DIGITAL
RIGHTS : ANTI-PIRACY PROTECTION; EXCEPTIONS FOR TEACHING AND RESEARCH
Report published on 3 July 2003
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I) Digital rights management systems and anti-piracy protection
1 - State of the art and characteristics of digital rights
management systems and anti-piracy protection
a) Review
A review of digital rights management systems and technical devices
for controlling private copies did not secure the unanimous conviction
that these technologies offer the degree of security claimed by
their promoters.
Although protecting digital works is an obstacle to copying them,
none of the available systems to date prevent capture of the analog
signal at electronic circuit level, and hence reproduction in
this way.
Moreover, one possible consequence of the rights management systems
that already exist or are being developed is exploitation of a
legitimate purchaser's personal information that goes beyond the
purpose for which it is gathered. Open and inspectable systems
that guarantee against any technical possibility of abusive exploitation
of personal information could be designed. Certain manufacturers,
some of them French, are working on them.
b) Positions exprimées
Everyone agrees that content providers should be remunerated,
though not without reservations.
i) For some, the risk of an infringement of consumer rights or
freedoms resulting from the use of digital rights management systems
and anti-piracy protection goes beyond what would be acceptable.
They also point out that technical incompatibilities resulting
from the use of protective devices has generated protest from
consumers who, having legitimately acquired for the right to use
a copy of a work, then find themselves unable to use or reproduce
it in the way they want, sometimes without even having been informed
of that risk before paying for the right in question.
ii) Others underline the need to increase the preventive protection
of works in the digital environment, where reproduction resembles
instantaneous, large-scale cloning that can cause considerable
economic damage, threatening cultural diversity. They also point
out that the "copy for private use" exception that legitimate
consumers may assert is not in any way a right to make a full
and perfect copy of a work, even for strictly personal and private
use.
Referring to Article L.122-5-2 of the Intellectual Property Code,
which states that the copy for private use exception may be invoked
only to make copies "intended to be used for purposes identical
to those for which the original work was created", they argue
that the possibility of making a copy for private use could not
be construed as a right to make a copy by any available means.
The fact that rights management and technical protection systems
might not be perfect does not mean that they should be disqualified,
since their aim is not to eradicate all unauthorised reproduction
but to make it more difficult, and to counter industrial copying.
2- The substance of the debate on transposition of EU directive
2001/29/EC of 22 May 2001 on the harmonisation of certain aspects
of copyright and related rights in the information society
a) Context
The directive to be transposed requires Member States to introduce
legislation that makes it illegal to circumvent technological
protection measures, ensures compliance and creates balanced conditions
for guaranteeing users' rights. The standards for such protection
measures will also be determined in an international framework.
b) Positions expressed
i) Some argue that the purpose of legislation is to protect authors
and the public, not to ensure the continuing existence of business
models and value chains if they are called into question by technical
advances or competitors. According to this argument, as information
and communication technologies considerably reduce the cost of
access to digital works, they can change the conditions for producing,
promoting and distributing them. In that case, the legitimate
protection of copyright should not be used as a smokescreen for
attempts to hold back changes in distribution methods and costs,
which are not proper matters for legislation.
In that case it would be best to make haste slowly, as it were,
so as to observe the emergence of new types of behaviour, new
economic and creative approaches, and the outcomes of the many
experiments in progress.
ii)Others point out that, in economic terms, counterfeiting constitutes
unfair competition based on the non-remuneration of authors, and
that on the contrary the purpose of anti fraud measures is to
protect all possible lawful business models.
In that respect, they argue, unjustified restrictions on the
use of digital rights management systems and anti-piracy technological
measures could provide grounds for successful action before trade
and EU authorities.
iii-1) For a third category, if a faultless system for remunerating
beneficiaries is not possible, dues on digital distribution channels
should be introduced, the proceeds going to a fund to remunerate
beneficiaries.
iii-2) The network operators have indicated that they are firmly
opposed to such a measure, arguing that it would contradict Article
5.1 of the EU copyright directive.
II) The "fair use" exception when works are used
for teaching or research purposes
a) Context
On transposition of EU directive 2001/29/EC of 22 May 2001 on
the harmonisation of certain aspects of copyright and related
rights in the information society, an extension of existing agreements
concerning the use of photocopies was envisaged for digital works
of all types (sound and image, still or animated), which are likely
to be increasingly widely used in teaching and research.
Certain European countries (common law countries plus Germany
and Spain) have introduced this extension in the form of a "fair
use" exception to the exclusive right of reproduction.
It may be argued that the attractive financial conditions offered
by English-language publishers outside their domestic market are
possible because their content has already paid for itself on
its original market. The US accounts for over 50% of world spending
on higher education. A wide-ranging fair use exception, as urged
by consortia of American university libraries, is economically
possible in such a context.
In developed countries where a fair use exception exists, a number
of concomitant factors also exist. For example, students are instructed
to buy books, library acquisitions budgets in the US, the UK and
Germany are proportionately two to three times higher than those
of French universities, a larger proportion of GDP is devoted
to higher education (Spain), and the cost of studying is much
higher.
b) Issues and analyses :
The continuing influence of French research, education and artistic
creation depends on the good health of economic players in the
French publishing and audiovisual sectors and on ease of access
to knowledge and French-language works for students and researchers
in France and elsewhere.
The level of authors' remuneration contributes to the vigour
of artistic creation and the production of knowledge.
Distance and on-line learning, especially in higher education,
takes place in a context of global competition.
The administrative and operational costs of enforcing a right
relating to the remuneration of beneficiaries in an educational
and research environment must neither be prohibitive in relation
to the amounts collected nor significantly curtail the possibilities
offered by digital technology.
New avenues are opening up with regard to distance learning,
especially with the creation of virtual campuses and the development
of on-line education.
The current level of acquisitions budgets (digital and physical)
for libraries and documentation centres in French educational
and research establishments does not allow them to compete with
English-language universities.
c) Positions
i) Some, especially the beneficiaries, oppose the principle of
an across-the-board fair use exception, which they condemn as
expropriatory. Such an exception would be inappropriate for the
development of applications and economically intolerable for rightholders.
If university publishing was not remunerated, they argue, the
French branch, already under serious threat, would cease to exist.
They support the introduction of agreements, under the aegis of
the Ministry for Culture and Communication and the Ministry for
Youth, Education and Research, involving the national publishers'
organisation in particular.
ii) Others strongly recommend the introduction of a fair use
exception, arguing that the French university system would be
under threat if the current provisions of the Intellectual Property
Code were applied. Such an exception would not of course be introduced
without a quid pro quo for the authors.
To back up their argument, the supporters of the fair use exception
point to:
- the particularly heavy administrative burden (declaration procedure,
identification of often numerous beneficiaries, etc.);
- the additional financial cost, which would then be a handicap
for research and the preservation of teaching in French.
An evaluation of the financial impact if the current rules were
strictly applied in research and teaching, and a comparison with
European systems where a fair use exception exists (Germany, Spain,
etc.), could give an idea of the admissible financial cost so
that French educational and research institutions, especially
those that have already started or are contemplating an on-line
activity, are not penalised in relation to their counterparts
in other countries.
Done at Paris, 3 July 2003
By the Secretary-General :
CSTI Members
on 26 june 2003
M.
Jean-François ABRAMATIC, M. Bruno BONNELL, M. Thierry BRETON,
M. Bernard CHARLÈS, M. Michel DAHAN, M. Jean-Jacques DAMLAMIAN,
M. Éric DELEVAQUE, M. Stéphane DOTTELONDE, M. Jean
Pierre GLOTON, M. Claude GUÉGUEN, M. Paul HERMELIN, M.
Jean-Marie HULLOT, M. Francis JUTAND, M. Daniel KAPLAN, M. Arnaud
LAGARDÈRE, M. Bernard LARROUTUROU, M. Jacques Le MAROIS,
Mme Anne-Sophie PASTEL, M. Pasquale PISTORIO, M. Jacques STERN,
M. Serge TCHURUK, Mme Agnès TOURAINE, M. Martin VIAL.
