[A2k] Paris TACD Meeting: Draft 'understanding' on RMI and TPMs

Fri Jun 2 12:37:01 2006

Firstly thanks very much for such a comprehensive reply and for what it
is worth I think these are all good points.

With respect to point 1, you understand corrrectly.

I do understand that there are many groups which object to RMI, TPMs,
and DRMs completely. Basically the point underlying the first draft is
that it isn't realistic for countries to un-ratify the Internet Treaties
(and certainly many representatives of music constituencies would not
wish for that to happen), and therefore in those countries there will be
protections of RMI and TPMs. The question is whether or not we can agree
some common-sense regime to regulate the use of these technologies so
that the positive outweighs the negative.

1(a) Of course. The use or non-use of RMI and TPMs is entirely separate
from any other issue. If services want to use them, they'd have to
'follow the rules'. If they don't wish to, then they wouldn't. That
said, RMI is just information and since quite a lot of that information
could - and indeed is - of interest (artist name, composer, performers,
date recorded, etc) providing it is accurate having RMI attached to a
song isn't actually harmful, which leads us to point 1(b)

1(b) Of course we could put something in to cover the privacy issue. It
may be useful to state that a model which relies upon actual usage to
determine the level of royalties which go to which artists does not
require information about the individuals who use a song. However, I do
take the point that information on users would be held somewhere - and
the disclosure of that information should be regulated. Could you
perhaps provide some language that covers this? I know that you're far
more familiar with this area than I am unfortunately.

1(c) Completely understand what you mean. My language here is frankly a
bit cumbersome anyway. As with 1(b), could I bother you for replacement
language?

1(d) Personally I agree completely. The question is: would such a
requirement actually fulfil the legal obligations that WPPT/WCT parties
have to one another? And, in the EU, would the requirement breach the
provisions of Directive 2001/29/EC? If the answer to  is yes,then we
cannot ask states to go this extra step. We'd have to come at this a
different way.

1(e) Sorry to do this to you again, but any chance for a sentence that
would work for you?

----- Original message -----
From: "Michelle Childs" <michelle.childs@cptech.org>
To: "Nick Ashton-Hart" <nah.maillist@fastmail.net>
Date: Tue, 30 May 2006 08:46:06 -0400 (EDT)
Subject: Re: [A2k] Paris TACD Meeting: Draft 'understanding' on RMI and
TPMs

Nick
Thanks for this helpful first draft. I have a couple of initial
comments:

1) This is intended to be a section in a wider document, but it may
nonetheless be helpful to put it in context.  A number of groups are
opposed to the use of TPMs or RMI's at all. This section, as I
understand
it is drafted on the basis that where they are used( and there are many
on
the market now) , these principles should apply, rather than a wholesale
endorsement of their use?

2) I think it would be helpful to add a few things to the principles you
set out:

a) A caveat that nothing in these principles would prevent the use of
alternative models. For example some providers are using flat fees.

b)In relation to RMI's the issue may not be restricting access but it
does
raise quite profound privacy issues. There needs to at least be a
reference to data protection principles. For more on this see the TACD
resolution on TPMS.( www.tacd.org)

c) you refer to 'Be used to prevent access, or make access unreasonably
difficult, for a use that is covered by an exception or limitation to
copyright in connection with the works and/or performances in question
were they acquired in any non-digital form;' I am concerned that using
as
a benchmark what is allowed for a non digital form may lock in current
non
digital usage ( which are already inadequate for some digital uses)
rather
 than anticipate new uses- this can be dealt with by drafting. Either
remove ref to non- digital form or preferably expand to cover broader
consumer usage. See beuc digital rights  campaign for examples of what
some EU cosnumer orgs have been calling for in this area. Or are you
intending this borader usage issue to be covered by the fair use
principle?

d) Remedies for breach. I  think the current draft misses one of the
most
important points  behind the  pre registration regulatory regime idea,
which is that unless the TPM passes this clearance procedure they DO NOT
BENEFIT FROM THE LEGAL PROTECION AGAINST CIRCUMVENTION. The draft does
not
mention this but instead introduces a new idea that there should be a
trustmark to show that it does comply. Leaving aside whether such a
trustmark is necessary, such an omission  weakens the idea, which is to
both provide a process for review and wide public debate but also an
incentive to comply with public interest and copyright exemptions.

 Under the US and EU copyright laws DRMs automatically aquire legal
protection against circumvention.  The regulatory clearance idea is that
instead of provding automatic legal protection to DRM regimes, vendors
of
DRM regimes or publishers  are required to  first register their
systems,
in order to apply for protection.  Only registered systems would benefit
from the anti cirumvention protections under copyright law.
Regsitration would not be automatic and would involve an evaluation of
the
system and negotiations over features of the system to protect user
rights.

For example, Adobe might apply for anti-circumvention protection for a
particular version of its ebook publishing technologies. In doing so, it
could be asked to explain how the DRM regime will respond to legitimate
uses of the works under public (rather than private) standards for
access.
The legal protection would not then be forthcoming, until the regulator
was satisfied that the DRM regime did not inappropriately restrict
access
to the work

Its therefore important that the link between registration and
protection
is restored in the draft.

 e) While I support the call for a simplified and effective adr system,
under the anti-circumvention provisions in EU and US law the burden is
now on users to enforce their rights if a DRM scheme infringes them,
rather than on rights holders to respect exceptions and prove breach,
which is why its important to reverse some of the incentives as above.I
also think that as a last resort, there should be the legal right to
circumvent such drm, to make use of exceptions and limitations .

I hope these comments are helpful.
Michelle

> --
> [ Picked text/plain from multipart/alternative ]
> Good morning A2Kers everywhere!
>
> For those that do not know me, I'm helping the TACD Secretariat with the
drafting of the Paris Accord for that meeting as it relates to music. My
background is as a music manager, and also the former
> Executive Director of the International Music Managers Forum (which
represents the managers of popular featured artists worldwide);
> during my time at the IMMF - and I'm glad to say that the current
management of the IMMF have continued to work in this area - I was a
strong proponent of the audience - represented by consumer groups - and
the artists - represented by themselves and by those who they have
charged with protecting their interests - working together for their
mutual interests.
>
> I believe that consumers and creators are natural allies who should work
together to see that the commercial exploitation of music serves the two
ends of the "product chain" rather than serving those in the middle who
are supposed to make the music of the world as accessible as they can.
>
> In January of this year, I was asked to speak to the Legal Affairs
Committee of the EU Parliament in a debate on the forthcoming
> directive on IP enforcement. The speech that I made was written by
myself but substantial elements were contributed by the
> representatives of audiovisual performers (FIA), independent record
producers (IMPALA) and music managers (IMMF). Part of that speech was a
rather pointed condemnation of the way in which DRMs are being used by
intermediaries not for ends which actually work for anyone, but for ends
which don't really work - and do harm the interests of many.
>
> Out of that grew an interest by NGOs connected with the music world to
seek a dialogue with consumer representatives on whether we can jointly
agree an approach, politically, in relation to DRM technologies.
>
> As a part of the drafting work I'm helping with for the TACD
> Conference, I have prepared the text below as a starting place for that
discussion. The principles behind it come out of the speech I mentioned,
but at this point it is time to see what others think of it.
>
> It would clearly be a major thing if we could come out of the Paris
meeting with some kind of common understanding of how to deal with DRMs,
and the protection of RMI and TPMs which underpin them. I offer the text
below to you in the hope that it may get us at least part of the way
"there".  If we can get something that we can agree on, we can of course
attach this to the Paris Accord, though I would submit that the issues
surrounding these technologies are so contentious and important that it
merits a separate document of this kind as well.
>
> This text is not sponsored by any NGOs, nor has it been reviewed or
agreed by any of them;  It has been drafted by me, though I have tried
to keep in mind the interests and views of both creators and consumers
in drafting it. I'm sure that all will be very happy to tell me just
what they think!
>
> I'm forwarding the text to CPTech and TACD so that it can be made
available for download since the A2K list doesn't allow attachments.
>
> -------------------------------------------
>
> Rights Management Information (RMI) and Technical Protection Measures
(TPM) when applied to works and performances under copyright are
increasingly protected by law in countries throughout the world, to
comply with the provisions of the WIPO Internet Treaties of 1996. These
technologies when used together are most commonly known as Digital
Rights Management (DRM) and have frequently been implemented in ways
both Consumers and Creators see as harmful to their interests.
>
> Instead of being used to provide essential information about creative
goods, and provide an interoperable infrastructure for the
> development of new business models to make more flexible access to
cultural goods possible, these technologies are used by
> intermediaries to unreasonably restrict legitimate use by the public
without the consent or involvement of the creators.
>
> There is a clear failure of the marketplace to provide
> implementations of these technologies that are constructive,
> interoperable, reasonable, and equitable. Despite repeated calls for a
rethink of the current uses of these technologies by the consumer
movement, creators themselves, and even independent phonogram
> producers, the abuse of these technologies continues =96 indeed, in many
countries, the abuses continue to become more serious.
>
> Creators and Consumers agree on the following principles and believe
that they should be given the force of law in any part of the world
where RMI and TPMs are themselves the subject of legal protection:
>
> That the use of RMI to provide information about a work or
> performance, those who created it, and their rights in their
> creations, is useful, as long as:
> The information is accurate, and;
> The RMI is used to provide information, not as the basis for a TPM. That
RMI be used constructively =96 such as providing the
> =91informational backbone=92 facilitating the development of new business
models that make creative goods available more flexibly, to more of the
public, by helping the development of systems to equitably
> remunerate creators and rights-holders based upon actual uses of
cultural goods in the digital environment equitably and transparently.
That the abusive use of TPMs be prevented by obligating vendors of these
technologies to assure that they cannot:
>
> Prohibit, or limit, access and/or use which is lawful with respect to
the works and/or performances being protected,
> Be used to prevent access, or make access unreasonably difficult, for a
use that is covered by an exception or limitation to copyright in
connection with the works and/or performances in question were they
acquired in any non-digital form;
> Prohibit, or limit, access and uses which would be possible when the
same materials are acquired in physical form,
> Prohibit, or limit, access and uses which would be viewed as =93fair use=
=94
or =93fair dealing=94 by a reasonable person;
> Be deployed without the active, informed consent of the creators and
relevant rights-holders;
> Fail to interoperate across devices like personal computers, mobile
communications devices, and consumer electronics which might
> reasonably be used by the public;
> Prevent access and use, or make access and use difficult, to anything
that is in the public domain;
>
> The extent and nature of any limitations these technologies may
> impose on the user should be clearly visible on any product or
> service so that the members of the public may make informed choices;
>
> We believe that an essential component of giving legal effect to the
above is the following:
>
> A regulatory regime that requires the application for advance
> registration and testing of new TPMs by an independent agency to ensure
that they comply with the rules governing their use as
> outlined above. Successfully passing the tests should allow the
> vendor of the TPM to display a mark that makes clear that the TPM has
been approved and certified, giving the public, and the creator
> community, confidence that any restrictions imposed by the TPM are both
within the law and reasonable;
> In the instance that, despite the safeguards above, a TPM is used which
breaches the above principles, an affordable, expeditious, and
transparent complaint mechanism is available for members of the
> public and the creator community to use. The process should be
> capable of requiring that breaches of the above principles by vendors
and/or those who make use of infringing TPMs must be remedied, and where
relevant, egregious infringements allow for fines to be levied which are
sufficient to form a deterrent to future infringements.
>
>
> --
> Regards,
>
> Nick Ashton-Hart
> PO Box 32160
> London N4 2XY
> United Kingdom
> Tel: +44 (20) 8800-1011
> Fax: +44 (20) 7681-3135
> mobile: +44 (7774) 932798
> email: nashton@spamcop.net
> Win IM: ashtonhart@hotmail.com / AIM/iSight: nashtonhart@mac.com /
Skype: nashtonhart
> Online Bio:   https://www.linkedin.com/in/ashtonhart
>
>
>
>
>
>
>
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--
Michelle Childs -Head of European Affairs
Consumer Project on Technology in London
24, Highbury Crescent, London, N5 1RX,UK.
Tel:+44(0)207 226 6663 ex 252.
Mob:+44(0)790 386 4642. Fax: +44(0)207 354 0607
http://www.cptech.org

Consumer Project on Technology in Washington, DC
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