FC: Electronic Frontier Finland criticizes EU on patents, copyrights

From: Declan McCullagh (declanat_private)
Date: Tue May 27 2003 - 07:36:22 PDT

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    Date: Tue, 27 May 2003 16:12:02 +0300
    From: Kai Puolamaki <kaipat_private>
    To: declanat_private
    Subject: [to Politechbot] Statement on the proposed IPR enforcement 
    directive by EFFI
    X-PGP-Key: http://www.iki.fi/kaip/pubkey.asc
    
    Hello,
    
    Electronic Frontier Finland ry (http://www.effi.org/, EFFI) has
    submitted a statement regarding the proposed EU directive on IPR
    enforcement. The proposal has been described "too lenient" by media
    industry groups and, unfortunately, by many MEPs. Please find the
    following for consideration for publication in Politechbot.
    
    Best regards,
    Kai Puolamäki
    
    PhD, Researcher
    Helsinki University of Technology
    
    Electronic Frontier Finland ry (member of the board)
    
    
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    http://www.effi.org/julkaisut/lausunnot/ipr_enforcement_lausunto.en.html
    
    EFFI: STATEMENT ON THE PROPOSED IPR ENFORCEMENT DIRECTIVE
    
    Abstract:
    The EU Commission proposes a new directive that would increase the
    monitoring of copyrights and patents. The proposed directive is based
    quite unilaterally on studies made for the media industry. For
    example, the proposal compares piracy to drug trade and terrorism,
    punitive damages are proposed and it is proposed that defendants
    should pay the publication of judgements in the newspapers. Electronic
    Frontier Finland ry (EFFI) has submitted a statement on the proposed
    directive.
    
    **********
    
    [Translated to English on 27th May 2003.]
    
    To the Ministry of Transport and Communications
    
    Statement on the proposed IPR enforcement directive
    
    Electronic Frontier Finland - EFFI ry
    
    General remarks
    
        EFFI considers the proposed directive mainly unnecessary since the
        current legislation on intellectual property rights requires already
        that sufficiently efficient judicial protection is incorporated into
        national legislations (e.g. TRIPS). However, because it seems apparent
        that the directive is really attempted to be made into force we want
        to comment some parts of it.
    
        We are especially concerned of digital products, which the directive
        compares to e.g. medicines, alcohol, toys and car parts. We naturally
        wish that piracy and counterfeits are efficiently weeded out when it
        is a matter of safety and the health of individuals. However, we
        cannot agree with the assumption that the same rules should apply also
        to digital products.
    
        Notably the "studies" behind the proposed directive are not about
        safety or health but of digital products. The most used source seems
        to be the statistics of the Business Software Alliance (BSA) regarding
        the possible markets and employing effects of computer software.
        Generally speaking, using material produced by various interest groups
        indicates bad administrative practice. EFFI thinks the commission
        should have first conducted politically neutral background studies
        with impartial research institutions.
    
        The BSA statistics have among other things severe methodological
        problems. For example, the alleged loss figures of software and media
        industries are based on assumptions that one pirated copy would
        correspond to one purchased copy and that these imaginary profits
        would be used to hire new employees. In reality the media industry
        also benefits significantly from piracy in Eastern Europe e.g. because
        of network effects and brand dispersion. On the other hand, the media
        industry does not really employ directly others than administrative
        people and lawyers lobbying new laws like this one. Moreover,
        alternative business models for digital products that are not based on
        license fees (e.g. open source computer software, various marketing
        strategies) have not been taken into account when calculating the
        alleged losses.
    
    Law making cannot be word play
    
        The language used in the proposed directive is especially worrying.
        The official documents are widely referenced and they should therefore
        be written using appropriate language and claims should be supported
        with references to neutral studies. If the only available statistics
        and studies are from various interest groups (for example because of
        monopoly situation) one should be especially careful with the source
        critique.
    
        This directive does not fulfill these minimum requirements. The
        strangest thought in this proposal is connecting piracy to organized
        crime and terrorism. A word play like this is nothing new to the media
        industry interest groups. The proposed directive claims without any
        reference (p. 12) that e.g. "piracy - - goes hand-in-hand with
        organized crime", "...laundering earnings", "...are even said to have
        become more attractive nowadays than drug trafficing" and "...factor
        in promoting crime, including terrorism". These allegiations have not
        been accounted for in any way. We can only wonder the courage of the
        drafters of the proposed directive to rely so strongly on the
        political rhetorics of only one party.
    
        To exaggerate a bit, we could argue that one should have more severe
        penalties for travelling without a valid ticket in public transports
        since the current small penalties for free riding encourages crime.
        Let us also remember that drug trade and terrorism are crimes and see:
        travelling without a ticket is connected to terrorism and drugs! With
        this kind of reasoning it is of course easier to gain political
        support for the legislative initiative. Of course, it was not
        mentioned that if the price of the ticket is too high and if the
        penalties are unreasonable a part of the passengers will walk or cycle
        - which might have beneficial health effects for the society as a
        whole.
    
        The choice of words create impressions and impressions become in time
        "truths" unless they are questioned. Even though the language of the
        directive is in some parts quite humorous it is still a serious and
        far reaching matter. Therefore EFFI thinks that Finland should point
        out the language and at least suggest that the flagrancies in pages
        12-13 are written anew.
    
    Detailed comments
    
    Punitive damages (article 17)
    
        Finland and other EU countries have so called full compensation
        principle. The occured damage is compensated fully, no more and no
        less, unless there are special reasons to settle down the
        compensation. For example in copyright violations the starting point
        has been the normal licenced price of the product and the damages have
        been settled down if the compensation would have been unreasonably
        high (e.g. piracy BBS cases). It is also important to remember that
        the copyright holder benefits more from compensation than license
        sales since in the case of compensation there has been no need to pay
        the production costs or taxes.
    
        The proposed directive diverges from this principle significantly.
        According to article 17 the basis for compensation should be two times
        the regular licensing fee. There is no mentioning of any settling
        principles. Alternatively the article proposes a compensation that
        would be based in addition to the licensing fees to the incomes that
        would possibly have been earned without the copyright violation. A
        proposal like this would lead to the strange situation that opposing
        piracy could become a profitable business. In this form article 17
        would "legalize" the calculations of BSA that could apparently be used
        as such for the basis of compensation in legal judgements.
    
        The idea of punitive damages is therefore not only unreasonable but
        also possibly against the principles of the criminal law. EFFI
        proposes the article to be written totally anew.
    
    Publication of judgements paid by defendant (article 19)
    
        Article 19 introduces a questionable punitive method: the one who
        infringes intellectual property rights should pay for the publication
        of the judgement in a newspaper selected by the rights owner. As a
        punitive method this conviction of shame is most likely against the
        principles set in human rights treaties. The proposed article does not
        define how severe the infringement must be and how expensive the
        publication may be. Obviously the rights owner has the power to decide
        these details. This can not be said to be neither fair nor according
        to the principles of criminal law (it must be clear what kind of
        penalty follows from particular crimes)
    
    Patented technical protection measures (article 21)
    
        Article 21 would create without sufficient justification one more
        legal protection layer to digital products. We don't see any category
        of digital works which would need this new protection layer. At the
        moment copyright, technical measures (as in copyright directive) and
        patents cover digital products and computer programs. With the
        proposed article 21 the circumvention of technical protection systems
        could be intrepreted once again as criminal activity without any
        defense options left to those who circumvent.
    
        Obviously the legislator does not understand what technical protection
        measures are. In practise e.g. different file formats (Microsoft
        Office) and security algorithms (DVD and CD copy protections) include
        a number of patents. There is a lively and ongoing EU-wide debate on
        e.g. when a private person may circumvent technical protection if
        legal use of a work is not possible. Copyright directive and national
        legislation has currently defenses to hackers though the legislator
        tried a same kind of trick: it is allowed to circumvent DVD- and
        CD-protections if it is not possible to play the record legally in e.g
        cars and portable devices. It is also legal to decompile a file format
        if the aim of decompilation is for example interoperability. What
        happens to these important exemptions if the proposed article 21 is
        accepted?
    
        In essence, does article 21 mean that DVD- and CD-copy protections may
        not be hacked just because they include patents? In that case article
        21 would be in conflict with the basic principle that this directive
        would have nothing to do with the contents of patent and copyright
        laws. EFFI thinks that Finland should first and foremost demand the
        dropping of article 21. Second, and at the minimum, Finland should
        require the clarification of the criteria for circumvention of
        patented technical protection for legal purposes. In addition, we can
        only understand that particular uses of hacking devices may be in some
        circumstances illegal but the possession and manufacturing should be
        always allowed since they have also legal uses (compare to guns and
        regarding copyright photocopying machines, videos and peer-to-peer
        networks).
    
    Summary
    
        Finally, we stress that the directive proposal is extremely political
        instead of its technical harmonizing goals. Its implications are not
        limited to "industry" but it also affects individuals, small and
        medium size firms and all kinds of hobby activity.
    
        It is hardly a coincidence that the directive proposal comes out just
        before EU enlargement to Eastern Europe is completed. The requirements
        set in this directive concern mostly the new member states, which have
        not been negotiating on the contents of the directive. To compare, the
        beneficiaries of the proposed directive are mostly multinational
        companies whose domicile is either within the current EU or North
        America.
    
        In the EU parliament the directive is unfortunately on the table of
        only the committees of industrial and legal affairs. The draft by
        Janelly Fourtou, chairman of the legal affairs committee, reflects
        quite to the point where the directive aims at. Fourtou repeats media
        industry arguments and concludes in her draft that the proposal would
        be "too soft to some forms of piracy". EFFI's stand is exactly the
        opposite: the directive proposal is first of all too strict and too
        inaccurate. Therefore it should be dismissed. At the minimum we
        require that a substantial part of the proposal is written anew
        without promoting any particular interest group.
    
        Helsinki 9th May 2003
    
        Mikko Välimäki
        Chairman
        Electronic Frontier Finland - EFFI ry
        phone +358 50 598 0498
        mikko.valimakiat_private
        fax. +358 9 694 9768
    
        Ville Oksanen
        Vice-chairman
        phone +358 40 536 8583
        ville.oksanenat_private
    
        Electronic Frontier Finland - EFFI ry was founded in 2001 to defend
        active users and citizens of the Finnish society in the electronic
        frontier. EFFI influences legislative proposals concerning e.g.
        personal privacy, freedom of speech and fair use in copyright law. We
        make statements, press releases and participate actively in actual
        public policy and legal discussions. EFFI has been featured in the
        national media including TV, radio and leading newspapers. EFFI also
        works in close cooperation with organizations sharing the same goals
        and values in the Europe, United States and elsewhere. EFFI is a
        founding member of the European Digital Rights and a member of Global
        Internet Liberty Campaign. More information from EFFI's home pages:
        http://www.effi.org/
    
    
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    -- 
    Kai Puolamäki  |  Kai.Puolamakiat_private  |  http://www.iki.fi/kaip/
    NNRC & Informaatiotekniikan laboratorio | PL 9800, 02015 TKK (huone CA503.11,
    HTC, Tammasaarenkatu 3, Helsinki) | PGP key http://www.iki.fi/kaip/pubkey.asc
    (09) 451 8206 (työ) | 050 522 8111 (koti) | (09) 755 4892 (faksi, työ)
    
    
    
    
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