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Fair Use Fades in Europe
March 30, 2004
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As with the equivalent laws in other EU states, the Copyright, Designs and Patents Act 1988 has been amended by the Copyright and Related Rights Regulations 2003. This implements the (big breath) "European Parliament and Council Directive on the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society" (InfoSoc).

These new laws have far reaching affects for Europeans. If the wording of this directive is taken literally by the courts, which many judges consider it their duty to do, it will not only remove any traces of fair use rights for consumers, but will have some appalling side effects. So appalling, they are almost comical.

InfoSoc outlaws "any device, product or component which is primarily designed, produced, or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures."

On initial inspection this looks like a tough law. You cannot rip your copy-protected music, that's music that you have paid for! This means no play lists of favourite songs from different CDs or back-ups of DVDs. It will also mean no converting protected PDF files into more manageable Word files. Quoting the file, for example, will be a time consuming event. But it gets worse.

On closer inspection, just how broad the law is becomes apparent. Although the law targets software such as CloneCD, which is designed to rip protected media, it catches a lot more in its path. Infamously, black marker pens could be used to circumvent Sony's Key2Audio copy protection system. Was there a truth underlying the joke that black marker pens will be banned? By the same rule, perhaps the Shift key should be removed from all keyboards?

So what can consumers do if they purchase a CD that will not play? How can a partially-sighted reader increase the font size of their protected e-book?

Copy protected media that can not be adapted to the users needs are not faulty under s14(2), Sale of Goods Act 1979, unless consumers expressly ask about the flexibility of the media (for example, "Will this play in my car?"). Returning the protected media may consequently be a difficult task.

The InfoSoc directive therefore has a specific clause. Users can appeal to the Secretary of State. By the definition of this, it will be a long and drawn out process. It also places the burden of protecting consumer rights on the consumer, rather than the media companies.

The law does provide an alternative. It is only illegal to circumvent
"effective technological measures". By the definition of "effective", it is only effective up until the point that it is circumvented. If it has already been circumvented, it is not effective any more. Perhaps a small amount of hope, but as with outlawing of the Shift key, it needs to be tested in the courts.

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