It took a 15-year fight to be allowed to use an existing DRM exception: who still thinks copyright is fair?

In his Walled Culture interview, Cory Doctorow explains cogently why Digital Rights Management (DRM) is such a disaster. It’s also pointless: DRM can always be broken, and once there is one unprotected copy out on the Internet, the material with DRM effectively become an inferior, hobbled version. The copyright companies reacted to this fact in the usual way, by demanding new laws from their allies in government.

The relevant legislation was passed as the 1998 Digital Millennium Copyright Act in the US, and as the 2001 Information Society Directive in the EU. The latter is even worse than the former, since it forbids the circumvention of copy protection measures, whereas the DMCA only forbids the circumvention of access control measures. This means that even though citizens have the right under EU law to use copyright material with DRM for things like education and scientific research, it is illegal to make use of those rights, because it would require circumventing the DRM. It’s a classic copyright situation, where the few rights that ordinary users might have in theory are, in practice, unavailable, because the concerns of the copyright companies take precedence.

A 2019 post on the Free Software Foundation Europe (FSFE) blog details the remarkable fight by the Portuguese Association for Free Software (ANSOL) and the Association for Free Education (AEL) to remedy that situation in Portugal, at least. It’s worth reading as a reminder of just how the system is stacked against ordinary citizens trying to exercise their rights:

The Portuguese law said that when DRM prevented a citizen from making use of a copyright exception, the citizen could contact the General Inspection of Cultural Activities (IGAC), a public institution from the Ministry of Culture, and ask for the “means” to make the copy, instead of breaking the DRM himself, because, the law also stated, rightholders had to deposit those “means” in IGAC. In summary: rightholders should deposit the “means” to open the DRM in IGAC, then citizens would ask IGAC for those “means” in order to exercise a legal use, like a private copy. We never knew what the law meant by “means” – it was assumed those would be the keys IGAC would be able to use in order to open the DRM locks.

ANSOL and AEL brought a test case, and asked IGAC for the “means” to make a private copy without breaking the DRM. This is a copyright exception in Portugal, and thus a legal activity.

After pointing IGAC to the law and which exact articles we were trying to exercise, they told us they couldn’t give us what we asked since they didn’t have those “means”, as the rightholders had not deposited them. That is a situation the law didn’t foresee, therefore there was no penalty for rightholders that didn’t make such a deposit.

The rest of the FSFE post describes in detail how ANSOL and AEL used the fact that they could prove they were unable to make use of their legal right to a private copy to raise awareness amongst the public and politicians. It was a difficult process that required unreasonable amounts of patience and persistence. It was only in 2017 – a decade and a half after the original law protecting DRM was passed – that citizens finally obtained the right to circumvent DRM for legal purposes. And only in Portugal, because of the specific details of the country’s other copyright laws.

Although a (small) win for citizens, the extraordinarily long journey to obtaining it is a perfect demonstration of how unfair the copyright system is – something that is evident every second of the day around the world. The FSFE post points out that even a proposed amendment to the recent EU Copyright Directive clarifying that DRM could be circumvented to make use of copyright exceptions was rejected. When it comes to copyright, the thought of EU citizens being able to enjoy all their existing legal rights was too controversial, it seems.

Featured image by Franz van Duns.

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