23 July, 2003: Reverse-engineering and the Copyright Directive again

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I have received a quite useful response from Brian Simpson of the Patent Office about reverse-engineering and the legal status of technical protection measures. See this earlier post and an email to the CDR list for more background.

Brian Simpson writes,

I am pleased that I was able to clarify the basic position as regards the reverse engineering exception of the computer programs Directive (91/250/EEC).

The interaction between this exception and legal protection for TPMs when the copyright work protected is other than a computer program is not specifically dealt with in Directive 2001/29 [the copyright Directive] and we cannot, therefore, deal with the issue when implementing the Directive. The difficulty arises from the European Commission's insistence during negotiations on the copyright Directive that the existing regime for protection of TPMs applied to computer programs should remain intact and therefore different from that for all other types of protected copyright work. As you know, Article 6 of Directive 2001/29 covers all works except computer programs. I understand that representations from the software industry (primarily that Directive 91/250 was working well and should therefore remain unchanged) persuaded the Commission to adopt this line.

I am sorry that I cannot be more helpful but, as the Directive is silent on this particular matter, it will be ultimately for the courts to determine how the respective provisions in the two Directives (as implemented) should be interpreted if they are apparently in conflict in a particular case. However, as TPMs are used by creators of files to prevent infringements such as unauthorised copying, it is important to distinguish between such acts and the mere reading of a file on a PC using alternative operating software by a lawful user.

-- so, this answers the question about the `Microsoft Word problem': the UK implementation of the Directive can't address the issue. The last sentence is, to my mind, wishful thinking, since the serious failing of Article 6 of the Directive is that it doesn't distinguish between lawful and unlawful uses of material protected by a TPM.

(Oh, and a token piece of information. Each EU Directive has an identifying number, like 91/250/EEC or 2001/29/EC. I'm not really sure how these numbers are assigned -- clearly one number is a year and the other some kind of serial number, but why the two appear in different orders in the two examples above I don't know, and whether the letters at the end have any significance beyond being the initials of whichever EU incarnation was current at the time the Directive was written, but it looks like you can retrieve them from the monumental and poorly-designed EU `Europa' web site, by constructing a URL like this, where YEAR is the four-digit year of the Directive, and NUMBER the serial number thingy:


This might be helpful to anyone else trying to extract copies of Directives from the EU.)

Other matters (and some mindless link propagation)

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