[A2k] Paris TACD Meeting: Draft 2 on RMI and TPMs

[Nick Ashton-Hart]

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[ Picked text/plain from multipart/alternative ]
I hope everyone is having a good weekend!

I have pleasure in providing below the second go-round of language on
an understanding between consumer and creator representatives on RMI
and TPMs. I hope very much that those who made so many positive
comments feel that I have incorporated the spirit, and in some cases
the actual words, that they have suggested. In other cases, for
reasons I have previously mentioned, I had questions as to what was
meant and/or worried that using the exact language would in fact
actually reduce the scope of the conditions attached to TPM usage.

Of course further comments are most welcome, and please let me know
if I've gotten anything wrong. I'm forwarding a Word version, which
uses Word's revision tracking feature so all the amendments can more
easily be seen between versions, to CPTech for posting.

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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, or, for example, as the basis of 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 or the
public =96 on the contrary, usually over the strong objections of both.

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, provided:
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
Prohibit, or limit, access and uses which would be possible and/or
permitted 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, or without successfully passing through the
testing process referenced below;
Fail to interoperate across devices and/or platforms like personal
computers, mobile communications devices, and consumer electronics
which might reasonably be used by the public. In particular,
interoperability must protect:
                                                i.     The ability of
the creator to make his works or performances available under any
licence terms he or she wishes;
                                              ii.     The freedom of
software developers to disclose and licence under any terms whatever
the source code which helps achieve interoperability;
Fail to comply with data protection rules or privacy rights
generally, and in specific use registration or other personal
information for secondary purposes without first obtaining the
individuals' informed and voluntary consent. Failure to grant such
consent shall not prevent the individual from using the creative
goods in question;
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, both when released and at any further time. This
presupposes that retesting would take place in advance of material
alterations of the TPM being introduced in the marketplace (i.e.
upgrades as technology develops). No TPM which fails to pass through
the testing regime should be used in the marketplace; conversely,
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 the TPM is both within the law and =94follows the rules=94;
In the instance that, despite the safeguards above, a TPM is used
which breaches the above principles, any circumvention for a purpose
or in connection with a use allowed by law or which is integral to a
use permitted by the principles above-referenced shall be made
lawful. Further, an affordable, expeditious, and transparent
complaint mechanism must be available for members of the public and
the creator community to use against the vendors and/or suppliers
which use such TPMs. 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.


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Regards,

Nick Ashton-Hart
PO Box 32160
London N4 2XY
United Kingdom
Tel: +44 (20) 8800-1011
Fax: +44 (20) 7681-3135
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