[lutz at iks-jena.de: [EDRi-gram]EDRI-gram number 1, 29 January 2003]

[Cord Beermann]

und noch was fuer FYI.

ein neuer Newsletter zu Buergerrechten in Europa. 

Diesne leite ich mal weiter, wer sich dafuer interessiert moege sich
selbst subscribieren ;-)

Cord

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EDRI-gram
bi-weekly newsletter about digital civil rights in Europe
Number 1, 29 January 2003


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CONTENTS:
1. Introduction
2. Implementing the European Copyright Directive
3. Rally members European Parliament against mandatory data-retention
4. New patent law on software threatens innovation
5. Update from the United Kingdom: Identity Card
6. Action against governmental censorship in Germany
7. Recommended reading
8. Agenda
9. About

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1. INTRODUCTION

This is the first EDRI-gram, a newsletter about freedom, rights and rules in the
information society in Europe. EDRI-gram is produced by members of European
Digital Rights and will appear every 2 weeks.
European Digital Rights (EDRi) is a not-for-profit association, currently made
up of 10 different privacy and civil rights organizations from 7 European
countries. EDRi takes an active interest in developments in the EU accession
countries and wants to share knowledge and awareness through the EDRI-grams. In
general, all contributions, suggestions for content or agenda-tips are most
welcome. Please e-mail your ideas to edrigram at edri.org .


2. IMPLEMENTING THE EUROPEAN COPYRIGHT DIRECTIVE

One month after the implementation deadline of the European Copyright Directive,
only 2 of the 15 member-countries have implemented the law. All over Europe,
scientists, legal experts, civil rights and open source groups are warning about
possible negative effects on free speech, innovation and academic research. In
many countries, civil rights groups joined forces with open software promotors
and wrote comments and implementation suggestions. Civil rights advocates in
Austria and Finland have organised fruitful seminars. Public awareness was
raised through petitions in Denmark and Germany, while in France money is
collected to afford professional legal backing throughout the implementation
process.

The European Copyright Directive (EUCD), adopted in 2001, strives to harmonise
the copyright regime in Europe and adapt the protection of creative works to the
digital age. Article 6 of the directive is the most important, and most debated
article. It forbids the circumvention of copy protection systems.

The Copyright Directive was published the 22nd of May 2001, after years of
difficult negotiations in Brussels. The road to a new copyright directive
started with the signing of two new treaties by the World Intellectual Property
Organisation (WIPO) in December 1996. National implementation is hardly any
easier. So far, only Denmark and Greece have implemented the directive
(2001/29/EC), in their existing legislation. Draft legislation was presented to
parliament in Austria, Belgium, Finland, the Netherlands and the UK. In the
remaining 8 member-countries, proposals have not yet been made public. In
Portugal, parliament is excluded from this legislation process.

Article 6 of the EUCD puts a ban on acts of circumvention, as well as a ban on
the distribution of tools and technologies used for circumvention. The main
reason for the Europe broad resistance against the directive is the fact that
there is no reference to existing limitations of copyright, such as the right to
make a private copy. Nor is the protection explicitly limited to copyright. Thus
the entertainment industry is enabled to dictate usage far beyond the scope of
any copyright regulation. In practice, this already resulted in copyright
protected CD's that cannot be played on car stereo's or computers and in
region-coded DVD's that don't work on European players. Finally, even though the
introduction to the directive specifically mentions that the protection should
not hinder research into cryptography, it is not mentioned in the law itself.

Civil rights groups point at the situation in the USA, where some researchers
refrain from publishing cryptographic research since the introduction of the
Digital Millennium Copyright Act (DMCA) in 1998.

Copyright law is replaced with technology, the campaign group Eurorights.org
writes, and the problem with technology is that it is not the right tool for
protecting copyright. A piece of software is completely unable to determine fair
use, whether the person that wants to quote a part of a work is infringing
copyright or if it is within the bounds of 'fair use'. Furthermore, the EUCD
stifles competition in the software market. The only legal way to create a tool
for playing or accessing material in a specific protected format is by signing a
licence agreement with the creators of the format. This means that the company
that creates a digital format has complete control over how the players should
behave, and also control over who should be allowed to create players for that
format.

The Electronic Frontier Foundation (EFF) just published an evaluation of the
effects of the anti-circumvention provisions in the DMCA. According to the EFF,
section 1201 of the Act

-chills free expression and scientific research;
-jeopardizes fair use and
-impedes competition and innovation.

An evaluation report about the Copyright Directive will be produced by the
European Commission on 22 december 2004.

More reading:

EU Directive 2001/29/EC in English
http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&numdoc=32001L0029&lg=EN

Why the EUCD is Bad - by Eurorights.org
http://www.eurorights.org/eudmca/WhyTheEUCDIsBad.html

EUCD - Copyright extensions that harm - by the Free Software Foundation Europe
http://www.fsfeurope.org/law/eucd/eucd.en.html

EFF evaluation of the DMCA
http://www.eff.org/IP/DMCA/20030102_dmca_unintended_consequences.html

Overview of EUCD implementation status through the Belgian Association Electronique Libre
http://wiki.ael.be/index.php/EUCD-Status


3. RALLY MEMBERS EUROPEAN PARLIAMENT AGAINST MANDATORY DATA RETENTION

38 Members of the European Parliament from 7 different political groups have
united in their resistance against mandatory data retention. Initiated by Marco
Cappato, Italian Radical and former Rapporteur on privacy in the electronic
communications, last week the MEP's presented a strongly worded recommendation
to the European Council. Even though the new European Privacy Directive leaves
room for national legislation on data retention, the MEP's reject the current
Council-plans for a binding framework Decision.

A questionnaire that was sent out to all member-countries about current practice
and wishes concerning mandatory data retention showed all in favour of a
harmonised regime, with the sole exception of Germany and Austria, and some
hesitance in the Netherlands, that rather wait for Council harmonisation under
pending EU computer crime legislation. Further developments are secretly
discussed in the Council on Justice and Home Affairs. Only the provisional
conclusions from the Danish Presidency have been made public, suggesting further
discussion with the telecommunications industry is necessary.

With the urgent call, Cappato hopes to reaffirm the principle 'that general
retention of traffic and location data concerning all communications and
electronic transactions by all citizens for the sole purpose of providing law
enforcement authorities with material for investigations would seriously risk to
undermine the very democracy it claims to defend from its enemy.'

Among the signatories are 4 former shadow rapporteurs on privacy in the
electronic communications, Christian Von Bštticher (EPP), Elena Ornella Paciotti
(PSE), Sarah Ludford (ELDR), Alima Boumediene-Thiery (Greens) and the
Coordinator of the GUE in the LIBE Committee, Giuseppe Di Lello.

More reading:

MEP's recommendation
http://coranet.radicalparty.org/pressreleases/press_release.php?func=detail&par=3049

Answers to questionnaire on traffic data retention (Council, 20 November 2002)
http://servizi.radicalparty.org/data_retention/index.htm

Provisional conclusions from the Danish Presidency (in PDF)
http://register.consilium.eu.int/pdf/en/02/st12/12721-r1en2.pdf

Privacy-directive, 2002/58/EC (in PDF)
http://europa.eu.int/eur-lex/pri/en/oj/dat/2002/l_201/l_20120020731en00370047.pdf


4. NEW PATENT LAW ON SOFTWARE THREATENS INNOVATION

Current European patent law does not allow for patents on software, much to the
dismay of large IT-companies like IBM, Intel and Cisco. In February 2002, The
European Commission published a draft patent law directive that will be dealt
with in a co-decision procedure with the European Parliament.

The proposed text clearly reflects the strong differences in opinion, but fails
to reconcile them. The new law does allow for software patents, but not in all
cases. Traditionally, innovations can only be patented if they are technical
inventions. Therefore, the definition of 'technical' is essential. Under the
proposed new law, all ideas are treated as inventions, but will only be awarded
a patent if they are not obvious. The invention must contain a 'technical
contribution' to make it non-obvious. In the USA, patent law also allows for
patents on business methods (like the Amazon One-Click case), on health and
education methods. In spite of the reassuring press release by the European
Commission, many open source advocates fear this will also be the case in
Europe, since novelty or industrial applicability are no longer required.

Overall, the initiative seems to legitimise the current practice. Because
current patent law does allow for software patents if they form a structural
part of a device, the European Patent Office has already granted 30.000 patents
on computer-implementable rules of organisation and calculation (programs for
computers).

Since 1999, open source advocates, companies and NGO's have joined forces in the
Eurolinux alliance, warning about damage to innovation and competition, and loss
of freedom of expression. Furthermore, they argue, software patents can easily
be used to bar citizens from developing their own forms of communication.

Most software is a creative recombination of existing abstract rules
(algorithms). Granting patents on some of those rules will cause problems for
many developers, especially small ones. Large companies can easily afford the
legal fees to register patents, and the legal fees to seek compensation from
smaller companies using 'their' algorithms.

Back in July 2000, the renowned American law professor Lawrence Lessig warned
about the lack of any economic proof of the benefits of patent law in what he
called Europe's 'me-too' patent law. Quite to the contrary, software patents
have actually harmed investment in software research and development, according
to a 1999 study by technologist James Besson and Harvard economist Eric Maskin.
Lessig recommends this study as a powerful model to show why in this type of
industry - where innovation is sequential and complementary - patent protection
will slow innovation, not speed it.

The proposal is currently under discussion in the parliamentary committee on
Legal Affairs and Internal Market. Lobbyists crowd in front of the door of
rapporteur Arlene McCarthy from the UK labour party. Opinions will also be given
by Elly Plooij-van Gorsel from the Dutch liberal party on behalf of the
committee on Industry, External Trade, Research and Energy and by Michel Rocard
from the French socialist party on behalf of the committee on Culture, Youth,
Education, Media and Sport. McCarthy is expected to present her report on 18
March.

More reading:

Draft software patent law
http://europa.eu.int/eur-lex/en/com/pdf/2002/en_502PC0092.pdf

Excellent overview of issues in English, French and German through the german
FFII, including a 'European Software Patent Horror Galery'
http://www.ffii.org/

Eurolinux Alliance
http://www.eurolinux.org/

Petition against software patents (in 11 languages)
http://www.noepatents.org/

Europe's 'me-too' patent law by Lawrence Lessig
http://news.ft.com/ft/gx.cgi/ftc?pagename=View&c=Article&cid=FT36QMGXJAC&live=true


5. UPDATE: UNITED KINGDOM (contribution by Matthew Postgate, FIPR)

On January 31st consultation in the United Kingdom ends on plans for a national
'Entitlement' card, widely perceived to be an identity card. A six month
consultation on the initiative was launched by the Government in July last year.
Civil rights groups have demanded to abandon the scheme in the wake of
criticisms including invasion of privacy, the risk of abuse of a centralised
repository of identity information, cost and an extremely low key consultation
process.

Co-ordinated action amongst several UK based groups including Stand.org.uk,
Privacy International, and the Foundation for Information Policy Research (FIPR)
has led to a surge of responses opposing the scheme. A website allowing the
public to contact their elected representative directly has collected more than
twice as many responses than the government has received through traditional
channels. In a first for the UK, a voicemail system has also been used that
converts voice messages and sends them to the Home Office via email. The UK
Government has confirmed it will regard these as legitimate responses to the
consultation.

More reading:

The official consultation page
http://www.homeoffice.gov.uk/dob/ecu.htm

HTML version of the consultation document
http://www.isness.org/idcard/

Privacy International's response
http://www.privacyinternational.org/issues/idcard/uk/

Submit a response via Stand.org.uk
http://www.stand.org.uk/


6. ACTION AGAINST GOVERNMENTAL CENSORSHIP IN GERMANY

EDRI-member FITUG (Forderverein Informationstechnik und Gesellschaft) launched
an urgent public campaign against government censorship of websites. A year ago,
the district government of Dusseldorf county in Germany passed orders to more
than 80 internet providers to block access from their users to some foreign
websites.

Providers and civil rights groups united in protest against the directive, but
lost 3 out of 4 court cases, confirming immediate enforceability of the orders.
Government initiatives to censor websites date back to the mid nineties, but
seemed to have been dropped from 2000 onwards as a very ineffective approach.

The renewed German efforts at censorship are in sharp contrast with the
unanimous declaration of the European parliament against the use of "blocking"
as a way of regulating content on the Internet. In a vote held on 11 April 2002,
460 MEP's were in favour, 0 against and 3 abstentions. In their adoption of the
report on the protection of minors and human dignity, parliament expresses
concern 'that recent decisions or strategies to block access to certain websites
may result in the fragmentation of Internet access or the denial of access to
legitimate content and therefore is not an effective European solution for
combating illegal and harmful Internet content'.

FITUG writes: 'Information legally and widely available in the country of origin
is decreed to be made invisible throughout Germany. This reminds us of a very
bad experience in Germany's not so glorious past when Germans were not allowed
to listen to foreign radio stations like BBC London.'

More reading:

FITUG statement
http://www.fitug.de/news/pes/21012003_en.html


7. RECOMMENDED READING

The Human Rights Network in Moscow has just released a very useful online report
about online privacy in Russia. According to the introduction 'Fundamental human
rights and freedoms - freedom of speech, freedom of information, privacy - are
apparently unprotected on the Net. While Russian Internet is growing these
rights and freedoms suffer from frequent and widespread invasion.'

http://www.hro.org/privacy/2002en.htm


8. AGENDA

4 February 2003 Brussels, Belgium - European Commission Public Hearing
Public hearing on Commission's proposals on barriers to the development of the
Information Society through open platforms in digital television and 3G mobile
communications.
http://europa.eu.int/information_society/topics/telecoms/regulatory/publiconsult/index_en.htm 

6 February 2003 Oxford, UK - The Politics of Code: Shaping the Future of the
Next Internet
A one day public conference organised by the Programme in Comparative Media Law
and Policy, University of Oxford. Amongst the speakers Lawrence Lessig and
Esther Dyson, discussing the key choices that need to be made on privacy,
security, access, openness and control in the design of Internet technology and
Internet Governance.
http://pcmlp.socleg.ox.ac.uk/code/

17-28 February 2003 Geneva, Switzerland - Second Preparatory Meeting on the World Summit
Second preparatory meeting for the World Summit on the Information Society to be held in
Geneva from December 10-12 2003.
http://www.itu.int/wsis/preparatory/prepcom/prepcom2.html

27-28 February 2003 Luxembourg, Luxembourg - EC workshops 'Safer Internet'
27:Quality labels for websites - alternative approaches to content rating
http://www.saferinternet.org/news/Events-feb2003.asp
28:SIFKaL workshop - Legal and pedagogical aspects of a Safer Internet
http://rechtsinformatik.jura.uni-sb.de/sifkal/programme.html

10-12 March 2003 Malmo, Sweden - ASEM summit on Globalisation and ICT
Private conference about the role of government, private sector and civil
society in Europe and Asia.
The Asia-Europe Meeting (ASEM) is an informal process of dialogue and
cooperation between the fifteen EU Member States, the European Commission and
ten Asian countries; Brunei, P.R. China, Indonesia, Japan, South Korea,
Malaysia, the Philippines, Singapore, Thailand and Vietnam.
Programme: http://www.iked.org/asem2003ict/program.html

1-4 April 2003 New York, USA - CFP 2003
Edition number 13 of the renowned yearly CFP conference (Computer, Freedom,
Privacy) will be held in New York. Early subscribers receive a 100 dollar
discount (before March 5 admittance is 585 USD, or 125 USD for students).
http://www.cfp2003.org/cfp2003/program.html


9. ABOUT

EDRI-gram is a bi-weekly newsletter from European Digital Rights, an association
of privacy and civil rights organisations in Europe. Currently EDRI has 10
members from 7 European countries. EDRI takes an active interest in developments
in the EU accession countries and wants to share knowledge and awareness through
the EDRI-grams. In general, all contributions, suggestions for content or
agenda-tips are most welcome. Please e-mail your contributions to the editor,
Sjoera Nas, edrigram at edri.org .

Information about EDRI and its members: http://www.edri.org/


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