Campaign for Digital Rights: Frequently Asked Questions

Index

General questions
Issues
- Are you in favour of piracy, then?
- What about file sharing?
The European Union Copyright Directive
"Fair Use" rights
Technical Protection Measures (TPMs)

General questions

Who are we?

The Campaign for Digital Rights was founded by a group of programmers, IT consultants, businessmen and others who were outraged by the arrest of Dmitry Sklyarov. Our initial goal was to arrange protests in support of Dmitry; shortly after our first website and the mailing lists were established we discovered that the EUCD was on its way, and decided that we need to start a campaign to have it revised, and the Campaign for Digital Rights was born.

Active members of the campaign come from all walks of life; naturally many of us work in academia and the IT industry (programmers, consultants, sysadmins, directors of IT companies, etc.) but membership is open to all, since the EUCD potentially affects anyone who reads, watches films, listens to music or uses computers. You will find journalists, teachers, authors, musicians, businessmen, lawyers and representatives of many other professions on the mailing list.

Our contacts page has contact details for general and press enquiries, suggestions about the website, etc.
Do you all share the same opinions, then?

No! The Campaign is very loosely structured, and of course the views of its members vary; some members are relatively moderate, others relatively extreme, to use loaded terms. We don't try to enforce a particular viewpoint, and the views which we present here are those on which a rough consensus exists.

Have a look at the mailing list archives for a flavour of what we argue about, and what we agree on.
What legislation affects digital rights in the UK?
Various pieces of relevant legislation are listed on our legislation resources page. As a brief run-down,
- The most recent copyright Act in the UK is the Copyright, Designs and Patents Act 1988 (or, as amended).
- CDPA 1988 contains the UK implementation of the "European Software Directive", more properly, the Directive on the legal protection of computer programs.
- The new "European Union Copyright Directive", the Directive on the harmonisation of certain aspects of copyright and related rights in the information society (or see a better-formatted local copy) must be implemented by member states before the end of 2002.
A further list of relevant legislation is available from the UK Patent Office.
Without laws like the DMCA, how will we protect copyright in the digital age?

File sharing will become easier, as technology improves. But so will copyright holders' ability to give their customers cheap easy access to their wares, e.g. downloading an album by pressing a single button, which initiates the download and automatically charges the customer a modest amount, say £1.

Note that is considerably less than what people pay now for music. The reduction in price is due to a reduction in production cost - there are no lorries moving pieces of plastic around, no bricks-and-mortar shops to sell the pieces of plastic in (to say nothing of the benefit to the environment). And the lower price will encourage more sales, since people will be happier to pay £1 to try some music they've not heard before, than £15.
But if people can make illegal copies, no-one will buy legal copies, will they?

That's the line the content distribution industry want to push. But they've cried wolf many times before. Remember "home taping is killing music"? They tried to stop VCRs too.
OK, the content industry has been wrong about illegal copying before. But what if they're right this time?

Even if unauthorised copying became ubiquitous and nobody paid for legal copies of content, it wouldn't stop the delivery of most content. Films make money from cinema audiences, merchandise and TV showing. TV programs are paid for by by advertising, and the licence fee (in the UK), musicians get paid for live performances and merchandise, book authors mostly don't earn a living wage for it now (and therefore must be writing books for other reasons) and could be compensated by an extension of the existing scheme where they are paid for library borrowings of their books.

If we introduce laws like the DMCA, the Internet will become something like a police state, with the content industry becoming judge, jury and executioner for your behaviour in the electronic world. Think that's far-fetched? So did Amita Guha until it happened to her.
But won't the media corporations win anyway? Is there anything we can do about it?

They've been winning so far, because they've got lots of money and therefore access to politicians.

However, everyone reads books or listens to music or watches films and TV programs. A DMCA-like copyright law would harm everyone, except employees of the content distribution industry, who are maybe 1% of the electorate. It thus has the potential to be less popular than the Poll Tax, with similar effects on the careers of those introducing it. This is an argument politicians up for re-election are likely to take very seriously indeed, if we get enough support.
Where can I get more information about digital rights issues?

If you have a question which is not covered by this FAQ, you could ask the FAQ maintainer, Chris Lightfoot, or join the CDR's discussion mailing list. There's also a page of contact information for the Campaign.

Issues

Are you in favour of piracy, then?

"Piracy" means the copying of works without the permission of the rights holders and outside the scope of "fair use" rights. We're not in favour of it.

In general, the CDR believes in a fair system of copyright which strikes a balance between the rights of authors and the rights of the public at large. That certainly doesn't include allowing large-scale unauthorised copying.

(We don't much hold with armed robbery on the high seas, either.)
What about file sharing?

Like many of the new communications technologies brought by the internet, peer-to-peer file sharing can be used for copyright infringement or for the legitimate distribution of works at near zero cost. Asking whether the technology is bad is like asking whether email is bad because people can send you rude messages; what matters is not the technology, but what people choose to do with it.

The European Union Copyright Directive

What is the European Union Copyright Directive?

The "European Union Copyright Directive", or, more properly, the Directive on the harmonisation of certain aspects of copyright and related rights in the information society establishes in European law a number of changes which are, broadly, intended to bring European copyright law into line with the provisions of the various World Intellectual Property Organisation treaties, including the WIPO copyright treaty. Among other changes, the Directive requires that member states incorporate into law protection for "effective technical measures" and "digital rights management" information. See also the CDR's main EUCD page.
Why should programmers and software developers be worried about laws such as the EUCD?

Because the EUCD gives (in article 6) legal protection to "effective technical measures" used by rightsholders to restrict the use of copyrighted works, and because reverse-engineering such a measure is equivalent to circumventing it, the law creates a class of computer programs which cannot legally be written. Under the "Digital Millenium Copyright Act" in the United States, which is the rough equivalent of the EUCD, the programmer Dmitry Sklyarov was prosecuted for writing a program intended to allow the users of electronic books to back up the works or to make them more accessible to blind people. In the future, we can expect more widespread use of technical protection measures, and therefore the sphere of computer programs which will be illegal to write will widen. We can imagine, for instance, a future word-processor protecting its document files with a technical protection measure, so that the file format gains legal protection from circumvention: and, hence, reverse engineering. The publisher of the software would therefore be able to preserve their market from any competing product.

Similar protections apply to "rights management information", which is metadata such as identifying "watermarks" which is combined with a work (this is covered by article 7 of the EUCD); in particular, the EUCD prohibits the removal or modification of rights management information. Although not as serious as the problems with the protections for technical protection measures, these provisions clearly restrict the ability of programmers to develop software to process media files. For instance, it could become illegal to write image processing software which permits the removal of "watermarks" or which converts images into a format which does not preserve them. One implication of this is that when rights management information is used to track the usage of a work in digital format, infringing user privacy, it will become illegal to write or use software to strip out the information in an attempt to preserve the user's privacy rights.

In general, the EUCD and similar laws represent an unwanted and unhelpful intrusion into the sphere of software development and innovation. See also our article, Why the EUCD is bad.

Things may get worse, of course. In the United States, media companies are pushing for the introduction of even more draconian legislation, the CBDTPA ("Consumer Broadband and Digital Television Promotion Act", previously the SSSCA or "Security Systems Standards and Certification Act"), which would require all computer systems to be licensed by the Federal Government, lest they become channels for "piracy" of copyrighted works. This would be likely to criminalise much small-scale software development, and effectively prohibit the use of open source operating systems in the United States. See this Wired article by Declan McCullagh, and draft text of the bill at Cryptome. Although the CBDTPA is not yet law even in the United States, it should serve as a warning of the character of restrictions for which the media industry is now lobbying.
What does the EUCD mean by an "effective technical measure"?

The discussion of TPMs in Article 6 of the EUCD discusses technical protection measures and the legal protection which they are to attract under the new copyright regime. The Directive requires member states to

provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.

Technological measures are defined in article 6.3. A measure is deemed to be "effective" if

the use of a protected work or other subject-matter is controlled by the rightholders through application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject-matter or a copy control mechanism, which achieves the protection objective.

This definition is somewhat tautological. An "effective" measure is one which can be used by rightholders to control the use of a work, and "which achieves the protection objective". An obvious argument to make here is that a TPM which has been broken does not "achieve the protection objective" and is therefore not "effective". However, it is hard to believe that the framers of the Directive can have intended for the legal protection of a measure to extend only up to the point where it is circumvented.

(The draft UK implementation does not clear this up at all; it simply uses the "effective technological measures" formula verbatim.)

In summary, we don't know the answer to this one, but it is hard to believe that we should understand "effective" to mean "not broken yet". A more reasonable interpretation which (especially in the light of the definition in article 6.3) is that an "effective" measure is one which is designed and intended to restrict access to a work.

"Fair Use" rights

What are "fair use" rights?

The owner of a copy of a copyrighted work, such as a book, computer program or compact disc, has certain rights in respect of that work regardless of copyright. These rights are referred to as "fair use" rights; although the particular rights vary from jurisdiction to jurisdiction, typical examples include the right to copy extracts of a work for the purposes of study or criticism and the right to make a back-up copy of a computer program in order to protect your investment in the program. In some jurisdictions, such as the United States, a user is permitted to make private copies of a work in order to, for instance, make it available on a more convenient medium than that in which it is supplied (e.g., copying a compact disc onto a cassette tape so that it can be played in a car stereo).
Why are "fair use" rights important?

Copyright represents an extremely powerful, state-endorsed monopoly on the distribution of any work which it protects. Fair use rights, along with the limited term of copyright, represent the other half of the copyright bargain between the creators or publishers of works and society. (It is no surprise that media companies are trying to erode both of these protections.)

If there were no fair use rights, that is, if the protections afforded by copyright were absolute, rights holders would be able to suppress the publication of an unfavourable review which included extracts of a work, to prevent libraries from lending books and to prevent works being studied in schools and universities without the permission of the publisher. Fair use rights are vital in protecting freedom of expression and the free exchange of ideas. Without a fair use right to make a back-up copy, it would be impossible for computer users to legally protect the investment they make in purchased software.

Indeed, the absence of a fair use right of private copying in the UK has already resulted in the absurd situation that making a copy of a compact disc on a tape to play in your car is an infringing act. It surely cannot be in the interests of society for a music lover to have to buy two separate copies of a work in order to be able to listen to it either at home or on the way to work.
What "fair use" rights exist in the UK?
"Fair use" rights in the UK are addressed by the doctrine of "fair dealing". By comparison to those available in other countries, the rights in UK law are rather restricted. Those explicitly covered by the Copyright, Designs and Patents Act 1988 consist of:
- A general exemption for the purposes of research and private study (section 29); this does not apply to acts relating to a database done in the course of commercial research.
- An exemption for criticism, review and news reporting, which permits the use of parts of works other than photographs so long as accompanied by a "sufficient acknowledgement".
- An exemption for "incidental inclusion" of a copyrighted work in an artistic work, television programme, etc.
- Some general exemptions for educational establishments and publications (sections 32 through 36A).
- Various other rights relating to libraries and public administration; in particular, these govern the making of copies by libraries for their users, and the making of copies for court proceedings and various governmental uses (sections 37 through 44).
- The right of the user of a computer program to make a back-up copy, or to "reverse-engineer" the program for the purposes of interoperability (sections 50A through 50C).
- The right to make a recording of a broadcast or cable programme for "time shifting", the purpose of viewing or listening at a more convenient time (section 70).
- Various rights associated with databases, registered designs, and typefaces, which probably do not concern most consumers.
In particular, note that there is no general right of private copying in UK law, even for "media shifting". Since making any copy is an infringing act unless specifically exempted, and the only exemptions made are those listed above, private copies of a work such as copies of CD tracks in MP3 format on a PC are infringing copies. In fact, even the copies of copyright materials in an internet service provider's web cache are infringing copies, though the making of temporary copies such as these is to be permitted under the new European Union Copyright Directive. (It is not anticipated that temporary copies exemption will apply to "ripped" copies of CD tracks stored on a PC or portable MP3 player.)

Note, of course, that the absence of a private copying right in UK law has not stopped the manufacturers of portable MP3 players and compact-disc recorders from advertising them in the UK for purposes which are predicated upon private copying. See also the report, Exposed: The Lie Behind CD and MP3 Adverts from Computing Which?
So there is no private copying right for "media shifting" in the UK? Doesn't the "private study" exception cover this?

There is no right to private copying for "media shifting" (for instance, copying a CD to tape to play in your car or to a computer in MP3 format to play on a portable MP3 player) in the UK. The "private study" exception does not cover such activity. See this mailing list posting by Julian Midgley for more information.

Is this ludicrous? Yes, pretty much. After all, such copying is ubiquitous and is permitted in many jurisdictions. The Consumers' Association is campaigning for the inclusion of such a right into UK law; see their report, here.

Technical Protection Measures (TPMs)

What are Technical Protection Measures?

A "Technical Protection Measure" (TPM) is some piece of technology, typically electronic hardware or computer software, which is designed to prevent acts prohibited by the holder of a copyright, such as unauthorised copying. TPMs are also referred to as "technical measures", "technological measures", "effective technological measures" and other like forms of words. A key part of new copyright legislation, such as the European Union Copyright Directive (EUCD) and the Digital Millenium Copyright Act, is to give legal protection to TPMs and their use by publishers.
What's wrong with TPMs?
The central problem with TPMs is that they may be used to enforce restrictions which are not part of, or contrary to, copyright law. For instance, in UK law there exist limited rights to make copies of extracts of a work for private studying, criticism and so forth. Technical protection measures have no moral sense, and cannot determine when an attempt at copying is a legitimate exercise of "fair use" rights, or an attempt at an infringing act; the result is that all copying, whether permitted in law or not, is likely to become impossible. A well known and controversial example was Adobe's e-Book edition of Alice in Wonderland, which was distributed subject to these TPM-enforced conditions:
- No text selections can be copied from this book to the clipboard.
- No printing is permitted on this book.
- This book cannot be lent or given to someone else.
- This book cannot be given to someone else.
- This book cannot be read aloud.
(See this article from The Industry Standard for more information.) Although it appears that Adobe had imposed these conditions essentially by accident, future publishers might do so deliberately.

Another serious problem occurs at the end of the term of copyright. At this point, works enter the "public domain" and may be copied without restriction. But there is nothing to require a TPM to take account of the expiry of copyright, so works protected by TPMs may never enter the public domain. (Especially if, seventy years hence, the technology upon which the TPM is based is long-obsolete.)

Laws such as the EUCD will make it illegal for the owner of a work to circumvent a TPM even when their only intention is to exercise their "fair use" rights; and in the future, more sophisticated TPMs may be deployed which make circumvention effectively impossible. The upshot of this is that the social contract of copyright is shattered, replaced by a technological monopoly controlled by rightsholders and protected by national law. The widespread deployment of TPMs and their protection in law will be disastrous for the users of copyrighted works.
What are examples of TPMs? Are any in current use?

TPMs can take many forms. Those who used home computers in the 1980s may remember software which was supplied on "copy protected" diskettes, which were an attempt by publishers to make illegal copying (and, incidentally, legitimate backups) impossible by manipulating the format of the disks on which the software was supplied, often by marking parts of the diskette as "bad" or "damaged". This strategy has resurfaced in the form of CDROM copy protection schemes such as Macrovision's "SafeDisc" technology. Macrovision, of course, are famous for an eponymous analogue electronic device intended to prevent copying of commercial video cassettes, "pay per view" television programmes and DVDs. The Sony "Play Station" games computer uses games distributed on black CDROMs, and refuses to play copies of games made on normal blue CDRs without an end-user modification.

The best known current example, however, is probably "copy protected" music CDs which are intended to prevent CDs from being played in computers while allowing playback in hi-fi equipment. In this case, the protection mechanism is to make CDs which abuse some advanced feature of the compact disc standard which is not used by conventional music players but which will confuse a computer's CDROM drive. A typical strategy is to include an additional, corrupt "session" at the end of the disc, following the music tracks. Unfortunately for the consumer, more modern audio equipment recognises and is confused by the corrupt data, and many of these CDs will not play in modern devices such as DVD players, jog-proof portable CD players, and car stereos. Unfortunately for the music publishers, the "copy protection" can easily be circumvented using widely available software such as CD Paranoia (and other programs based on the same code or similar principles) and a reasonably modern CDROM reader. A thorough technical analysis is in this paper (in PostScript) from the Felten group at Stanford.
(Note that these "copy protected" CDs are not CDs in the usual sense, because they do not meet the standards set down by Philips, the originators of the format. This means that there is no guarantee at all that they will work in any standard CD player carrying the trademarked "compact disc digital audio" logotype. All that can be said about them is that they are shiny discs which resemble CDs and whose use might result in music coming out of a CD player. In the UK, the purchaser of a disc is protected by consumer law, and should be able to obtain a refund for such a disc if it is described as a "CD" or as being suitable for playing in a standard hi-fi or other music player. Philips do not permit the publishers of such discs to be mark them with the "compact disc digital audio" logotype; instead, the discs may carry an obscure logotype defined by the International Federation of Phonographic Industries; see this press release for more information.)

CDR has more information about these "copy protected" CDs.

webmaster@ukcdr.org