[FYI] UK - "The XXX Clause is Obscene "

["Axel H Horns" <horns@ipjur.com>]

http://www.theregister.co.uk/content/6/28015.html

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The XXX Clause is Obscene  

By Brian Esler  

Posted: 08/11/2002 at 15:24 GMT  

Last summer, the EU passed a new Copyright Directive, which is 
intended to limit your future ability to listen to, share, trade and 
enjoy digital music, films or books. The UK's proposed implementation 
of that Directive (available at 
http://www.patent.gov.uk/about/consultations/eccopyright/summary.htm 
) appears to have been written solely with industry -- and not 
consumers -- in mind. In short, we all may lose our ability to share 
digital media unless we speak up.   

While there are problems with the Directive and its UK implementation 
which may only be interesting to a copyright lawyer (and I am one), 
there is one provision in particular which should scare everyone 
(except a few global media conglomerates). A new section is proposed 
for the Copyrights, Designs & Patents Act 1988 entitled “XXX.” The 
XXX provision will virtually eliminate all vestiges of fair dealing, 
and eventually of file sharing.   

Here's why. Music and film companies are doing everything they can to 
eliminate file sharing (just look at what happened to Napster). One 
of the weapons in their arsenal is technological measures to protect 
their files -- encryption, copy protection, etc -- ie, digital locks. 
Previously, however, it was not entirely clear that fashioning or 
distributing a key to that lock (ie, a decryption code like DeCSS) 
without the media company's authority would actually be illegal. The 
EU's new Copyright Directive mandates that member states make it 
illegal, but does leave some wiggle room (if you're really interested 
in some of the background to this and why the Directive might itself 
be illegal, see the article here).   

The UK had at least two choices under the Directive -- put the burden 
of protecting consumer rights on the global media companies (where it 
belongs) or put the burden on consumers. The Patent Office has made 
its choice – and is putting the burden squarely on consumers. Under 
proposed provision XXX, if you buy a CD which is copy-protected, and 
it doesn't play in your computer disc drive, or won't download to 
your MP3 player, your only remedy will be to send a letter of 
complaint to the Secretary of State.   

If Mr. Blunkett in his magnaminity (and spare time) decides that you 
actually should be allowed to exercise your legal right to play the 
disc you bought, he will then send a letter to the offending media 
giant instructing it to ensure that you (and probably only you) are 
able to play the bloody disc. If Bertelsmann tells him (and you) to 
take a long walk off a short pier, only then will you (but no one 
else who may have experienced the same problem, but failed to contact 
the Secretary of State) have the right to hire a lawyer and sue 
Bertlesmann. How many people do you think are actually going to go 
through the bother?   

The burden must be on industry to comply, not for consumers to 
complain. Section XXX of the proposed changes to the Copyright Code 
should be altered to make clear that media companies cannot employ 
technology which does not allow for existing fair dealing rights, 
including time-shifiting, and that circumvention of that technology 
is permitted to exercise any exception to copyright. UK law should 
also make clear that home copying by consumers is a right, not a 
privilege. Consumers should not have to complain to the Secretary of 
State before being allowed to sue when sold a defective product -- 
and any digital product that does not permit the full exercise of all 
copyright exceptions is such a defective product.   

© Brian Esler 2002. The right of Brian Esler to be identified as 
author of this work has been asserted by him in accordance with CDPA 
1988. This article may be freely reproduced.  

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