Annex
MPA response to the UK All Party Parliamentary
Internet Group (APIG)
Inquiry into Digital Rights Management
(DRM)
The Motion Picture Association (MPA) is a trade
association that represents seven major international producers
and distributors of films, home entertainment and television programmes.[56]
We welcome the opportunity to comment on the APIG public inquiry
into DRM, which is a topic of crucial importance for the film
industry. Our member companies have been developing a wide range
of online services and are licensing their works to a broad array
of new media platforms. New services offer consumers exciting
and novel ways of enjoying an ever broader variety of copyright-protected
content, notably (but not only) on the Internet. DRM tools play
a central role in the success of these new business models in
the digital environment.
The APIG inquiry seeks succinct feed-back on
eight specific questions relating to the use of DRM "in a
continually evolving market place". For ease of reference
and clarity, these eight questions are addressed below in the
order outlined by APIG in its invitation to comment (http://www.apig.org.uk/current-activities/inquiry-into-digital-rights-management.html).
However, as a general preliminary comment, we
would like to point out that DRM tools and technological protection
measures (TPM) should be clearly distinguished and that the terms
"DRM" and "TPM" should therefore not be used
interchangeably. Whereas DRM refers to systems for managing offers
to consumers of copyright protected products, TPM correspond to
a software, service or device that provides technical protection
against copyright infringements and facilitates secure distribution
of copyright works.
1. "Whether DRM distorts traditional
tradeoffs in copyright law"
Our short answer to APIG's first question is
"no" and this view is based on the understanding that
the range of possible uses of copyrighted material has been greatly
expanded in the digital age, largely in favour of consumers. As
a matter of fact, it needs to be borne in mind that digital technologies
have made possible mass replication (indeed cloning) and redistribution
of copyright works on a global scale, with little or no marginal
cost for users. By facilitating the legitimate provision of copyrighted
content to consumers, DRM helps to ensure a fair balance in copyright
law in the digital environment.
DRM allows copyright owners to make content
available to consumers in a variety of exciting new ways through
great product and services diversification. In the film sector,
this includes the development of new business models (flexible
pricing, superdistribution, video-on-demand, subscription) and
new formats (DVD, next generation DVD, digital cinema, digital
TV, etc). In turn, DRM empowers consumers to enjoy content when
and where they want and to pay for only what they want. This more
efficient means of delivering content will expand consumer choice.
Keeping the foregoing in mind, it appears obvious that DRM is
merely a means permitting copyright holders to effectively exercise
and protect their existing rights of copyright by allowing the
effective management of these rights in the digital environment.
Copyright holders and consumers have converging objectives, with
rights holders having a clear market incentive to satisfy effective
demand for flexible pricing and innovative means of consumption,
whereas consumers are expecting a diversified menu of choices.
2."Whether new types of content sharing license
(such as Creative Commons or Copyleft) need legislation changes
to be effective"
The key question that public policy should address
is how to design the most appropriate framework to incentivise
investment in the creative economy. Clearly, there are numerous
means of encouraging investment, but it is not yet obvious that
legislative changes would be required to underpin new variants
of copyright licenses. "New types" of licenses, such
as Creative Commons, are in fact merely manifestations of current
copyright law in the sense that they employ the exclusive rights
that enable the copyright owner to authorise or prohibit different
acts. As a case in point, the Free Software Foundation's website
notes that "the [General Public License (GPL)], and other
copyleft licenses, are copyright licenses". As a matter of
fact, it should also be noted that these licenses are vigorously
enforced in the marketplace (see www.gnu.org/licenses/gpl-violation.html).
UK copyright legislation, like its common law
predecessors, is marked by the principle of contractual freedom.
Right holders, with some limitations, are thus free to design
whatever models they wish to use to license their works. At this
stage, it is our view that no evidence supports the idea that
changes in UK legislation would be needed to accommodate new types
of copyright licenses.
3. "How copyright deposit libraries should
deal with DRM issues"
The need to answer this question would seem
to depend to a large extent on the types of copyright-protected
works being deposited, and the extent of DRM usage in the particular
sector. In some instances, it may well be that no need to "deal
with DRM issues" arises at all. Besides, keeping in mind
our general comment on the need to distinguish "DRM"
and "TPM" (see second § on first page), we would
like to put it to APIG's consideration that a more accurate wording
of this question might perhaps be to ask "how copyright deposit
libraries should deal with TPM issues" but that question
would fall outside of the scope of a public inquiry devoted to
the DRM topic.
This being said, it might be worth noting that
the European Union's "Copyright" Directive (Directive
2001/29/EC—see notably Recitals 51 and 52 + Article 6.4)
envisions voluntary agreements between right holders and other
parties concerned to accommodate certain copyright exceptions
or limitations provided for in national law in accordance with
the Directive. This voluntary path is successfully being pursued
in the UK, as well as in other EU countries. As telling examples,
we would notably like to draw APIG's attention to the current
discussions between the MPA and the British Film Institute (BFI).
Germany also provides a useful example, where voluntary agreements
have been adopted between the German National Library and the
music and book publishing sectors.
4. "How consumers should be protected
when DRM systems are discontinued"
As we read it, this question goes to the heart
of the balance that should be struck between, on the one hand,
the need to encourage technological development and, on the other
hand, the desire to minimise legacy problems. However, the issue
at stake would more accurately seem to refer to "format obsolescence",
rather than "DRM obsolescence". In this context, while
acknowledging that new technologies cannot from the outset be
required—let alone designed—to last forever, manufacturers
and/or providers of new technologies are clearly expected to ensure
fair degrees of interoperability. Moreover, it is vital that consumers
are provided information on any legacy issues, including in particular
analogue switch-over matters.
The MPA believes that current regulation should
provide the necessary comfort in the form of consumer protection
and similar laws. At the same time, we would also argue that with
new technologies being developed, comes a concomitant requirement
to limit legacy issues (rather than to create them). In most cases,
the overall benefits of new technologies for consumers should
outweigh the deficits from legacy issues created by the very migration
to a popular new technology. Industry self-regulation, notably
through proper product labeling, should also be instrumental in
ensuring the smooth transition to new technologies.
While not excluding the eventual need for government
to intervene in possible cases of obvious market failure, such
as the so-called analogue hole, the MPA would argue that, as a
general rule, the marketplace and its commercial incentives provide
the best way to solve legacy problems. Evidence suggests that
new technologies usually contain incentives for the consumer to
migrate but that migration often takes time. In this context,
the market has repeatedly shown, by endeavouring to reach interoperable
solutions, that there are very strong commercial incentives to
manage technological migration in such a way as to minimise the
alienation of consumers.
5. "To what extent DRM systems should
be forced to make exceptions for the partially sighted and people
with other disabilities"
To usefully respond to this question, it again
appears appropriate to reiterate the importance of the distinction
made above between DRM and TPM.
As a first element of answer, it should also
be said that DRM is a technology in development and that, as such,
there is no reason why it could not provide solutions (rather
than "raise obstacles", as the wording of Question 5
seems to suggest) for the accommodation of copyright exceptions
to the extent that they become necessary. Secondly, the MPA would
also argue that not every disability needs to be overcome by the
circumvention of, say, a TPM. One-size-does-not-necessarily-fit-all
and any copyright holder should be entitled to provide a narrowly
tailored response relative to a particular disability, without
eliminating the TPM in its entirety or providing a key that would
be available to all users.
APIG's invitation to comment includes a reference
to the UK's Copyright, Designs and Patents Act (CPDA) that deserves
close attention, since this instrument already provides a pragmatic
method to deal with situations where copyright exceptions need
to be accommodated in the digital environment. In a nut-shell,
Section 296ZE of the CPDA establishes a detailed "remedy
where effective technological measures prevent permitted acts".
This is designed to implement Article 6.4 of the EC Copyright
Directive. This intervention mechanism gives the Secretary of
State regulatory powers to ensure that beneficiaries of exceptions
can benefit from exceptions (or permitted acts).
6. "What legal protections DRM systems
should have from those who wish to circumvent them"
As previously clarified, the important distinction
made between DRM and TPM should here be kept in mind.
Article 6 of the EU "Copyright" Directive
(EUCD) mandates Member States to provide adequate legal protection
against the circumvention of any effective technological measures
carried out by someone in the knowledge, or with reasonable grounds
to know, that he or she is pursuing that objective. In line with
the EUCD, the legal protections of DRM systems should therefore
include an appropriate knowledge standard. Secondly, the legal
protection should ensure that the provision of information and
"other means" to circumvent are covered as well. Thirdly,
the manufacture and distribution of circumvention devices should
be prohibited even pursuant to a lawful use (ie, to exercise an
exception). Finally, the definition of "effective technological
measures" must be implemented in such a way that technological
measures do not have to be "un-hackable" to qualify
for legal protection, since the guarantee provided by the legal
protection would otherwise be totally deprived of its content.
The CPDA appears to be broadly in line with
the EUCD regarding legal protection of technological measures
but two points of concern may however be useful mentioned at this
stage. Firstly, the British implementation appears to feature
an omission of the "limited commercially significant purposes
or use" test in the section on criminal sanctions (Art 6.2b
of the EUCD) as well as a narrower implementation of the Art 6.2a
test ("promoted, advertised or marketed for the circumvention
of" effective technological measures).
In addition, a significant procedural problem
arises in sections 296ZA(4) and 296ZD(3) from the incorporation
by reference of section 102(1) of the Act. The circumvention provisions
rightly allow both the publisher of TPM-protected works and the
owner of the technology affected to bring proceedings against
prohibited circumvention activities. Section 102(1) requires copyright
infringement claimants with interests in the same work all to
be joined in the action. As applied to the circumvention provisions,
it arguably requires the technology owner to join everyone with
any copyright interest in the work protected (and vice versa)
before he can proceed with his action. This is a pointless fetter
on potential claimants, especially given that under the Civil
Procedure Rules, the court can at its discretion join any party
whose participation in the action seems desirable (CPR, rule 19(2)).
This mandatory requirement did not appear in the pre-EUCD anti-circumvention
provisions introduced in 1988 (section 296) and should be deleted.
7. "Whether DRM systems can have unintended
consequences on computer functionality"
Unintended consequences are usually hard to
predict since, by nature, they are not expected. It would therefore
appear as a somewhat blunt display of over-confidence to simply
answer "no" to question 7. Indeed, all new technologies
are susceptible to display a certain amount of glitches or, at
least, room for improvement in the same way as any software loaded
into a computer may have unintended consequences before being
improved by its authors through an iterative process of "software
development". In this framework, it should be said that every
effort is made by content providers to ensure that consumer devices
are not adversely affected by DRM systems. Again, as in the case
of the protection of consumers if and when a DRM system is discontinued
(see question 4 above), the speed of fixing and the information
supplied to users will be crucial to the success or failure of
a given technology. In our view, the marketplace should be the
ultimate arbiter determining this outcome. With regard to existing
law, notably in the fields of consumer protection, product liability
and privacy, the MPA does not see any justifiable reason to treat
DRM differently than any other innovative technologies available
in the marketplace.
8. "The role of the UK Parliament in
influencing the global agenda for this type of technical issue"
In our opinion, the UK Parliament could play
an important role in securing the continued introduction and use
of DRM tools in the digital marketplace, and hence in the development
of new digital media services to the benefit of both consumers
and content providers. The UK Parliament should notably:
— Continue to monitor the impact of
the implementation in the UK (and in other countries) of the EU
Copyright Directive, notably on rights holders, the marketplace,
the copyright exceptions (and its beneficiaries), as well as technological
development.
— Continue to provide input to the
Government relating to the general development of the digital
environment.
— Encourage and, as deemed appropriate,
facilitate the cooperation between content providers, telecom
operators, Internet service providers (ISPs) and other interested
stakeholders with a view to clean up a marketplace plagued by
rampant piracy and effectively allow legal alternatives to flourish.
— Support market efforts to ensure
the development of interoperable standards for content protection.
27 February 2006
56 The MPA's members comprise: Buena Vista International,
Inc., Metro-Goldwyn-Mayer Studios, Inc., Paramount Pictures Corporation,
Sony Pictures Releasing International Corporation, Twentieth Century
Fox International Corporation, Universal International Films,
Inc., Warner Bros. Pictures International, a division of Warner
Bros. Pictures Inc. Back
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