(Versione in italiano di
questo documento)
EUCD in Italy: What to change?
During the past few months, considerable attention has been
generated by the announcement of the draft
of a new decree, which would significantly increase the
price of recordable media such as CD-Rs and CD-RWs. Due to a
delegation given by the Italian parliament to the government,
this decree is soon expected to be turned into a final law,
without any parliamentary debate. The Italian magazine AFDigitale has started an
on-line petition to cancel the increase in the prices.
Unfortunately, the clamor generated by the (highly debatable)
cost increases has overshadowed other aspects of the decree
which are decidedly more important and worrying: in fact, this
decree represents the acceptance of the EUCD
into Italian law, and introduces all the dangerous provisions of
the European directive.
We will now briefly explain the most important aspects of the
decree. We will also propose some changes which, while staying
compatible with the EUCD, could make the decree less dangerous
to the freedom of users, researchers and free
software developers.
A more detailed discussion about the law proposal (in italian)
can be found here.
Prohibition of Compilation and Reverse Engineering
What does the EUCD say?
The EUCD prohibits, in an extremely generalized manner,
circumventing the "technological measures" which limit access
and duplication of copyright-protected works. The member States
of the European Union are requested to give "adequate juridical
protection" against these circumventions, but without any
distinction between those which are made for lawful purposes and
those which are made to violate the copyright.
A restrictive interpretation of the EUCD could seriously
endanger one's ability to use copyrighted works in reasonable
ways: using these "technological measures", the author/publisher
could impose arbitrary limitations in the use of the works, and
any attempt to work around those limitations would be illegal.
It would then become illegal to play "copy-protected" CD-ROMs on
PCs, or to watch DVD movies using "unauthorized" players (such
as the ones which work on GNU/Linux).
Moreover, a company which creates a certain "protected" format
could become the only company legally authorized to develop
software able to handle the format itself. In fact, the
creation of a compatible program necessarily requires
circumventing the "technological measures" which control access
to the data. Therefore, those who write compatible software
(especially if they write free software) would possibly face
large sanctions for an activity which is today perfectly legal.
Further, users would be forced to rely on a single
company/application to handle their data (either personal data,
or legally owned works in digital format).
What does the decree say?
The Italian decree fortunately differs in a few good ways from
the EUCD. In particular, it is less vague; circumventing and
removing "technological measures" is declared illegal only in
those cases where these operations "cause abusive utilization of
intellectual works or protected materials". Also, it explicitly
preserves one's right to reverse engineer software.
Unfortunately, the current version of the decree doesn't specify
what "cause abusive utilization" means, thus creating a legal
uncertainty that favors the party which is legally stronger.
Therefore, the creator of an interoperable application could be
arrested (and sentenced to three years of jail) if his
application could be used by a third party to commit copyright
violations. This could happen even if the programmer had
never committed any such violations.
As a consequence, it is possible that companies which are
annoyed by their competition could legally threaten the creators
of other applications which handle the same data formats.
Moreover, the decree does not protect users in any way. For
them, circumventing any "technological measure" arbitrarily
specified by a company is always prohibited, since it
can be classified as "abusive utilization".
How to change the decree?
It is necessary to change the decree so that its terms are made
clearer, and so as to provide a better balance between the
rights of users and companies. Circumventing "technological
measures" should be prohibited only in those cases cases where
the circumvention is used as a means to commit actual
violations of copyright. This way the circumvention itself (and
the currently lawful activities connected to it) would
not be punishable -- but those who actually
violate copyright by working around "technological measures"
would be accused of a new crime (the "circumvention for unlawful
purposes"), and could be subject to stricter punishment.
Dangers to the Freedom of Research and Expression
What does the EUCD say?
Besides making circumventions of "technological measures"
illegal, the EUCD requires that the member States of the
European Union offer "adequate juridical protection" against the
creation and provision of services and devices which would
facilitate the circumvention itself. The term "provision of
services" includes the distribution of information, and thus the
rules of the EUCD could represent a big obstacle to freedom of
expression.
For example, cryptography and computer security research would
be particularly affected: these studies are based on the
analysis and development of circumvention techniques, and cannot
happen without the free distribution of data and information.
Any report of security flaws or software bugs could be censored,
if considered to "facilitate" any kind of workaround for
"technological measures".
What does the decree say?
The Italian decree strictly enforces these guidelines: offering
devices, information or services which could facilitate
circumventions is punishable as a felony (up to three years of
jail). The prohibition is general: scientific research and
freedom of expression are not protected in any way, even if the
EUCD itself provides some (vague) guidelines for their
protection.
The Italian law is so generic that it could possibly render
interoperable free software illegal. Under this law, a piece of
free software which reads "protected" formats (such as DVDs, or
encrypted PDF files) could be considered a dangerous device
which facilitates circumvention, because it can be freely
modified and reused for any purpose.
How to change the decree?
It is necessary to make the decree protect freedom of expression
and scientific research (both inside and outside the academic
field), as specified in the EUCD. More generally, if the law is
made to prohibit development of devices and provision of
services which can ease "circumventions", it must restrict the
prohibition exclusively to acts of explicit
copyright violation. This way, neither free exchange of
information nor development of software could be punished -- but
those who are responsible for actual copyright
violations could be subject to a new type of crime: "creation
and provision of devices and services which facilitate
circumventions".
Abolition of the "First Sale Doctrine" for Digital Documents
What does the EUCD say?
The EUCD introduces a new exclusive right for
authors/publishers: that of "communicating" their works.
This means that users will not have the right to give away or
resell the software or the e-books obtained/bought through the
Internet, unless they are granted an explicit permission.
Moreover, if the author/publisher decides to stop distributing a
certain digital document (for example, because of an act of
censorship), no-one who has previously obtained a legal copy can
make it available to a third party. Under this rule, it will be
possible to distribute digital documents with "ad personam"
conditions, which establish if and in which ways a document can
be distributed or given away by those who obtain it.
What does the decree say?
The Italian decree follows almost literally the requirements of
the EUCD.
How to change the decree?
The law should provide users with the right to communicate and
give away a copy of the works which they obtained legally. To
make this possible, the law should contain more exceptions to
the author/publisher's exclusive right of communication to the
public, or it should control the terms of use under which copies
of the works are distributed by the author/publisher.
The Users' Rights
What does the EUCD say?
As we already explained, the EUCD gives authors/publishers the
ability to restrict the user's ability to use her copy, through
technological measures. Users' rights could be reduced by
technological systems which are too rigid and invasive. Yet,
the directive doesn't provide any clear rule to protect
consumers; it advises that a generic "mediation" between the
parts be implemented and also mentions "voluntary measures"
which authors/publishers could apply to protect users' rights.
Moreover, the EUCD explicitly says that contents obtained
through the Internet could be protected by any kind of
"technological measures", even if extremely invasive, without
any limitations by the law. With the fast growth of the
Internet as a way to distribute culture, this can potentially
give great power to the publishers. In the USA, for example,
some publishers are distributing school e-books which
self-destruct after the end of the course of studies, without
the possibility of being reused or resold.
What does the decree say?
The Italian decree is fortunately less vague than the EUCD: it
indicates some cases where the owners of the copyright are
required to remove protections which are too rigid (for example,
in the case of copies destined to institutes such as libraries
and schools). It also specifies that the technological measures
must guarantee the possibility of making one backup copy of the
work.
These provisions cannot prevent abuses from the owners of the
copyrights on the works, though. In these cases, the decree is
extremely lacking in the protection of users; it says that any
dispute caused by technological measures that are too invasive
must be evaluated by a "permanent copyright consulting
committee", with a centralization which will certainly be a
source for bureaucratic slowness and annoyances. Moreover, such
a committee does not represent the users in any way; its members
only come from the entertainment and copyright industry.
Last but not least, like in the EUCD, the Italian decree doesn't
put any limit to "technological measures" which limit usage of
works distributed through the Internet.
How to change the decree?
The legal procedures should be simplified, for example assigning
them to the standard judiciary system, without passing through a
centralized committee.
The lack of rules regarding the technological measures applied
to works distributed on the Internet should be corrected by
guaranteeing a certain number of "minimal usage rights" which
the technological measures could not prohibit in any case.
The ideal solution, though, would be to go through a complete
revision of the Italian copyright law, to guarantee clear rights
to the users, and not just to the editors/publishers.
Last modified: Sun Feb 23 18:04:05 EST 2003
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