Aiming for balance
A working group set up by The Danish Board of Technology is about to issue a report on the project “Digital rights in the information society” (Teknologirådet 2005). Over the past year the board has facilitated a stakeholder discussion of the consequences and implications of the digitalisation of information and DRM. The aim is to provide politicians and decision makers with an overview of the discussion, and to provide recommendations regarding the use of DRM within the public sphere. The main objective and at the same time the key challenge was to strike a balance between consumer interests and content creators’ legitimate rights. It would be a Pyrrhic victory indeed should the digital technologies, promising new possibilities for communication and distribution of information, instead lead to restrictions, limitations and boundaries for citizens’ access to digitalized information. It is therefore evident that a balance must be restored between consumer interests and content creators’ legitimate rights.

DRM – the problem solved?
The report describes how the term Digital Rights Management (DRM) has been used to describe dissimilar technologies (Dykstra 2003). Since DRM, as of today, is not considered a clearly defined concept, stakeholders have produced equally diverse assessments. This in turn has led to much discussion in the group about the usefulness of such a concept. Moreover, practical experiences are limited in relation to the implications as well as the benefits of this technology (or technologies). Some stakeholders expressed great expectations regarding the future potential of DRM technology, while others expressed equally strong technical reservations and privacy concerns. Evidently, insufficient experience with the practical application of DRM systems and uncertainty about their technological potential has made any assessment dubious.

The most important arguments for DRM are that DRM can increase protection against piracy and illegal distribution of content and make technical enforcement of rights possible. Furthermore, using DRM new business models and distribution forms can be established for instance through direct distribution to the end consumer.

The most important arguments against DRM are that DRM can technically hinder the moving of information between platforms and applications which in turn will undermine interoperability and the opportunity for the user to choose technology. Furthermore, legal protection of DRM can reduce innovation and research in digital technologies and thus the competition on this market. Finally legal protection of DRM can erode exemptions for certain user groups provided by the Danish law on copyrights / intellectual property right.

Among the participants of the working group, there were different interpretations of the consequences the implementation of the EU InfoSoc directive (EUCD 2001) might have in this respect. Some said the use of DRM technology as defined in the directive would de facto prevent the use of certain consumer exemptions granted by the law, while others held that it was a minor issue with limited practical consequences and, furthermore, that the rightholders should be conceded the privilege to limit or expand consumer access.

The case of netmusic
Facing these opposing assessments the members of the working group chose to work with an exemplary case, i.e. public libraries including research libraries. Libraries seemed an obvious choice since they provide access to a broad range of information that is increasingly available in digital formats, while they are also obligated by law to provide free access for their national audiences as well as to ensure quality, diversity and actuality (Thorhauge 2005). The case included past experiences and future expectations and challenges libraries are facing with respect to digital information.

One of the key elements was the concept of "netmusic", a service hosted by the public libraries that allows citizens to download music over the Internet and listen to it in a period of seven days free of charge (see also Nielsen 2004). Netmusic is based on Microsoft’s DRM system, which as of now means that music playback is limited to the Windows Media Player, thus excluding users of Linux, Mac, portable music players and home stereo devices among others. The explanation for this choice of DRM is that only this particular brand could reassure content providers on safety issues and make possible an agreement on the terms. The consumer is thereby licensed to listen to, but not copy the music. Today the netmusic service includes around 6,500 albums. Some 800 tracks are downloaded daily, which comes to a modest 0.2 percent of the total loan of CDs. The service is being criticised for lack of variety as well as disregard for most consumers’ music listening behaviour (Teknologirådet 2005).

It is still only a relatively small selection of digital works that are available at the libraries, when it comes to books, music and films, while research articles are widely digitalised. The former is in part due to lacking or insufficient agreements between libraries and owners of rights, while the latter is due to the relatively limited risk of mass distribution. Furthermore most agreements on distribution of research journals and articles are negotiated at international level.

Since the working group consisted of several stakeholders, the discussions and disagreements on DRM reflected many of the conflicts that one may find in the more general debate on the relation between private and public information providers. To some, DRM represented a possible basis for new agreements and business models, while also preventing piracy. To others, DRM systems constituted a technical system that could take precedence over the legal system and shift the balance between consumer rights and the holders of rights. So it seems that the technical discrepancies of the assessment of DRM were repeated on an institutional level.

An important conclusion from this work therefore is that it is impossible to assess technology as such – without considering the possibly conflicting perspectives that different stakeholders may have on the use of such technology. In technology assessment (TA) this insight is far from new – but it is often forgotten.

Striking a balance? The two main problems
Using public libraries as an example, the work group has considered the conditions for the implementation of DRM technology. Without reaching an agreement, however, it was debated whether the legal protection of technical protection measures (TPM) might actually put citizens and public providers of information at a disadvantage when using digital works as compared to analogue works. When the EU InfoSoc directive was implemented in Danish law, it was decided to maintain the exemptions stipulated in Chapter 2 of the Danish Copyright Law, but it has remained a disputed question, whether the use of DRM will render some of these exemptions impractical (Teknologirådet 2005).

According to some, users must be able to freely decide what to download and when, in order to ensure that the potential of digital technologies is fully utilized. Whether this is possible without affecting the conventional use of the material or violating the legitimate interests of the copyright owners, however, was not agreed upon.

The work group has not taken into consideration which division of tasks between public and private providers of information would be most appropriate in the future. Should public providers of information continue to play a mayor role in the general supply of information?

Two main problems will arise in any case: the need for new usage rights and the need to develop new DRM systems which meet new requirements.

1. New usage rights
In order to make better use of new technologies, it is imperative that copyright owners and public providers of information agree on new usage rights in relation to the distribution and consumption of digital works. Such agreements between the parties have proven difficult to achieve due to the copyright owners' general hesitation to make digitalized information available for public distribution and usage. The main reason for this is the risk of illegitimate use and distribution of content. Should such agreements result in an increased uncompensated use of copyright holders' works, this may necessitate increased financial funding. Also it may become necessary to establish other clearing agreements. If new usage rights are not established, this may lead to a decrease in the volume of digital works accessible to the public. Likewise, the available volume of works may not be able to meet the demand in terms of quality, diversity and actuality.

2. Required features of DRM Systems
Danish politicians and officials should try to reach an agreement on the required features of DRM systems, and they should consider to work towards an international standardization of DRM systems. The alternative may be a proprietary market that may be harmful for competition and put users at a disadvantage.

Clearly, public stakeholders – potentially large users and consumers of DRM – should demand special features of these systems and thus ensure certain minimum standards, such as interoperability and open standards. As described earlier, the various types of DRM technologies differ greatly. It is therefore highly important to assess how much particular systems may interfere with the behaviour of consumers. The question remains, however, if systems that merely state the relevant copyrights to the end-user would suffice, or if we should implement systems that serve to further regulate user behaviour, such as the system already employed by Danish public libraries in their digital music service "netmusic" or even Trusted Computing. The disadvantages of the latter are the potential limitations of free choice of technical platforms and privacy concerns (Schneier 2005). Politicians ought to debate whether DRM technologies used within the public domain must take into account the consumer exemptions stipulated in Chapter 2 of the Danish Copyright Law.

The need for further debate and coordination
Inherent in this discussion on the consequences and implications of DRM and digital distribution by public providers of information, are problems and challenges related to a range of different political domains.

Legal problems and challenges
Do DRM systems and their ability to enforce conditions of use across national borders, including the collection of personal data, make it necessary to change the existing laws? Furthermore, should the present legal protection of DRM technology in the Danish Copyright Law be continually reviewed? The Danish Parliament should take this into consideration when reviewing the rules of the legal protection of technical protection measures of the Copyright Law.

Market related problems and challenges
Should we establish new usage rights that make it possible for public services to distribute digital works? Do we need to keep an eye on the level of competition involved in the use of DRM technology? Is there a risk that the legal protection of DRM can serve to keep unwanted competitors off the market?

Technological problems and challenges
In order to enhance free competition the various DRM systems should be interoperable and it should be secured that using DRM technology will not violate citizens' rights of privacy. Which features should public providers of culture and information then require of DRM systems? Should the various public stakeholders be able to make individual DRM-agreements with copyright holders, or should the public as such require a set of general features?

Problems and challenges of cultural policy
Publicly financed cultural institutions must continually secure a selection of digital works that adheres to the legally binding demand for quality, diversity and actuality. Which features must they then require of DRM systems and the production of digital content in order to be able to fulfil these obligations to the public – just as they have hitherto been able to fulfil the legally binding obligations in reference to analogue material? Is it feasible that new usage rights can be established on the basis of the present financial resources – or is further funding necessary?

Bottom line
In conclusion, the experiences are limited and DRM is still a technology in the making. Public libraries and other information providers have yet to explore the possibilities of both digitalised information and DRM, with respect to their obligation to meet certain standards of quality, diversity and actuality. Therefore the parties need to form agreements on the right of usage of digitalised information. As a part of this agreement DRM technology should be considered, but to ensure interoperability an open standard may be required. To fully explore these findings the Danish ministries of Culture, of Science, Technology and Innovation and of Economics and Business Affairs should intensify their corporation in the areas mentioned. Furthermore, politicians and officials should continue the attempt to establish a wider consensus on the long-term prospects in order to attain a balance between the copyright holders' legitimate demand for payment and the citizens' need for free access to information.

Sources

About the author: Jacob Skjødt Nielsen is a project assistant at the Danish Board of Technology and a Master’s student of social science and technology. Contact details: Jacob Skjødt Nielsen, phone direct +45 33455361, e-mail jsn@tekno.dk, The Danish Board of Technology, Antonigade 4, DK-1106 Copenhagen K, Denmark, http://www.tekno.dk

Status: first posted 29/09/05; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=143