Norway’s approach to the Infosoc directive
In February 2005, the Ministry of Culture and Church Affairs submitted its White Paper on amendments to the Norwegian Copyright Act. The media immediately picked up on the section dealing with the circumvention of technological measures and named the proposal “the MP3 Act”. Media coverage circled round a narrow selection of topics:

  • Every 14-year old in the country will become a criminal! (Because they will want to copy their CDs to their iPods.)
  • Meet the politicians who own an MP3 player and hear what they feel about the proposal! (Because their opinion is more informed than that of the other politicians?)
  • We have surveyed the parliament and this is the MP/MP3-player ratio of the different parties! (Parties where no MPs have MP3 players shouldn’t get to vote on this matter at all?)

Need for information
The Norwegian Board of Technology (NBT) is an independent body for technology assessment established by the Norwegian Government in 1999, following an initiative by the Norwegian Parliament (Stortinget). The Board had already scheduled a project on DRM for the autumn of 2005. However, from the media coverage, and the open hearing held on the proposition, it was clear that more information was urgently needed on technological measures and DRM.

Aided by experts in law and cryptology, The NBT set out to give the Members of Parliament some balanced information on what DRM is and how it can come to affect how we deal with digital content in the future. The hope was that by providing balanced and easily understandable information on this matter, the politicians would also get a chance to focus on the other important aspects of the proposition: How to ensure that intellectual property rights are not violated in the digital age.

This resulted in a four page newsletter called Technological measures – DRM. The newsletter addresses the challenges digital technology means for intellectual property, focusing on music and film in particular, as the confusion in regard to this seemed to be the biggest. Also copying and distribution of this type of content has become cheap and easy and in large groups of the population – widely acceptable.

Why is DRM relevant to this?
The obvious benefit of DRM is the possibility of charging a different price for digital content depending on the need of the customer. The customer can choose to download a film for watching once, or she can choose to buy a piece of music to store and copy to any format she wants. Most people today have no problem accepting that when you rent a DVD, you only buy a limited right to view it. You cannot copy it for private use or sell it to someone else – that would require you to buy the DVD. Transferring this concept to music, films and books in digital form is the challenge.

Much of the focus so far has been on copy protection on CDs and DVDs, and the fact that the new law will prohibit the circumvention of such measures. Copy protection can be seen as a primitive form of DRM, restricting the right to copy a CD. The problem is that the consumers don’t see it this way – it looks like a regular CD and costs the same, so why are the rights limited? To make matters worse, quite a few of these CDs don’t play in all types of CD-players, and making a copy can in most cases solve this problem. This led the Ministry to add an exception to the rule: You may circumvent a technological measure to be able to play your music on “relevant playback equipment”. In the proposal from the Ministry, MP3 players were not considered relevant equipment for playing CDs, hence all the fuss in the media.

As "everybody" predicts that traditional copy protection will be replaced by DRM (or something similar) in the future, how DRM works and how it affects the protection of digital property rights is an extremely relevant issue when dealing with circumvention of technological measures. Limiting focus to the copy protection schemes we see today is clearly not sufficient.

Challenges with DRM
Limiting “fair use”?
In the proposal from the Ministry, circumventing technological measures is not legal when a contract for the use of the intellectual property has been made between the consumer and the property owner, and the property is purchased over the internet. As a DRM-system will contain such a contract, the deployment of DRM systems will mean that the regulation of consumer rights in this area is transferred from the authorities to the property rights owners: If no service that allows copying a piece of music or a film for private use exists, then the right to "fair use" will effectively disappear. In the newsletter to the Norwegian Parliament NBT recommends that the politicians watch the development closely, and take the appropriate measures to revise the law, should consumer rights be restricted as a result of this.

Hardware problems
Many consumers are concerned about DRM-systems that are linked to a specific hardware, and only allow the content to be played/read on this. Systems of this kind have made consumption of legally bought content difficult after a disc crash or after replacing an old PC. It’s assumed that this type of problems will cause consumer reactions, and that alternative solutions will emerge.

Privacy issues
Privacy is an area where DRM has caused reason for concern. Several systems require the user to identify her self to access digital content. In this way, the supplier of the DRM system can get access to the user’s media habits and in theory use this for promotion or in pricing. The NBT is of the opinion that it should still be possible to consume media content anonymously in the future.

Proprietary formats
Several DRM systems are in use today. The best known and most used are connected to Apple’s iTunes and Microsoft’s Windows Media Player. Both of these use proprietary formats that stop music or film from being played on a player of the consumer’s choice. Some services in Norway today require that you have a specific media player to download content, i.e. Microsoft Windows Media Player.

If this type of connection between content and player becomes the norm, it can contribute to limiting the competition in the market for media players (hardware and software). It is recommended that The Norwegian Competition Authority should monitor developments closely.

From a consumer perspective, it’s important to get global, open standards in place, to ensure that all media players can read the digital rights information and relate to this. The choice of media player will then be entirely up to the consumers. The authorities can stimulate this by demanding open standards in public services that use DRM.

When is circumvention of technological measures OK?
The cracking of technological measures to expose security issues has been much discussed. It’s not unusual that research institutes and others identify security issues in software and then publish their findings. After the Digital Millennium Copyright Act passed in the US, research institutes have expressed a reluctance to publish findings out of fear of prosecution. The EUCD has suggested that the protection of technical measures should not restrict the possibility to do research on cryptology, so as not to run into the same problem.

Proprietary DRM systems pose a problem for the developers of open source software (OSS). In order for this type of software to be able to read proprietary formats (like Microsoft Word), they must “reverse engineer” the format to find out how to read and present it. The proposal to protect technical protection systems means that doing the same thing to a DRM format will be illegal.

The purpose of circumvention in this case is not to get access to the content for free, but to get access to the rights information in order to treat the content in the same way as the intended media player would.

The NBT sees the OSS environment as an important competition corrective in a market dominated by big software development companies. It’s therefore important that legislation in this area doesn’t limit OSS developers’ opportunity to deliver competitive solutions. Stimulating the development and use of open standards can be one way to go in this matter; another can be to open for an exception in the legislation similar to that of cryptology.

Bottom line
The Standing Committee on Family, Cultural Affairs and Government Administration gave its recommendations to Parliament on May 30th, and the act passed on June 4th. The consumer perspective got a broad place in the debate, and the outcome can also be perceived as consumer friendly, as it leaves an opening for circumventing technical measures to copy music from CDs to MP3-players (for private use). This means that the committee goes a lot further than the Ministry, that clearly stated that MP3 players should not be considered “relevant playback equipment. The committee explicitly states that the right to make private copies (“fair use”) shall exist also in the future. It also states that DRM-systems will be important to uphold intellectual property rights in the future, but that such systems should not violate privacy or consumer rights. It also states that shifts in the competition in the market for playback equipment should be watched and handled by The Norwegian Competition Authority. Even though the committee’s recommendations regarding privacy, consumer rights and competition are general, and it’s unclear how they will be upheld, it’s gratifying that these issues were in fact addressed. Only the future can show how it all will work in practice.

Sources

About the author: Christine Hafskjold works as a project manager with The Norwegian Board of Technology. Her main focus is projects related to ICTs, such as Software policy, ICTs and privacy, and eGovernment. Previous to her engagement with the NBT, Hafskjold has 10 years experience in IT consulting, both as a Project Manager and Systems Architect.

Status: first posted 18/07/05; included in INDICARE Monitor Vol. 2, No. 5, 29 July 2005; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=121