The law implementating the European Copyright Directive in Germany has been published in the German official journal on September 12 and will take force on September 13. Many of the sections on DRM however won't be in force until September 1 of next year.
EFF and IP Justice have made comments in the legislation process.
The most important consideration for the German legislators was time. They wanted to be fast. For that reason, the reform law restricts itself to things necessary for implementation and adjourned controversial points to a second round of legislation to be kicked off soon. See the reasons for the draft law at pages 31 to 33.
The resulting DRM regulation therefore mostly only incorporates without many changes what is written in the Articles 6 and 7 of the directive.
However, some points specific to the German legislation deserve some attention:
Article 6 paragraph 4 of the directive gives Member States the right to assure consumers' right to private copies against DRM measures, but imposes no obligation to do so.
The right to make copies for private use has been amended in the new Article 53 to exclude cases where the copy is taken from an "obviously illegal original". But, in line with the general policy to adjourn the most controversial points to the next round, the new Article 95b does not yet give consumers any rights to enforce their rights under Article 53 against DRM measures.
However, anyone selling for example music CDs with some DRM protection must make that clear to the consumer, Article 95d. This was not mandated by the directive, and is at least some basic consumer protection: Consumers will know before buying something if they won't be able to take private copies, and will therefore be able to avoid vendors if they don't like the whole package at that price. This is something recently proposed in the USA as the "Digital Consumer Right-to-Know Act", see this EFF action page. So the German legislation might be cited in support of that proposal.
Other fair use rights (for example the right to use a work in a classroom) are protected against DRM by Article 95b, in line with Article 6, paragraph 4 of the directive.
If copyright holders try to take away fair use rights protected in Article 95b anyway, paragraph 2 of that Article gives the person protected a claim against the rightholder to enable the protected use. That claim can be made by consumer protection NGOs. A violation of Article 95b is also an administrative offence under Article 111a, punishable with a fine up to 50.000 Euro.
Article 108b penalizes acts of circumventing DRM technology.
However, that article has an exception for private use. That means: There is no protection for private use against DRM under Article 95b, but there is no criminal law protection against circumvention for the purpose of private use either.
The reasons for the draft law state about that point, on pages 68 to 69:
In Germany, public prosecutors are required to prosecute each offence they hear about (principle of legality). The draft authors think it would be against the principle of proportionality to have great numbers of home searches and indictments for private use motivated violations.
See also the recent report by Andreas Dietl on the new German law here, which discusses all aspects, while I am focussing only on DRM here.
There is also a new IP Justice page on circumvention regulation up here.
Posted by Karl-Friedrich Lenz at September 13, 2003 02:27 PM | TrackBack