Tuesday, June 14, 2005

Norway: From Playback to Setback Under EUCD Implementation

Over at INDICARE a new article has been published on Norwegian's efforts to get its copyright laws in line with the European Copyright Directive (EUCD), especially in relation to technological protection measures: Norwegian implementation of the EUCD article 6 by Thomas Rieber-Mohn. The author reviews the recent White Paper of the Ministry of Culture and Church Affairs which contains various amendments to Norwegian's Copyright Act [unofficial english translation].

I think the article is a bit hard to follow at times, but it lifts out some interesting aspects. They're summarized in the article's conclusion:
Further, the ban [on circumvention of technological protection measures-RL] shall not apply to acts of circumvention that are needed in order to enjoy the work within the private sphere on so-called "relevant playback equipment". The proposed "interface" [to copyright exceptions-RL] obliges right holders to respect the relevant copyright exceptions while shaping their technological measures. If they do not do so, the beneficiary can file a complaint to a specialist tribunal empowered with the authority to - ultimately - grant a permission to circumvent.
On "relevant playback equipment": consumers may circumvent DRMs on, for example, CDs, if these DRMs prevent the enjoyment in the private sphere of the CD. The interesting part is that the White Paper restricts this limited circumvention to "relevant playback" equipment. This means that DRMs on a CD may be circumvented to "enjoy in the private sphere" on a CD player, not for conversion to MP3 players. I don't know the background to this lock-in to relevant playback equipment, but the reasoning might be that a subsequent ripping of CDs to MP3 player or computer, after circumventing their DRMs, puts the music files up for grabs through P2P networks. The prevention of this kind of "unsecured" platform-shifting has been part of the strategy to prevent the dissemination of copyrighted material. Rightly so, I think, the Norwegian parliament has criticized the proposal in its first hearing, and it is probable that conversion to MP3 (players) will be part of a revised, future proposal.

Interesting is also that for on-demand-services, such as online music stores, the determination of what is relevant playback equipment is governed by the contract in place between the service (e.g. iTunes Music Store) and the client. Contractual freedom thus overrides limited circumvention by the consumer. I'm only pondering here, but would this mean that consumers can be tied by contractual terms to a specific playback platform? Proprietary songs for proprietary players, where DRM does not already pave a path to this direction?

On "interface towards copyright exceptions": this interface refers to the requirement under article 6(4) EUCD for member states to take measures that rightsholders provide users with the possibility to benefit from certain copyright exemptions (private copying being not one of them): e.g. for teaching, archiving, library use. As stated in the article, article 6(4) does not apply to online on-demand-services if exemptions are excluded by contract. The White Paper proposes a failsafe mechanism in case the rightsholder does not provide the possibility to enjoy copyright exemptions: the "beneficiary" can make a request to a committee appointed by the Ministry that can set a time limit for the rightholder to comply, after which the committee can allow the benificiary to circumvent the used technological protection measures. This "failsafe" is exemplary for the change of (legal) position of rightholders and users in the enforcement of (copy)rights under technological protection measures. Now it is the user that has to actively seek to secure its interests, confronted with a technological barrier in first and a procedural barrier in second instance. The article says that for consumers this procedural failsafe is an "effective means to enforce her copyright exception privileges" and that it is important that "it lies with the consumer to trigger this right." While the Norwegian proposal seeks for a balance between rightholders and user rights, one might question the "effectiveness" and the "importance" of the proposal. The existing fulfillment of user interests is prevented by the implementation of DRMs, and users are forced to negotiate with rightholders to secure their interests, having a possibly time-consuming procedure with an uncertian outcome as a failsafe. This makes the path of enfocement of interests a long and winding road.


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