The European Union is currently discussing a reform of its copyright system, including making mandatory certain copyright exceptions, in order to introduce a balance into the system. However, no one, except MEP Felix Reda, is paying any attention to one of the biggest obstacles to the enforcement of copyright exceptions in the digital age: technological protection measures (TPM), including digital rights management (DRM). In this blogpost we will present the reasons why the European Parliament should not lose this opportunity to discuss a reform of the EU anti-circumvention rules.
No balance between anti-circumvention prohibitions and users rights
The InfoSoc Directive incorporates rules regarding the protection of TPM in articles 6 and 7, which do not adequately take into account users rights created by copyright exceptions and limitations. First, Member States are only obliged to guarantee that users can access and use a TPM-protected work in relation to a closed-list of “privileged exceptions”. Beneficiaries of the remaining exceptions are not able to exercise their rights when a work is protected by TPM. Second, only certain privileged users—those who already have legal access to the work—have the right to require the technical means to benefit from the selected exceptions. Finally, the rules that are aimed to protect users do not apply to on-demand online services.
According to the European Parliament’s 2015 impact assessment study, the EU anti-circumvention rules are intend to restrict the exercise of users rights under the exceptions:
The very narrow scope of application of this mechanism evidences a clear intent of the InfoSoc Directive to restrict considerably the enforcement of copyright exceptions in light of their increased economic impact in the new electronic environment (cf. Recital 44). (pg. I-84)
When anti-circumvention laws were drafted at the international level, they were expected to protect TPM insofar as they restricted acts not authorized by rightsholders (see article 11 of the 1996 WIPO Copyright Treaty). In the EU these laws are completely blind to the intent of the users: users are prevented from circumventing technological measures regardless of whether their aim is to infringe copyright or to exert their legal rights under the copyright exceptions.
Essentially, technology controls law, with little or no recourse for the user. This situation is unfair and costly to users and society, who lose out on the opportunity to exercise the rights that should be guaranteed to them. According to the above-mentioned study, the interaction between the use of TPM and available exceptions and limitations causes inefficiency of the current EU copyright framework structure and is, thus, a source of cost incurred by citizens, society and stakeholders (see pg. I-47).
How TPM is blocking the use of works under copyright exceptions
We’ve attempted to find data on the daily impact of TPM on users rights. Unfortunately, as with many other aspects related with the impact and effectiveness of the InfoSoc Directive, there is not much data available. Or at least not that we know of.
Fortunately, the European Commission’s 2016 impact assessment study, on digitally supported education and training practices, includes an analysis of the (rather dramatic) effects of TPM on users. In the study, technological restrictions were characterized as the most frequently encountered copyright-related obstacle by users of digital works in education: 31,2% of educators and 36,9% of learners stated that they “are not able to access, download, use or modify a digital work because of technological protection”.
More than one third of the educational community surveyed said they cannot access and use—at least not immediately (when they need it)—works protected by technological measures. So even if we continue advocating for better educational exceptions, if we do not review the current anti-circumvention provisions, a robust educational exception will not make the life of teachers and students easier. The same can be said of any other copyright exception where TPM can inhibit or block altogether the access of prospective beneficiaries.
Mechanisms for using TPM-protected works are lacking in 20 Member States
Under the InfoSoc, Member States are obliged to ensure that TPMs do not prevent users from benefiting from copyright exceptions. Data on the national implementations of the EU anti-circumvention rules laid down in articles 6 and 7 of the InfoSoc Directive is limited, but we know that the mechanisms available to end-users to benefit from copyright exceptions varies widely between Member States. Worse yet, apparently the majority of EU countries do not even have such mechanisms in place.
In the 2016 study mentioned above, on the impact of the European copyright framework on digital education, local copyright experts said they “have not been able to identify clear mechanisms which may be activated for using TPM-protected works under exceptions and limitations” in most countries. The study is not referring to the use of works under specific educational exceptions, but under any copyright exception.
Mechanisms available to end-users to enforce their rights to use TPM-protected works were only identified in 8 EU countries, which means that 20 EU countries are doing nothing to ensure that their teachers, librarians and citizens can enjoy their rights under national copyright exceptions.
Even where such mechanisms exist, they can be very burdensome. In Germany, Spain and Sweden it is necessary to go to court to defend practices that should be guaranteed in order to exercise exceptions to copyright. In France, Italy, Lithuania, Latvia, Norway, Slovenia, and the United Kingdom, it is necessary to file a complaint with the relevant authorities or open a mediation procedure (see Table 7, pg. 63 of the 2016 study). Of course, this all takes time and effort, and thus is not providing the necessary access to users.
Circumvention must be allowed, and some Member States already know it
The European Union has distorted the anti-circumvention principles completely. As a result, it does not matter if the user has a right to use a TPM-protected work under a copyright exception; the user will only be able to exercise such a right if she also has the right to require the technical means to access the work. In the words of the authors of the 2015 study, commissioned by the Parliament:
(T)echnological protection and a newly created access right could progressively replace copyright law and, even more important, prevail and restrict copyright exceptions and limitations. (pg. I-82)
It is clear that the current EU solution for the protection of TPM limits the effectiveness of users rights, and therefore, as we argue in our policy recommendation #7, “circumvention of TPMs must be allowed when exercising user rights created by Exceptions and Limitations or when using Public Domain works”.
Some Member States already decided to deviate from the anti-circumvention rules contained in the InfoSoc. For instance, Poland never implemented such rules, and Portugal just revoked them, after learning of the constant obstacles faced by users and hearing from local representatives of rightsholders that they did not have the technical means to ensure that local users could enjoy their rights under the exceptions and limitations.
So, MEPs what are you waiting for?