12 July, 2003: Copyright Directive again

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A little while ago I wrote to Patricia Hewitt about the European Copyright Directive, the UK implementation of which is apparently nearing completion. The point here is that the record industry and their venal minions have undoubtedly been lobbying like billy-oh to make the UK implementation more amenable to their interests than the draft -- if that's even possible....

Probably the worst consequence of the EUCD for computer users is the `Microsoft Word problem'. The threat here is that, if Microsoft incorporates digital rights management into Microsoft Word (and their other software in the `productivity' sector), then reverse-engineering the file format so as to write an interoperable word processor which can read the DRM-protected .doc files is prohibited under article 6 of the Copyright Directive, since that second word processor would be a `circumvention device'.

We are told that Microsoft proposes to do exactly this.

(Obviously from a commercial perspective this is very sensible: when the State hands you a guaranteed legal means to protect your monopoly, grab it with both hands while kissing the arse that gave it you. Many other manufacturers of diverse products including LASER-printer toner cartridges and garage door openers have already used the DMCA to suppress legitimate reverse-engineered competition.)

In the UK, decompilation of software for interoperability is explicitly permitted by section 50B of the Copyright, Designs and Patents Act (1988) if it is necessary to produce an interoperable program; there's a useful discussion here which explains the restrictions better than the legislation itself does. Unfortunately one of those restrictions is that the lawful user doing the decompilation may not: (emphasis mine)

(d) uses the information to create a program which is substantially similar in its expression to the program decompiled or to do any act restricted by copyright.

Circumventing a DRM system is an `act restricted by copyright', presumably.

So, on to my letter to Patricia Hewitt. I outlined the `Microsoft Word problem', and stated that,

It was not the intention of the Commission to stifle competition in this manner, but a poor implementation of the Directive will, sadly, have that effect. It is therefore extremely important that the reverse-engineering exemption is maintained and strengthened in the UK implementation of the Directive.

To this I received -- with admirable promptness -- a letter from Brian Simpson of the Patent Office, who states, (again, emphasis mine)

As you have raised the matter again in your letter to the Secretary of State, I would add specifically that neither the Directive nor our proposed implementation is intended to affect the existing exception to copyright which, in specified circumstances, allows reverse engineering in order to achieve interoperability between computer programs.

Superficially, this looks good. But, because of the `acts restricted by copyright' limitation on decompilation, the existing restrictions on decompilation appear to protect Microsoft and like-minded companies from any danger of competition, if they incorporate DRM into their products, just like in the United States. So, no good news there. (Of course, I have no expertise in reading and interpreting legislation, so I may be wrong in the above. I'll write to Brian Simpson for confirmation.)

Copyright (c) 2003 Chris Lightfoot; available under a Creative Commons License.