About Tim Kuik and BREIN: Mr. Kuik is the director of BREIN. BREIN stands for the Protection of the Rights of the Entertainment Industry of the Netherlands, and as a result, BREIN fights piracy of copyrighted works of the members of BREIN. Piracy is understood by BREIN as the unauthorised copying and distribution of copyright protected works. These works can be music, movies, games or interactive software. BREIN is not limited to any one type of works but aims to fight large scale commercial copyright piracy of all works for its members; offline (bootleg or counterfeit CD or DVD) and online (illegally uploading music) – no matter what the subject is.

INDICARE: Mr. Kuik, when were you concerned with Digital Rights Management (DRM) for the first time?

T. Kuik: From the 1980’s on, I have been concerned with DRM as a copyright expert for filmstudios. That was before BREIN existed (BREIN was established in 1998). A case I was involved in concerned the protection of pay-TV smartcard technology in Ireland. The smartcard was hacked and the problem was that if you reveal how the smartcards works in a civil or criminal law suit, you give away the blueprint and the security of the smartcard becomes worthless. There was a clear need for sui generis legislation prohibiting circumvention of the technological protection device, the smartcard, without giving away how the technology works. This legislation needed to prohibit not only circumvention but also distribution of circumvention devices. With the current legislation on the circumvention of TPMs, this sui generis legislation has been realised.

This issue also plays an important role for DRM systems relying on TPM. These can be hacked, see for example the DeCSS case some years ago. (This programme is capable of decrypting content on a DVD that has been encrypted by using the Content Scrambling System). From the 1980’s on, I promoted the use of DRM systems but it took a lot of development to make them acceptable for consumers, because they were either cumbersome and expensive or cheap but easy to hack.

INDICARE: What is your general view of DRM?

T. Kuik: In the view of BREIN, copyright owners should have the possibility to decide themselves how they want to exploit their work. Do they wish to exploit the work on the Internet or not? If they want to use digital exploitation on the Internet, they should have the possibility to either use a DRM system (and as a consequence to decide under which conditions they want to license the content) or to make available free downloads from their websites.

A DRM system can be protected by TPM. As you know, circumvention of TPM and distribution of circumvention devices is not allowed by the articles 29a Dutch Copyright Act and 19 Dutch Performers and Phonograms Act. So if copyright owners do decide to use TPM, and someone circumvents this protection measure, or someone distributes circumvention devices for a commercial purpose, BREIN takes action and sues the alleged infringer.

I think that when people talk in general about the definition of DRM, a distinction can be made. On the one hand there is simple DRM which aims at copy protection, and on the other hand there is more detailed DRM which uses watermarking or fingerprinting to distinguish individual works and/or makes it possible to charge for individual use.

When talking about download services such as Apple’s iTunes, an issue that will become much more important in the future is the interoperability of services. When services become interoperable, this is likely to lead to a greater acceptance rate of DRM systems by consumers. In my view, what is also important for consumers is transparency. When copyright owners do decide to protect their CD in a way that consumers cannot make a private copy of the CD any more, this should be stated on the CD. If it would not be stated on the CD, this would not be fair to consumers because they are used to being able to make a private copy.

INDICARE: The articles 29a and 19 already mentioned became effective in 2004. Have these articles already formed the basis of a prosecution initiated by BREIN in the Netherlands?

T. Kuik: Interestingly enough, on 21 July 2005 the District Court in Rotterdam gave his judgement on the first case initiated by BREIN involving the commercial distribution of circumvention devices. BREIN obtained an injunction against the company Teledirekt which distributed circumvention devices that have been ruled unlawful in the United States. The case concerned the programs DVD X copy Gold, DVD X copy Platinum and DVD Xpress. With these programs it is possible to circumvent the CSS on a DVD. It was advertised by Teledirekt in their brochure that this programme "is the most effective programme to make a copy of a DVD" and "it is able to handle all kinds of protection on DVDs". Moreover, Teledirekt's direct mail mentioned "Copy also protected DVD movies. Circumvents all protection measures". Teledirekt suggested that it should be possible to make a back up copy for consumers of DVDs and that their programme DVD X copy would enable this. The judge ruled though that the programme can be considered as a circumvention device and distribution of those devices is not allowed on the grounds of 29a of the Dutch Copyright Act.

INDICARE: This case concerned the distribution of circumvention devices. Are there also lawsuits expected on the circumvention of TPM?

T. Kuik: Of course, when cases arise, these will be pursued by BREIN with civil enforcement actions. At the moment, what we see occurring in the Netherlands, is the distribution of circumvention devices and methods instead of the hacking of technological protection itself.

INDICARE: You said earlier that every kind of protection ultimately is hackable, do you think TPMs are efficient enough to protect copyrighted works?

T. Kuik: Yes, in my opinion they suffice for protecting works although there always is the possibility that a TPM can be circumvented. That is why legislation prohibiting circumvention and distribution of circumvention is required.

INDICARE: Recently the Enforcement Directive (Directive 2004) was adopted. Will this Directive influence the current possibilities for enforcement of copyright (thinking for example of article 8 which encompasses the right to request information in the context of proceedings concerning an infringement of an intellectual property right)?

T. Kuik: This Directive will certainly clarify the current situation with regard to what internet providers should do when a copyright infringement occurs. For instance, BREIN sued several internet providers because they refused to give the name and address data of certain alleged infringing users of peer-to-peer networks. The judge ruled that BREIN is entitled to ask the providers for this data and that the providers should consider supplying those to BREIN. In the circumstances of the particular case the judge denied BREIN’s claim, in short because use was made of an American company to collect IP addresses and download data.

INDICARE: The making of a private copy is allowed on the basis of article 16b and 16c of the Dutch Copyright Act. Imagine someone circumvents a TPM for making a private copy. What is your opinion about this?

T. Kuik: First, I would like to mention that in principle the private copying exception is not a right for consumers but an exception to the exclusive right of copyright owners. When it is possible to make a private copy, then there is no problem. Again, transparency as to whether it is possible to make a private copy, is very important. In my opinion, circumvention to realise a private copy, should not be allowed. The risk exists, that everyone will say that they are making a copy only for private use. Where should you draw the line in that case? It is very hard to make a proper distinction between the honest consumer who makes a private copy indeed intended for own personal use or study and the dishonest consumer.

INDICARE: In Italy it is also not allowed to circumvent a TPM, but in case this occurs for the purpose of making a private copy, the punishment will be less severe than when circumventing occurs for commercial purposes. Should this example be followed in the Netherlands?

T. Kuik: In civil law suits it is the judge who decides on the punishment. Probably he will take into account that circumvention took place to make a private copy. I think this case is hypothetical because if indeed the copy was made as a private copy, no one will find out about it. Only in the circumstance that the maker of a private copy takes another action, for instance placing instructions on how to circumvent a certain device on the internet, his circumvention becomes public. At that moment, his behaviour can not be seen merely as the making of a private copy anymore, he does something more and will be liable accordingly. BREIN only acts when one is able to speak of an activity of commercial significance; the making of a private copy would not qualify, but offering circumvention devices or placing information on a website on how to circumvent a TPM certainly does!

INDICARE: Who should in your opinion be liable for guaranteeing the protection of the consumer: the consumer, judge, legislator or consumer organisations?

T. Kuik: The legislator is the one who is responsible for balancing the rights of rightholders and consumers. The next step, clarifying the law, will be the responsibility of the judge. Consumer organisations also play an important role because they are able to present consumer interests to rightholders, for instance about making use of the exceptions that are incorporated in the Copyright Act. I believe that it all comes down to what the consumer wants because the end goal of the rightholder is to get his product to the consumer.

INDICARE: What will in your opinion be the future of legal download services versus the peer-to-peer networks?

T. Kuik: At the moment the market share of legal download services is growing rapidly and even legal file sharing of music is in development, for instance Snocap by Shawn Fanning of Napster fame. When downloading music, consumers will take the easiest and fastest way which guarantees the best music quality. Peer-to-peer services do not guarantee music quality or even that you find what you asked for and, moreover, there is the risk of not only downloading the music file but also spyware. When there are more legal download services people will use these more and more because they know it is good quality music and more important, the one offering the music can be identified and addressed.

INDICARE: Mr Kuik, thank you very much for this interview!

Sources

Status: first posted 25/08/05; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=131