Private copy – threatened from extinction

The eu copyright directive sets the "protection of technical measures" too high

Almost unnoticed by the office, the eu council of ministers in april adopted the directive on the harmonization of certain aspects of copyright and related property rights in the information society. This will lead to a significant expansion of copyright monopolies – at the expense of the "free flow of information".

Property obliges. This statement applies to copyright for its importance for democracy in particular mab. But the lehre principle is under prere. Because the cafeteral legislation, which should ensure a costly participation of the general public in copyright content, are increasingly in the background in the newer legal developments. The copyright policy ranks seamlessly into this development. However, she also lets the implementation in german law. In order to prevent another march of the industrial lobby against the private copy, the mobilization of an imperfection is indispensable prerequisite.

Exceptions and restrictions apply…

After years of discussion, it is now there, the final catch of the long-confidential copyright policy for the information society. On the one hand, the directive relies on the union’s obligations with regard to the wipo operating (wct, wppt) from 1996. On the other hand, the directive will bring harmonization with a view to some key copyright ies in which strong differences in the european member states prevail so far.

In the run-up to the adoption, the regulations on the copyright barriers in kind. 5 the directive provided for lively discussions, from the 8 exemptions provided for in the original first draft of the commission, the final version has become 15. This appears impressive at first glance. The guidelines differentiate with the private copy chranard in kind. 5 abs. 2 between analog and digital copies, each is provided that the right holder has one "fair compensation" must receive. For digital private copies, however, the exception of the author’s prohibition law "without prejudice of operational, reliable and effective technical measures to protect the interests legal holder".

What is meant by this is by type. 6 of the guideline clarifying with the "protection of technical measures for the perception of rights" donated. And here the problems start.

…Without prejudice to technical measures to protect the interests of the right holders

Kind. 6 of the directive sees a regulation on the "protection of technical measures and information for the perception of rights" before. This novel regulation goes in kind. 11, 12 wct or. Kind. 18, 19 wpt treaty back. Thereafter, technical protection measures are subject to special legal protection. For this purpose, in particular, watermarks, rps and similar copy protection mechanisms.

To the politically controversial points of the directive in advance the question in which relevance of the protection of technical measures on the one hand and the copyright barriers and in particular the private copy chr. On the other hand. The wipo contract is neutral at this point, the commission had given the priority in its first directive draft for private copy characters, technical protection systems should therefore not oppose the legal duplication possibilities. In such a regulation, a circumvention of technical protection systems has always been quite difficult if the subsequent duplication has been involved by the barriers. The european parliament had taken the opposite point of view, and the technical protective measures summarized the priority. Only where the production of multiplication prints is possible without unlawful bypassing of technical protection measures, if it is covered by the barrier regulations and therefore legal.

The final catch of the directive has in this delicate question in kind. 6 abs. 4 now taken a middle ground. As a matter of principle, the technical protection measures should take precedence over the barrier regulations. The right holders should be based on the basis of "volunteer" agreements take mails that allow multiplications within the meaning of the barrier regulations. If the right holders do not meet such measures, the member states are obliged to enforce the barriers in favor of public libraries, schools, disabled facilities, but also copies on paper despite technical protection measures.

With regard to the politically strong controversial digital private copy chranard of the species. 5 abs. 2 b, on the other hand, is only intended for the member states to be tangible if no voluntary measures are made by the right holders. So if the rightholder has provided the appropriate means, a private duplication of digitized content may be made in the presence of technical protection devices. If there is no voluntary permission, a privately accepting scheme is optional by the member states. This extensive restriction of the private copy chrani was not prescribed by the wipo tolerated, it is the result of the loud influence of the rights recovery.

The drafts of the federal ministry of justice on the implementation of the directive to german law can therefore be expected with tension. The continuity of a legal possibility of private copy even with digitized content will only be achieved with a corresponding accommodation, because the professional lobbyists of the right holders are not less strongly represented in berlin than in brussel.

Effective technical measures

The protection of technical measures is not only a long time in terms of digital private copy. As "technical measures" denotes the guideline in kind. 6 abs 3 "all technologies, devices or ingredients which are intended to prevent or redirect works or other protective objects that have been approved by the person who have not been approved by the person who have been authorized…) is."

The technical measures can thus be carried out in addition to the functions for the "normal operation" other functions also sleep without the scope of the species. 6 of the policy. First decisions in the us, which are based on a comparable provision of the digital millenium copyright act, confirm the criticism of too far-made protection regulations for "technical measures". The decision of the u.S. District court for the southern district of new york (sdny) in the much discussed "decss"-decision made clear that "technical measures" beyond copying protection, also to a monopolization of technical standards can be used.

First american judgments let bad flourishes

The court had forbidden it to a group of european programmers to spread the program decss on the internet. With decss, it is possible to view dvd movies on dvd players, which do not have licensed css straightening technology. Due to the css (content scramble system), the dvd industry covers its films such that only such dvd players should be capable of choosing the decision-making code by means of a license. The technology thus serves, among other things, to restrict the market of the dvd player to appropriately licensed devices.

The convicted european programmers had created the decss program through a reverse engineering of the css software, with the goal of being able to view dvd movies on gnu / linux-renewed computers. There was no css-licensed dvd player on the market for this operating system at this time. The judge supported his decision on the "digital millenium copyright act" (dmca) from 1998. In its section 1201 (a) (2), the offering of technology is prohibited which "primarily" the circumvention of effective technological arrangements for the protection of copyrighted content is aimed at. ("no person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that is primarily designed or produced for the purpose of circumventing a technological measure that effective controls access to a work protected under this title.") such a wide interpretation of protection "technical measures" rights thoughtful. Finally, css involved in a restriction of the interoperation alitat of the dvd technique with certain non-licensed dvd players.

By means of "technical measures" so can also be controlled access to market. In order to avoid participating in small and middle-class companies in the technology markets of the future, the definitions of the "technical measures" in the implementation of the directive into german law therefore possible to be closely. "Technical measures" should only be amed by a circumstance ban with regard to the protection of copyright content, but not in such functionalities that interoperate the interoperability with other hardware or software components. Also on this question you will have to be adjusted to a professional work of industrial books.

Axel metzger is a lecturer of the university of hamburg and basic member of the institute for legal ies of the open source software (ifross).

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