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DRM and Globalization Panel
Moderator: Andrew Rens
Speakers: Michael Birnhack,
Natali Helberger, Richard Owens, Robin Gross, Gwen Hinze, Ken Lohento.
Framing the panel discussion(http://research.yale.edu/isp/a2k/panels.html#drm): The questions where and when is DRM
appropriate. How can DMR be used to
advance the project of A2K, what are the dangers of DRM to A2K.
DRM and Globalization Panel
Moderator: Andrew Rens
Speakers:' Michael Birnhack, Natali Helberger, Richard Owens, Robin Gross, Gwen Hinze, Ken Lohento.
I. Introduction
A. Framing the panel discussion: (http://research.yale.edu/isp/a2k/panels.html#drm)
The questions where and when is DRM appropriate. How can DMR be
used to advance the project of A2K, what are the dangers of DRM to A2K.
B. Introduction of speakers. See http://research.yale.edu/isp/a2k/speakers.html for full bios
II. Panel Presentations
A. Michael Birnhack:
IP Globalization + DRM framework
Global copyright (G©) as Trade
Free speech and free trade
Asymmetry:
Copyright is going global
Free speech is local
Hence, the conflict I a locus of a battle over globalization, or more precisely glocalization.
G©
Multilateral instrument
Berne-TRIPs-WCT
Bilateral instruments
TRIPS+, TRIP++ commitments over and beyond that required by TRIPS
Unilateral measures
Special 301 report will be published any day
The problem is that US can pressure developing countries to go beyond
minimal requirements. TRIPS does not require protection of DRM
but US puts pressure to do just that.
TRIPS: 149 countries, no DRM requirement
WCTL 58 Countries
Art. 11 Observations concerning Tech. Measures
Contractive parties shall provide adequate legal protection and effect
legal remedies against the circumvention of effective technological
measure that are used by author in connection with the exercise of
their rights under this Treaty or the Berne convention….
FTA--in the spirit of the DMCA
Strong requirements, limited exceptions, left to the discretion of implementing countries
DRM as Para ©
Level 1: Public ordering (Copyright)
US approach (fair use) provision, it's flexible, but it vague and may have a chilling effect
European approach explicit exceptions, provide clarity, but inflexible
Level 2: Private ordering (DRM)
But DRM can act like copyright. It's an act of self-help.
Protecting information through technological control measures.
Who used DRM? Birnhack suspects it's mostly northern, developed countries
Level 3: Public ordering of private ordering (laws regulating or protecting DRM)
DMCA
G© as Trade
Global Harmonization?
Void of theory
G© as a hybrid of philosophical justifications, no coherent underlying theory.
Free Speech is local:
Speech, politics first, trade second
Free speech jurisprudence reflects history, politics, culture, local debates and may be balanced.
-hate speech laws: Germany, France
-pragmatic balances of speech with conflicting interests national security.
B. Natali Helberger
''DRM colonialism: standards that Conquer the World''
Knowledge costs money and its consumers that pay. A2k is also a
question about access to market and infrastructure. Technology
developers realize the new potential markets and they realize that DRM
can be used to reduce the risk in targeting these markets
FairPlay conquers France…and the French response
France very protective of its culture. Worried that limited
formats would end up hurting producers of French cultural products
(movies, music, etc.) The response: Art. 7 of the French draft CR law,
which requires interoperability among DRM techn. So that consumers can
access/use content on a variety of devices and make private copies of it
Other European countries consider to follow.
Mandated interoperability: There are some good reasons not to do it:
--security
--inferior standard setting
--stifle incentives and innovation
But there are also GOOD reasons to do it.
--economic reasons
--cultural reasons
--political reasons
Would France have adopted a similar law if they controlled the dominate
standard? Probably not. It was the fact that the Americans
controlled the dominate standard. But so what?
Electronic colonization of distribution channels
Markets are to a large degree vertically integrated. One company
owns production and distribution (IPOD owns ITUNES the player and
ITUNES the store and controls the music compression format). This
makes for a separation of product streams. Virgin owned,
distributed, developed content not compatible with ITUNES product line.
First Europe…and the world?
Digitization and the internet offer new opportunities for new markets to develop. Notably, Africa.
Crucial: establishment f the necessary distribution infrastructure and market entry for local players
"We are marching this digital music revolution around the world" Steve Jobs, chief exec of Apple Worldwide.
Concluding remarks
Protection of national markets and culture is an important factor in favor of mandated interoperability
Non-industry driven solution preferable to industry-driven solution
The leading DRM standards are controlled by global players the solution
should be sought on global level too. But: timing problem
This is not only about access to music, Also about Access to text,
media, distance learning. Music industry only a forerunner.
C. Richard Owens
Discussion of technology. Definitional point: DRM widely
referred to as Technological protection measures. This is the notorious
part of DRM. But there is another part of it
DRM can designed to grant access to defined group or numbers of people.
We think DRM is here to stay, so arguments if it is good or bad are a
moot point. The key issues that we face relating to access the
question is whether companies will be allowed to use DRM to restrict
competition, which affects the market. CR owners are just part of
it, the DRM providers are also part of it, they compete with each
other, try to maximize their market share too. Something else we
should look at is how to control DRM providers and ensure that they
don't run out other DRM providers.
How do we do this? Legislation? Do we require interoperability?
Owens says we should be very careful not to stifle competition among
DRM providers. Technology mandates, interoperability mandates are
dangerous paths. Standards settings, however, may make more
sense. Standard setting is now full of patent issue, patent
stacking, blocking technology. There is a question about transparency
of licensing provisions. Also questions about Open source
software. These are the issues we should address, not just a
simplistic DRM good or bad discuss. It's not just about CR
anymore; it's about regulation of competition. One option: do
nothing, let the market decide. Owens asks, but which market? The
American one? The European one?
D. Robin Gross
''DRM & Globalization''
Illegal to bypass the tech. restrictions even to engage in lawful use (anti=circumvention laws like DMCA).
Rational "digital is different" no digital fair sue rights for public (only in analog world)
DRM == 3 layers of legal rights
1. technology itself and laws about protecting protection
2. copyright law
3. contract law (e.g., click wrap licenses)
rights overlap each other this means that the power of the publisher is expanded.
WIPO treaty provide flexibility on anti-circumvention legislation
WIP Copyright Performance and Phonograms Treatt:
"contracting parties shall provide adequate legal protection…
DMCA (Gross calls it Digital CR over-kill)
Bans tools capable of bypassing DRM bans circumvention of access DRM
Widely criticize as over-broad. Big problem for access to
knowledge. Another problem, what about the public domain. What if
DRM "protect" public domain material? Could this eliminate the
domain? Also, outlaws "reverse-engineering" no interoperability
or tinkering. Prevents freedom of expression about critical technical
weakness (can't publish some cryptography papers). This creates a
chilling effect. DRM also impedes competition--creates monopolies
on adjacent products.
Report from conservation CATO Institute:
The DMCA is anti-competitive
DMCA creates a "legal regime that reduces options and competition in how consumers enjoy media and entertainment"
"Fortunately, repeal of the DMAC would not lead to intellectual property anarchy."
US nat. academy of scientists, national research council report:
Congress implementation of the WIPO treaty proves a cautionary tale about the pitfalls of the legislation in the high tech area
UK commission on IP rights repot
UK commission stud warned developing nations away from passing extreme DMCA like laws.
So what can we do?
Enrich public domain
Recognition that all intellectual works are based on pre-existing works
Gov' should enable access to public information (instead we see commercialization of public info
-artists are harmed the most by shrinking public domain.
We should all ensure private copying rights
Most copies are not infringements (although industry claims as acts as if they are)
Must create access to the tools that are necessary to engage in private copying if rights are to have any meaning
Lessons of history: industry attempted to ban piano rolls, radio, vcrs, mps players, etc.
Access to Knowledge is a human right in an information society.
E. Gwen Hinze: ''Global DRM (TPM) Laws''
The key issue is how to implement the 1996 WIPO so that it is flexible and yet goes no further than the right guaranteed.
WIPO CR treat and Performance Phonograph treaty (1996)
Proposed WIPO Broadcasting Treaty (art. 14)
EU Directive 2001/29/EC, art. 6
U.S. DMCA (1998)
DMCA emerging global standard via U.S. Free Trade Agreements (2002-)
US-Chile FTA Art. 17.7.5, US-Australia, Art. 17.4.7
Australia FTA implementation.
Implications of overbroad TRM regimes impair access to knowledge
Override national CR law exceptions
Impair access to digital information widening knowledge gap
Harm global competition
Stifle technology innovation and transfer
Threaten free and open source software
National CR law supplanted
US TPM law provides protection beyond CR
CR law's balanced set of rights replaced by "anti-circumvention law
Overrides US statutory exceptions and fair use
Tools ban
CR balance redraw by unilateral action of CR owner
Global context: foreign CR owners' preference trump national law exceptions
For net IP importers this is wealth transfer mechanism.
Overbroad TPM laws impact libraries:
--overrides national exceptions
--reservation: obsolescent TPMS
Product lock0in at higher monopoly-based prices
-printer cartridges, garage remote controls, cell phones
Rights beyond CR
-Geographic market segmentation via region-coded DVDS game, printer cartridges
Stifles techn. Innovation
Control over tech platform: dvd players
Threat to free and open source software development
-impairs reverse-engineering to create new products=information tech transfer
-standards: tech. mandate + bans FOSS products
Us. FCC broadcast flag regulation
WIP broadcasting treaty.
Different approach in Australia
As a result of FTA with US had to re-write laws
Aust. Parliament recently released a report review TPM
--Nexus between TM protection and CR infringement
--Limit potential anti-competitive impact-exclude region coding technology
--administrative process to create meaningful exceptions with noncommercial tools.
F. Ken Lohento
What do you mean when you say DRM? Lohento will be talking from his
experience with IP policy as regional and national level.
PIWA: regional independent NGO, promotion of citizenship, democracy, governance, peace, from radio to ICT policies
Reminder: some key facts of the ICT territory
Africa internet usage and populates stats: Only 2.6% of African population are internet uses.
CD and DV piracy, however, is very high. Local and international
productions are just too expensive. You'd have to spend a third
of your monthly salary to get an original DVD in Senegal. So what
is normal is to by the pirated CDs.
The low level of internet use means that: 1) ICT cultures is still at
the "happy few" stage, 2) policy makers still lack ICT culture, and 3)
civil society and consumer associations in general still lack internet
culture.
ICS legal environment and ipr
Legal ICT enviro. still virgin in most countries
In most cases CR law contain no reference to ICTs (see the study
undertaken in 2003 by IP survey an implementation of WCT and WPPT.)
BUT the situation is changing because of
--cyberfraud (identify theft, 419 scam, etc.) development in some countries
--international pressure….
DRM???....but DRM!!!!
CIAPCO..CIPESA e-debate on UCT UOR issues in Africa
-draft syntheses www.cipaco.org e-debate section
Divergent opinions regarding IPR issues within stakeholders?
DRM: what do you mean?
Only a few people feel so far the effect of DRMS…but these people are key players, citizens, students, etc.
TWO KEY ISSUES
How to ensure that least developed countries decision-makers,
negotiation understand TRM, ICT IPR and access to knowledge issues in
general, in a situation where the immediate negative impacts are not on
the majority of population/voters.
At the International level adequate limitations and exceptions must be adopted to allow the effect A2K in LDCS.
III. Q&A
A. What is the role of WIPO in given technical advice where DRM goes beyond protecting CR.
Owens: WIPO wouldn't give specific advice that TPMs
should only apply to CR, this is not mandated by the treaty. The treaty
requirement is that if TPMs are applied, they must be protected.
B. In between the idea that technology exists and the questions about
implementation and competition, hasn't the ship already sailed?
Isn't the question to what extent should this technology be
privileged? Should DRM be subject to the same type of balance
that CR is subjected to?
Helberger: that's not an either/or issue. Competition aspect also important
Hinze: I think the implementation issue is key. When you
are implementing the protection of TRM the pint is that there is a
balance between scope of CR protect and scope of protection of TPM.
Lohento:' another issue is that in reality is that
developing countries don't always have the expertise, the
complexities/implications of implementation not always understood.
C. Two million songs protected by drm and others are drm-free available
in file-sharing networks, do you expect the ration to change?
Owens: there is a relationship between pricing and
interoperability. We may get really tailored online music
services.
Helberger: DRM will play an increasing role in online music content.
D. physical goods can be differentiated in order to solve the problem
of gray market goods. This allows companies to engage in
differential pricing, which can be good for the consumer. (We see
this with generic drugs marketed to poor countries: pills are different
color than those marketed in Europe or America). In theory, DRM
could be used to the do the same thing. For example, it could be
used to provide cheaper textbooks to markets that can't afford
textbooks at US prices. Is this happening, and if not, why not?
Birnhack: Actually, there have been several attempts. The DVD
zoning was actually an attempt to do this. But it failed.
Why? People were unwilling to pay for a product that they
couldn't use they way they wanted it. The power of the consumer
should not be underestimated. It might actually be wonderful to
have extremely strong DRM and DMCA because then the people would
protest.
Helberger: there was some price discrimination, itunes songs sold for more money in UK than in Germany.
Owens: not yet developed, but in theory, it will be one day.
E. Given the tech problems often caused by DRM what incentive does a
consumer have to acquire something with DRMs when they can get it for
free without DRMS on p2p network?
Helberger: itunes was an innovative model. No fear of legal action.
Owens: you're right, it's not just about cr, it's also about the tech problems with associated with DRM.
Gross: the only incentive is that you won't go to
jail. This is not the right approach. We are seeing more and more
criminalization of what should be a civil case.
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