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Chipping away at TPMs - April 8, 2008

Copyright owners in the U.S. may be holding the line on prohibitions against circumvention of technical protection measures (TPMs), but cracks in the dike continue to pop up around the world. The latest chink appears in the august façade of the British Library, which on Tuesday issued its recommendations on "fair dealing" to the U.K Intellectual Property Office, which just closed a "consultation" on the issue.

According to the Library, "digital is not different," from traditional forms of media with respect to the limitations that should apply to the rights of copyright owners. Thus, all current exemptions, such as copying for archival purposes, research, news reporting, etc., should apply equally in the case of purely digital works as to printed works.

The Library, which functions as the quasi-official national library of Britain, surveyed (PDF) some 350 researchers on the issue, 93% of whom said access to online research material should be the same as for books. Some 87% said they should be able to use exceptions and fair dealing in the digital age, and 68% said they saw no need for separate fair-dealing laws for digital works.

Although the Library did not address the issue explicitly, its recommendations, which are likely to carry great weight with the government, implicitly endorse the circumvention of TPMs: Since many digital works come with digital locks, the only way researchers could exercise their fair-dealing right would be to break the lock.

While the Library was specifically addressing the needs of researchers and archivists--not necessarily the rights of consumers--content owners would no doubt be chagrined to see any legislation that permitted the possession and use of circumvention tools in any circumstances.

In which case, they're likely to be even more chagrined by developments in New Zealand. The Kiwi Parliament is poised to pass a new copyright law that, if enacted as it's currently drafted, would make explicit what the British Library leaves implicit: legalization of circumvention and the possession of circumvention tools by researchers, archivists, educators and similarly "qualified persons."

Circumvention would be allowed for "permitted acts," which are roughly similar to the fair-dealing exceptions in British copyright law.

Canada, meanwhile, continues its tortured and torturous path toward ratification of the WIPO Copyright Treaty, now 12 years on. The government's latest case of paralysis on the issue was recently the subject of a panel discussion at the Fordham International Intellectual Property Law and Policy Conference. Noted Canadian copyright expert Howard Knopf, who appeared on the panel, has a nice write up on P2PNet here.

The bottom line was that there was little reason for optimism that implementation will be enacted anytime soon. Even when it is, moreover, there appears to be little chance that the bill will include anything like the protection of TPMs included in the American DMCA.

By themselves, none of these developments are fatal to content owners' hopes of keeping the world safe for DRM. But each reflects a growing consensus among policy elites around the world that the U.S. model enshrined in the DMCA--an outright and airtight ban on the use of circumvention tools regardless of the purpose--went too far and is not required by the WIPO Copyright Treaty.

And who knows? A little crack here, a little leak there, and starts to make sense to just get out of the way of the deluge.



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