The XXX Clause is Obscene

This article may be freely reproduced


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 Bertelsmann. 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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