Freedom Of Expression Vs. DRM — The First Empirical Assessment

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By Patricia Akester

Copyright incentives and rewards to producers of works have been able to exist alongside other values, such as freedom of expression. However, changes in the way information products are being disseminated raise questions as to whether those values remain compatible with the new modes of dissemination.

So far, studies devoted to digital rights management (DRM) and copyright exceptions have noted, theoretically, its legal implications. This research filled an existing gap by looking at the impact of DRM on the ability of users to take advantage of certain exceptions to copyright through empirical lines of enquiry.

Based on a series of interviews with key organisations and individuals, involved in the use of copyright material and the development and deployment of DRM, the study examined how these issues are working out in practice.

While a nightmarish vision of digital lock-up has not materialised, the survey concluded, nevertheless, that significant problems do exist, and others can readily be foreseen:

Conclusion (1): Although DRM has not impacted on many acts permitted by law, certain permitted acts are being adversely affected by the use of DRM.

Some beneficiaries reported limited or no enjoyment of a privileged exception but were not able to provide evidence in support of those claims. Other beneficiaries of privileged exceptions (such as, the British Library and the UK film lecturers and students/researchers community) are being adversely affected by the use of DRM.

For example, data collection within the film lecturers and students/researchers community revealed two problems: DRM protection of cinematographic works is leading to difficulties in extracting portions of those works for educational use and those difficulties are triggering isolated acts of self-help for academic and educational purposes.

Conclusion (2): This is in spite of the existence of technological solutions (enabling partitioning and authentication of users) to accommodate those permitted acts.

This study uncovered that two of the DRM technologies under examination include flexible usage rules allowing for designation of users, user roles or group memberships.

Sun Microsystem’s DReaM addresses, from a technological viewpoint, both user partitioning and authentication, highlighting the fact that certain permitted acts may be enabled by technology. In terms of architecture, Intertrust’s Marlin has a lot in common with Sun’s technology (including interoperability, user partitioning and authentication).

Conclusion (3): Beneficiaries of privileged exceptions who have been prevented from carrying out those permitted acts (because of the employment of DRM) have not used the complaints mechanism set out in UK law.

Amongst respondents of the study, it was found that user representatives were aware of the complaints mechanism but had not tested it, whilst individual respondents were not familiar with it. Certain beneficiaries found it too onerous to utilise the complaints mechanism and other beneficiaries were not aware of its existence. As a result, the UK complaints’ mechanism remains untested in spite of the existence of some problems, with some users finding it too impractical and others being unaware of its existence.

Conclusion (4): Article 6(4) of the Information Society Directive put an onus on content owners to accommodate privileged exceptions voluntarily. Voluntary measures have emerged in the publishing field, but not all content owners are ready to act unless they are told to do so by regulatory authorities.

In the music and film arenas, there is a strong awareness that there is not an obligation to accommodate permitted acts through DRM. This has not led to problems in terms of enjoyment of privileged exceptions in connection to music – unsurprisingly, given the phasing out of DRM in music. But, as reported above, the film lecturers and students/researchers community is being adversely affected by the use of DRM.

Recommendations:

Ultimately, some beneficiaries of privileged exceptions are being adversely affected by the use of DRM and practical solutions are required. Hence, the report proposes that, in the short term, with the help of the empirical findings of the study, the European Commission submits a proposal for two amendments of Article 6(4) of the Information Society Directive, as follows:

(1) A definition of the expression ‘appropriate measures’ should be inserted in Article 6(4) of the Information Society Directive, stating that for the purposes of that Directive such measures require the establishment of a procedure to enable expeditious access to works by beneficiaries of privileged exceptions, leading to the creation of standardised access to works portals across EC Member States.

Beneficiaries of privileged exceptions (such as libraries, lecturers, students and researchers) require access to works protected by DRM, so as to be able to carry out certain permitted acts (and, therefore, take advantage of certain copyright exceptions that are connected to core freedoms).

This implies setting out a procedure (step-by-step and with a clear time-frame) to facilitate access to works by beneficiaries of privileged exceptions, thus enabling optimum use of those exceptions. It implies the need for access-to-works portals (rather than access to complaints portals).

The existence of access-to-works portals would be made possible by a DRM deposit system, according to which the means to enable beneficiaries of privileged exceptions to benefit from them would be deposited and made available through access-to-works portals, in specified circumstances.

(2) It should be added to Article 6(4) of the Information Society Directive that where the means to enable beneficiaries of privileged exceptions (such as libraries, lecturers, students and researchers) to benefit from them are not deposited, the protection of privileged exceptions prevails over the protection of DRM, whether or not works are supplied online.

So, where access to works by beneficiaries of privileged exceptions is not facilitated, the protection of privileged exceptions (given their connection to core freedoms) should prevail over the protection of DRM.

The 208-page report, entitled “Technological accommodation of conflicts between freedom of expression and DRM: the first empirical assessment,” is available here.

patricia-akesters-photoPatricia Akester, PhD, is a researcher at the Centre for Intellectual Property and Information Law, University of Cambridge, where she also teaches. Her research interests lie particularly on the intersection between digital copyright law and human rights.

Creative Commons License"Freedom Of Expression Vs. DRM — The First Empirical Assessment" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.

Comments

  1. says

    “Conclusion (1): Although DRM has not impacted on many acts permitted by law, certain permitted acts are being adversely affected by the use of DRM.”
    That is a contradictory statement.

  2. Stephen Hinkle says

    Patricia,

    I wanted to say that so far DRM has been a total failure throughout history. It did not live up to its promises. First of all, ever since the beginning, DRM never stopped an experienced or determined hacker from cracking the DRM or copying, moving, or altering the protected content. Over a 30 year history, this is true. From the old days of encrypted arcade game boards of the early 1980s, to floppy disk protection being cracked (I still remember Copy II+ for the Apple IIe), to the network serial license checking of the 1990s, to internet activation of products, to music and video DRM of the 2000s, most DRM gets cracked rather quickly. No DRM scheme as stopped an indepedent, non-corporate, or developer outside the software or media oligiopoly from gaining full access to unprotected versions of content.

    More importantly, DRM has made the pirated versions more valuable due to their usability over specifications, even if the quality was slightly degraded. This alone made VHS win over Betamax for home video, as it could record for three hours instead of one hour. A more recent example is MP3, where MP3 files worked on any portable device, any operating system, and with any CD Burning program, and never expired. Compare this to the DRM (WMA or AAC) files of Napster or iTunes, and there are serious compatibility limitations.

    I also beleive that the DMCA was misused, particularly section 1201(a) which deals with anti-circumvention laws. It seemed to me as if media companies were using this law to prevent competition and to only allow legitmate development of technology to a few large companies. Many of the “circumvention” cases were not done for piracy, but instead to prevent development of new features, or to enable people of lesser used operating systems (e.g. Linux, BSD, etc) to access protected content. Sometimes these cases were also done to allow new devices and programs to read new file formats (which may have even given the industry new customers in the long run if they would have not filed DMCA charges). There were other DMCA examples too that did not even involve piracy, but instead were done to allow a DRM based hardware device to run a program created by an indepedent developer (such as the X-Box hacking to run freeware games, iJailBreak, Aibopet, etc). Others violated for things like Emulation to allow a program from one platform to run on another (such as MAME, Virtual Game Station, BnetD, etc).

    I wished that the media industry would learn from these mistakes and reconsider some of these policies at forums like WTO, WIPO, MPAA, RIAA, such as:

    * Regonize that small scale developers who are hobbyists, non-profits, academic researchers, individuals and very small companies have legitimate development power even though they are outside the media oligopoly and that writing their own code to run on a protected or closed development system is not a crime.

    * Regonize the “fair use” potential for remixing and reusing small amounts of existing works. Many types of content ranging from critiques, to documentaries, to home videos, and others requires this.

    * Be willing to work with small scale developers and open source developers when they want to add support for protected content to open source operating systems and the like.

    * 1201(a) should not be used as a tool to create an exclusive club on development and innovation to exclude everyone else.

    * The publics opinion on how techonology and copyright policy should prevail even if the policies the public as a whole are willing to accept is not the most profitable for the biggest corporations and executives.

    * 1201(a) should be amended to exempt uses that would be “fair use” if 1201(a) was not there.

Trackbacks

  1. [...] Intellectual Property Watch For example, data collection within the film lecturers and students/researchers community revealed two problems: DRM protection of cinematographic works is leading to difficulties in extracting portions of those works for educational use and those difficulties are triggering isolated acts of self-help for academic and educational purposes. Comment this post [...]

  2. [...] DRM makes pirates of us all. This is an easy-reading version of Patricia Akester’s own summary of her DRM work. My own take on the issue is that DRM entangles the copyright on a creative work (and copyright is [...]

  3. [...] Cambridge study: DRM turns users into pirates [ Boing Boing] – “A long and deep study of user behaviour in the UK by a Cambridge prof confirms that when an honest person tries to do something legal that is blocked by Digital Rights Management technology, it encourages the person to start downloading infringing copies for free from the net, since these copies are all DRM-free.” [Via] [Full Study] [(Readable) Study Summary] [...]

  4. [...] IP-Watch.org reports on what may be the first emperical assessment on DRM. DRM is currently protected by many nations, including New Zealand. The laws protect arbitrary DRM mechanisms and arbitrary restrictions rather than conventional copyright. The effect of DRM is to expand copyright in favour of the publisher, against public rights and against legal artistic remix. That’s the theory however, and this report goes further into the practical effect after nearly a decade of government protectionism for DRM. A different summary of the report by Techdirt, inside… [...]

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