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

[Nick Ashton-Hart]

--
[ Picked text/plain from multipart/alternative ]
Herve:

FYI, When I was coming up with the original draft I was thinking very
much of libraries as regards the provisions listing the things which
TPMs should not do, like:

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;
Of course we can explicitly include libraries. The reason I didn't is
because I was afraid we would then end up with a long list of other
'public good' uses which might at some point actually leave something
important out.

Regards,

Nick

On 3 Jun 2006, at 16:49, Herv=E9 Le Crosnier wrote:

>
>
> =09Good afternoon,
>
> =09I agree with the way Philippe wrote this question.
>
> =09Further, i think we must add one question : the library
> =09exception for archival purpose and for communication
> =09to their patrons.
>
> =09There's some national juridiction (as in France) that
> =09don't grant any specific protection for libraries in the
> =09course of their daily work (for example, tehre's no "fair use"
> =09doctrine, and so a loan prvision is quite a burden for
> =09libraries... and editors wanted them to be far more
> =09a constraint during the negociation phase).
>
> =09Libraries are typical place where rights of users (access,
> =09knowledge organisation, cataloguing, permnanet reference,...)
> =09met with author secondary rights (the right to conservation
> =09of their works when there will be no commercial interest;
> =09the right to be referenced for gaining readership, the right
> =09to be read even by those who can't afford the price for
> =09commercial access,...).
>
> =09So it's not sufficient to say that DRMs must not alter any
> =09legal rights... We must clearly have a specific plac for
> =09libraries. Even if it means that producers must give libraries
> =09a special version with no DRM, and that states must introduce
> =09this on their legal deposit laws.
>
> Herv=E9 Le Crosnier
>
> Philippe Aigrain a =E9crit :
>> Further to exchanges betwene Nick and Michelle on this subject. My
>> impression
>> is that Nick's proposal intention is good, but that it takes a too
>> specialised approach, not addressing some major concerns related
>> to TPM, DRMs
>> or compulsory RMI. Here is a proposal for a streamlined set of
>> points,
>> including one on this last aspect (impact on the freedom in the
>> overall
>> information infrastructure) :
>> ----
>> 1- Rights information should be the enabler of a freely endorsed
>> social
>> contract between creators and users, not a vessel to force TPMs
>> and DRMs on
>> them. Thus, there should be no compulsory implementation of rights
>> information related checks, and no associated locks on usage.
>>
>> 2-  TPM systems must be submitted to the a priori check of the
>> relevant
>> information security and privacy or data protection authorities,
>> and can not
>> be applied to works without the informed consent of their creators.
>> Commercial media carriers and services must provide adequate
>> information to
>> consumers about usage limitations introduced by TPMs and DRMs.
>>
>> 3- Legal usage rights, for instance those expressed as exceptions or
>> limitations to copyright, should always be immediately effective
>> in relation
>> to TPMs : any TPM must implement such rights, and TPMs should not be
>> protected against circumvention when such circumvention is needed to
>> legal or contractually authorised usage.
>>
>> 4- The protection of interoperable access to works (accross
>> devices, accross
>> software platforms) must be such as to guarantee:
>> - the ability of creators to make their works accessible to the
>> widest public
>> including under licenses that grant free access and/or usage
>> rights, and
>> without losing the benefit of redistribution of fees collected
>> under legal
>> licensing schemes
>> - the freedom of software writers to disclose and license under
>> the license of
>> their choice the source code of software that achieves this
>> interoperability.
>> ----
>> Re the comments of Nick on compatibility with existing legal
>> treaties and
>> laws: the only possible problem is with the first part of my point
>> 3 (TPM must
>> a priori ...) and EUCD. Leaving aside the fact that we should
>> never stop at
>> considering needed changes in treaties and laws, the actual
>> transpositions
>> for EUCD show that there is a wide margin of interpretation in
>> implementation. Ireland has implemented this first part of point
>> 3, and
>> several other countries the second part.
>> --
>> Philippe Aigrain
>>
>> Le Vendredi 2 Juin 2006 18:29, nah.maillist@fastmail.net a =E9crit :
>>
>>> 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
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>> _______________________________________________
>>>> A2k mailing list
>>>> A2k@lists.essential.org
>>>> http://lists.essential.org/mailman/listinfo/a2k
>>>
>>> --
>>> 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
>>> 1621 Connecticut Ave, NW, Washington, DC 20009 USA .Tel.:
>>> +1.202.332.2670,Fax: +1.202.332.2673
>>>
>>> Consumer Project on Technology in Geneva
>>> 1 Route des  Morillons, CP 2100, 1211 Geneva 2, Switzerland
>>> Tel: +41 22 791 6727
>>>
>>>
>>>
>>>
>>>
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>>
>>
>> --
>> Philippe Aigrain
>> (message personnel)
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