A burning issue for online copiers

By RICHARD POYNDER

31 January 2002

Throughout history, the law has had to adapt to technological advances. When video recorders became popular in the 1970s US film companies sued Sony for contributing to the infringement of their copyright - but the courts ruled that the copying of films for personal use was permissible under existing laws. A similar conclusion was reached when record companies sued Amstrad for launching the first tape-to-tape audio cassette recorder.

However, as the pace of technology has accelerated, legislators have sought to pass new laws rather than rely on existing ones. When it comes to protecting information on the internet, some believe legislation and technology are on a collision course, with consumer rights in the middle.

Both the US and Europe have moved to establishing copyright for information held in digital form. Last year the US passed the Digital Millennium Copyright Act (DMCA), while the European Union has issued a copyright directive that will lead to similar laws being introduced in Europe by the end of next year. The EU has also passed a database directive, creating a new sui generis database right designed to prevent unlawful extraction of data. This was implemented in the UK in 1998 as the Database Right.

Driving these new laws is the realisation that, once digitised, information is far more vulnerable, particularly when it can be flawlessly copied and transmitted on the internet. In short, says Richard Chapman, an information technology lawyer at Berwin Leighton Paisner, the law firm: "It is far easier to copy digital information than it is to protect it."

Content providers have also acted to protect digital information by developing new digital rights management (DRM) tools. These use encryption, software keys and electronic watermarking to restrict access to digital content and prevent unauthorised copying.

But in giving content owners greater control over how content is accessed, DRM swings the balance of power from consumer to content owner. And the new intellectual property laws support this shift.

Under copyright law, for instance, consumers have always been allowed to exercise "fair dealing" rights - permitting them, say, to use portions of copyrighted text without the permission of the copyright owner. Similarly, courts have generally accepted that consumers may make copies of purchased content for personal use.

But once content is locked behind DRM padlocks, consumers are unable to copy it without using sophisticated decryption tools. And since laws such as the DMCA outlaw the circumventing of protection mechanisms, the ability of users to exercise fair dealing rights has been undermined.

"The DMCA is having the effect of eviscerating the concept of being able to make fair use of the material that you legally possess," says Barry Steinhardt, associate director of the American Civil Liberties Union. "Further, it is not preserving intellectual property rights but expanding them."

When enacted into national laws the European Copyright Directive is expected to attract similar criticism. "The situation will vary," says Charles Oppenheim, professor of information science at Loughborough university. "In some countries, fair dealing will remain pretty much unscathed. In others, there will be a drastic reduction in the ability of users to copy for private purposes."

There is also growing unease about the European Database Directive. "The law is very widely drafted indeed," says Hugh Brett, a specialist IP lawyer at inter-national law firm White & Case. "Practically anything you copy from your computer screen is likely to be an infringement of the Database Right."

The problem is that, in trying to keep up with technology, legislators often fail to foresee the social consequences of new laws. New statutes are also in danger of colliding with the next wave of development. The DMCA, for example, came into effect in 2000 but many believe it was overtaken by the popularity of Napster, the renegade online music service that was shut down by the courts last year but is now a small commercial business, and of CD-Rom burners, which allow consumers to copy music compact discs to the hard disc of their computer and then transmit them over the internet.

Rather than continually pass new laws, some argue, it would be better to let the market come up with solutions. Since this approach, too, would affect long-established legal rights, it is a controversial one. "If we do nothing, then rights will change," says Lawrence Lessig, professor of law at Stanford Law School. "And we should no more allow changes in technology to overturn constitutional rights than we should allow a coup by the military to overturn constitutional rights."

Phil Agre, associate professor of information studies at UCLA, however, suggests the conflict is not between the law and technology but between different ideas of how law and technology should be shaped. "The correct procedure is not simply to argue whether rights should stay the same but ...to analyse in a rational way the reasons for those rights and then use that analysis as the basis for an argument about the particulars of new technologies or laws," he says.

Consequently, he adds, laws should not be passed until their social ramifications have been fully debated. "Law generally codifies the outcome of collective problem-solving processes in society and new laws should not be established until society has had a chance to work the problems through."

Meanwhile, as consumer rights are diluted, public dissent is growing. And attempts by the film industry to use the DMCA to stop online magazines linking to software designed to decrypt the protection system on DVDs have attracted protest. "Using the DMCA to order these magazines to take down such URLs is a serious free speech problem," says Eugene Volokh, professor of law at UCLA.

"One is tempted to conclude that people are legislating before thinking," says Myles Jelf, a senior associate lawyer at Bristows, the London IP law firm. "A better approach might be to wait and see if the existing legal framework is working adequately before passing new laws."

Interestingly, the UK Database Right was passed by means of a statutory instrument. As such, there was no debate in parliament and the law sank into relative obscurity - until this year, when the British Horseracing Board successfully sued bookmaker William Hill for infringing its database rights. Overnight, the Database Right has become as potentially significant as copyright itself, possibly of greater importance.

And with the William Hill decision on appeal at Strasbourg, there is a growing suspicion that, in their rush to keep up with technology, legislators may have misfired. After all, says Prof Volokh: "Giving people a property right in [what are] essentially facts poses pretty serious problems."