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

[Nick Ashton-Hart]

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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.

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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, 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.


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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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email: nashton@spamcop.net
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