright Reform Strengthens DRM

Last week the German Secretary of Justice, Brigitte Zypries, presented her final draft for a modernization of German copyright law. The draft will be discussed in the cabinet next month, and is planned to be passed into law this year. I'll give a round up of some of the major changes, mostly on the private copy, distilled from a news article by the German Institute for Copyright and Media Law (article in German) and end with a short conclusion:
  • There will not come a prohibition of the digital private copy, since this is not enforceable in practice.
  • The private copy will not be enforceable against copy protection.
  • According to current law copying for private use is only allowed insofar for the copying not an obviously illegally produced (master) copy is used. This seeks to ensure that only legal sources are used for private copying. It proved insufficient, since, for example, a download offered on the internet that is a private copy of a legally acquired CD is not as such illegally produced. The wordings of the new German Copyright Law will be changed so that the limitations of private copying also see on an obviously illegal offer on the internet.
  • The exchange, via "illegal" p2p systems, of a small number of songs, exclusively for private use, is exempted from prosecution. The Secretary would not indicate what the exact number might be for an exchange to become punishable, and said it should be left to the courts. However, she did note that a one-digit number of songs should be excluded from prosecution, two-digit numbers were questionable, and downloaders going into the three-digit numbers were surely liable to prosecution.
  • Only one back up copy may be made from computer programs.
  • A system of remuneration, made up of levies and individual licensing, is to include devices that are already widely used to make private copies. Currently only devices (solely) intended to make (private) copies are remunerated. This means that PC's will also fall in the remuneration system, as was already stressed by a recent court ruling.
  • The extent to which copyright protection measures are used has to be taken into consideration when determining the remuneration This is in line with article 5(2)(b) of the European Copyright Directive, which proscribes that the "application or non-application of technological measures" has to be taken into account when calculating "fair compensation" for acts of private copying.
  • The Ministry of Education has charged that the draft contains very limiting regulations for schools, libraries and documentation services. The Secretary of Justice has waived this complaint away and chooses to protect the publishing industry. Today Heise Online reports [German] that the German Library has reached an agreement with the German part of the IFPI, the international representative of the recording industry, and the association of German book traders on copying CD's, CD-ROMS, e-books. Essentially the German Library may crack technical protection measures to copy for lawful purposes, e.g. archiving.
The German copyright reform does not bring good news, unless your a member of the content industry. That the private copying exemption is no right (against DRMs) under European Law and that it was left up to the European Nation States to determine if a private copying exemption would be granted, was already clear. It is more than regrettable that Germany underscribes and strengthens the status quo of DRMs at the cost of its citizens. That (digital) private copying is not prohibited due to enforcement difficulties does not make these sour regulations any sweeter. Nor does the vague file-sharing prosecution exemptions and the privately established agreement reached by the German libraries. With remunerating PCs Germany has the questionable honor to be the first in Europe, if not in the world to do so. This is a copyright reform that goes straight against the reforms that the digital age (could) bring for culture and copyright.
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Later: Electronic Frontier Foundation's and copyright activist Cory Doctorow is more enthusiastic about the news that the German Libraries may crack DRMs:
This is fantastic news -- and it should be a lesson to libraries, schools, institutions that serve the disabled, archivists, and others that they need to fight for their own exemptions. We need to riddle the ban on circumventing DRM with so many little holes that it simply deflates upon itself.
Maybe I should have been more enthusiastic too. But in light of the overall German copyright "reform", the Secretaty of Justice's stand on the libraries poblems and the, what I think, is a subsequent private agreement the libraries reached, this entusiasm was more than a little tempered. At least his fighting spirit is uplifting, as always.


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