The UK looks set to get its own version of the controversial Digital Millennium Copyright Act (DMCA), following the publication of proposals to implement the EU Copyright Directive into UK Law.
In the US, the DMCA has received widespread criticism for restrictions which, among other things, have been used to stop researchers from lecturing on anti-copying technologies and from publicising holes in those technologies. A deadline of 31 October has been set for responses to the UK consultation document; under European law, the new rules have to be incorporated in law by 22 December.
Significant changes include new legal protection for digital watermarks, copy protection systems and other technological measures used to protect copyright material online. There are also new offences aimed at combating Internet piracy. But the most contentious part of the new rules is that which mirrors the DMCA's outlawing of devices intended to circumvent anti-copying technologies, including those used in DVDs.
In May, the US hacker magazine 2600 lost its bid to appeal a ruling banning it from posting code that can be used to crack DVD copy protections. The code, called DeCSS, is a program that allows DVD movies to be decoded and played on personal computers. In particular, it means owners of DVD movies could play them on Linux-based PCs.
Under Article 6 of the Directive, the UK and other member states of the EU have an obligation to provide legal protection from the circumvention of technological measures -- such as encryption -- designed to prevent the infringement of copyright.
There is also an obligation under this article to provide protection from the manufacture and distribution of devices marketed as being primarily designed for, or offering only a limited commercially significant purpose other than, the infringement of copyrights.
The UK government says that such obligations will not be affected by responses to the discussion paper. "Respondents (should) bear in mind that this consultation is not about whether the requirements of the Directive itself are appropriate," the Patent Office said in an explanatory note. "The Directive has been agreed, is in force, and cannot be changed at this time."
But measures such as that providing protection from the manufacture and distribution of devices that can be used to circumvent copyright may be difficult to prove in practice, according to city law firm Olswang. In an advisory note on the legislation, Olswang said that anti-encryption technology, for example, might be useful for a wide variety of purposes, many of them legal. "The enforcement of the provision may be as difficult as the enforcement of a provision against the manufacture or distribution of knives, but only such knives as might be used in an assault."
The history of legal action against technology such as video tape recorders suggests that the judges will be aware of the potential overreach of any sections enacted to give effect to Article 6 and read them restrictively, Olswang added. "It is possible that such sections will be effective against only those most flagrantly promoting the infringement of intellectual property rights."
The government plans to amend the rules contained in the consultation document to the Copyright Designs and Patents Act 1998.
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