Europe heading down DMCA route, warns think tank

Far-reaching European copyright legislation making its way into UK law is likely to tighten the grip of large companies on consumers, according to a British IT policy think tank, because of the way it is being implemented across the European Union.

In an analysis of the EU Copyright Directive (EUCD) of 2001, the UK's Foundation for Information Policy Research (FIPR) found that most countries were failing to protect researchers, business competition and consumers in their implementations of the directive, while giving full force to measures that criminalise the circumvention of copyright controls. Once the Brussels government has approved a directive, member states are required to implement its provisions in local law.

The result, FIPR says, is legislation that closely mirrors the US' controversial Digital Millennium Copyright Act (DMCA), which has been employed by rights-holders to limit competition and control the way consumers use copyrighted products.

The most controversial provision of the DMCA, mirrored in the EUCD's Article 6, criminalises the circumvention of anti-piracy technology, such as the anti-copying encryption on DVDs. Member states have the option of allowing exceptions to this rule in locally-implemented law, for instance, protecting scientific researchers.

However, many member states are not making use of this flexibility, and in some cases -- such as Spain and Germany -- are transferring the language of the anti-circumvention provision almost verbatim into national law, FIPR said.

"They could find that approach leads to real problems. The courts could interpret the law in ways they don't expect, that have nothing to do with copyright claims," said FIPR director Ian Brown.

Such claims are already well-known in the US under the DMCA, which has affected the market for printer cartridges and garage-door openers. Printer-maker Lexmark International and automatic garage-door maker Skylink have successfully wielded the law to ward off competitors who wanted to develop toners and garage-door openers interoperable with their products. In both cases, the companies claimed that the competitors broke their protection measures.

European countries do not appear to be paying attention to the US situation, Brown said, and may have to go through the same experience before there is sufficient pressure to make changes to the law.

The first opportunity will be late next year, when the first triennial EU-wide review is scheduled. However, a review may not be possible because member states have been so late in bringing the law into effect.

"I wouldn't be surprised if we have to wait another three years" before an effective review can take place, Brown said.

In the UK, draft legislation has been introduced -- in a form that Parliament cannot amend -- but its entry into law has been delayed by controversy created both by rights-holder groups and civil liberties organisations. FIPR, the Campaign for Digital Rights, the Libraries and Archives Copyright Alliance, and other groups have argued for limitations on the EUCD that protect citizens. On the other hand, the British Phonographic Industry argued that the government's draft legislation was too weak, and would create an uneconomic market that would force the music industry out of Britain.

A new draft of the British law, a Statutory Instrument amending the Copyright, Designs and Patents Act 1988, is to appear soon, but rights groups doubt that it will be altered because of the strength of the rights-holder lobby.

"The only people who know what they want in this area of law, and are good at lobbying, are the rights holders," Brown said. "On the one hand, there is a group of wealthy people whose interests are directly affected, and on the other are diffuse interests who are affected, but who don't necessarily have the time or resources for lobbying."

FIPR's analysis, "Implementing the EU Copyright Directive", can be found on the organisation's Web site. The text of the EUCD can be found here. The UK Patent Office's consultation paper on the UK implementation can be found on its site.

CNET News.com's Lisa M. Bowman contributed to this report.