BEUC's motivation to present a position paper on DRM
There are two obvious reasons why BEUC published a position paper on DRM: first the HLG report, prepared by a group of stakeholders on behalf of the European Commission (High Level Group on Digital Rights Management 2004), did not address the issue of consumer acceptance and trust as scheduled. Thus BEUC attempts to fill this gap in its own right. Secondly, as BEUC did not support two of the three chapters of the final HLG report ("private copying levies and DRM" and "migration towards legitimate services") the paper is a way to put forward its own position. The dissent within the HLG is explicitly addressed in the paper: Overall the consumer organisation blames industry for failing to supply in time competitive services which consumers want (cf. p. 5). Instead it wishes to criminalise consumers, disregarding consumers' legal rights (cf. p. 5), refusing to clearly state what consumer rights it is actually willing to concede; with respect to P2P networks industry ignores legal uses and positive effects, and industry does not distinguish appropriately between commercial piracy and private uses. With respect to levy schemes BEUC even argues that industry is too inert to implement DRMs in order to phase out levy systems more rapidly (cf. p. 9).

BEUC's perspective on DRM
BEUC has a clear and pragmatic understanding of DRM as a means to protect rightholders against copyright infringement, to give rightholders greater control over digital material, and to allow more flexible and differentiated product offerings. DRM per se is neither good nor bad but it bears considerable risks: "The current course of DRM development seems to aim at creating a new relationship between right holders and consumers, with altered consumer rights, freedoms and expectations and towards the general replacement of copyright law with contract law and codes" (p. 3). What is at stake is a new balance "how best to balance in the public interest the rights of right holders and consumers in the digital environment" (p. 1).

This perspective on DRM obviously exceeds a narrow-minded focus on consumer interests. The reasoning of BEUC has two focal points: one is on fair B2C relationships and the second is on public policy and civil society concerns such as innovation and creativity, competition, public access, digital divide, privacy, data protection, and free speech.

BEUC's DRM requirements
In the following we will try to present the DRM requirements derived from the position paper without claiming to be exhaustive. We distinguish five areas of concern: (1) fair B2C relations and abuse of DRM, (2) shaping of technology, (3) creativity, innovation and competition, (4) legal framework, and (5) access and exclusion. The categorisation we use to reassemble the arguments and requirements of BEUC is different from the position paper's structure of content (see beginning of the interview with Cornelia Kutterer, BEUC, in this issue). We try to grasp the content properly and to put it under five headings indicating different clusters of policy concerns.

(1) Fair B2C relations and abuse of DRM
It is noteworthy that BEUC states that "fair trading" implies "fair use" (a central right granted by the legal framework in the US) and that fair use requirements therefore have to be acknowledged in Europe too (cf. p. 9). Of course contracts governing the use of digital material ought to be fair and transparent. BEUC is also in favour of labelling so called "usage-impared works" (like genetically modified food). In terms of business models, the consumer organisation asks for B2C business models based upon the first-sale doctrine (p. 3). Fairness implies that abuse of DRM has to be avoided in particular with respect to "unlimited post-purchase control" (p. 3) by rightholders. Abuse need not be restricted to undue usage control. There are other more fundamental ways of abusing the access to the consumer's device. In this respect the right of privacy and private data protection are vital. BEUC demands that common rules of data protection (essentially: not to collect more data than necessary for a specific purpose, and not to store data longer than necessary) are also respected by DRMs. Even further, BEUC is critical about trusted computing which may infringe on personal property rights, and of course BEUC is against "technical-self-help measures" aimed to punish deviant consumers.

(2) Shaping of technology
BEUC asks for "fair use by design", a statement concerning the development of technology. The concept is similar to the concept of "value centred design" (see Bechtold in this issue). To put this requirement into practice BEUC demands consumer participation at all levels of the standardisation process (p. 5). They also demand the involvement of privacy advocates.

(3) Creativity, innovation and competition
BEUC also addresses innovation and creativity, which could be stifled by DRM. Competition is a major concern in this context. BEUC argues that in highly concentrated markets price differentiation as enabled by DRMs will not lead to price competition. BEUC also holds that DRMs are used to segment markets (e.g. regional code of DVDs), thus hampering competition. A further argument is that DRM protection may hinder research and the development of new technology thereby foreclosing legitimate competitors from entering the market (p. 5). They also share the view of many that digital information on global networks brings about new prospects for creativity. This opportunity however is threatened by DRMs, because on the one hand DRMs may impose restrictive usage rules and on the other hand they may be used to lock-up works from the public domain. Apparently the European Consumers' Organisation is annoyed with collecting societies arguing that their "monopolistic structure" (p. 6) would hinder competition. Pro-actively BEUC recommends policy makers to "withhold any attempt to make DRM systems mandatory on any media whatsoever" (p.6).

(4) Legal framework
BEUC is by nature active in the context of legislation. It clearly demands "enforceable consumer rights which cannot be overridden by contract terms or deployment of DRM systems, or technical measures" (p. 6). This requirement is formulated against the background of the European Copyright Directive which makes it difficult in the eyes of BEUC to enjoy the right of private copy. The same position is discussed elsewhere under the header "user rights".

(5) Access and exclusion
Another set of requirements can be derived from political goals defined by the European Commission at various times, namely access for all and exclusion of nobody. These goals are explicitly and implicitly incorporated in policy documents and declarations like the Lisbon objectives or the eEurope 2005 Action Plan (cf. European Commission 2002). BEUC requests the European Commission to stick to its own goals and urges policy to take those effects of DRM into account which may hamper the achievement of these goals. DRM ought not hamper public access, nor increase the digital divide and discrimination of consumers with disabilities and elderly people. With respect to the last concern, DRMs should be compatible with assistive technologies. Another type of access restriction refers to limitations of free speech by DRM, i.e. "to control how and who gets access to information thereby limiting journalistic investigative activity, commentary, and other fair uses without which the fundamental human right could not be exercised" (p. 9).

Bottom line
In my view, the many facets of potential abuse of DRM systems presented, and the idea of deriving fair use rights from acknowledged fair trade were especially stimulating. The major difficulty I encountered was to understand why BEUC strongly advocates the right to private copy and at the same time the abolishment of the levy system as soon as possible (the "current levy system is unfair and should be ended quickly"; see also the interview with Cornelia Kutterer in this issue).

A more general point is about the limits of consumer organisations. DRM is by nature a systemic phenomenon where legal, contractual, and technological artefacts concur or interfere, affecting consumers, citizens and the public interest. This challenge is met by BEUC with a holistic approach to DRM transcending a narrow view of consumer interest. At the procedural level this is apparent in a participatory approach which sees a role for BEUC in stakeholder dialogues to achieve consensus and by requesting participation of consumers especially in the field of DRM standardization. The question is how a consumer organisation can achieve and organise the required competencies to directly influence technological developments at this level. The second question is how organized interests cope with an overlap of competency areas, e.g. consumer organisations and civil rights organisations, and which synergies or conflicts may result from this overlap.

PS.: A short remark on what to expect in this issue: for the first time you will find INDICARE interviews. My colleague Bettina-Johanna Krings talked to Prof. Dr. iur. Thomas Dreier, M.C.J., Director of the Centre for Applied Legal Studies, University of Karlsruhe about Creative Commons. The interview covers a broad range of questions, asking among other things about possible limitations on the one hand and possible new application fields for CC on the other hand. As Thomas Dreier is an outstanding expert in the field and played a leading role in adapting CC to German we can provide you with a thoughtful and knowledgeable interview. The second interview is about the position paper on DRM by Bureau Européen des Unions de Consommateurs (BEUC) issued this month. Cornelia Kutterer, Senior Legal Advisor at BEUC, answered to all my questions - even those not strictly related to the position paper. As it is very important for INDICARE to understand and reflect the position of consumer organisations, the editorial above has chosen the BEUC position paper as its subject.

Four articles in this issue deal with new socio-technical DRM developments and form an interesting thematic block. Stefan Bechtold, University of Tübingen Law School, introduces the concept of value-centered design of DRM and outlines some approaches which are currently underway in this direction. Niels Rump and Chris Barlas, Rightscom Limited, reflect the potential impact of bi-directional Rights Expression Languages and the consequences of such a paradigm shift. Gergely Tóth, SEARCH Laboratory, Budapest, gives an introduction to Privacy Rights Management (PRM), an interesting approach to combine DRM systems and Privacy Enhancing Technogies (PET) on common grounds. Roy Melzer, Reinhold Cohn & Partners, Tel Aviv, analyses - from a consumer and legal point of view - the potential and risks of Rights Locker architectures, a new approach to digital content delivery.

As in earlier issues of the INDICARE Monitor, we are happy to include a conference report on a hot topic. The overall question of the event was if Digital Rights Management is the end of collecting societies? "Not yet 'six feet under' " is the answer given by Christoph Beat Graber, Mira Nenova and Michael Girsberger, i-call, Lucerne.

Sources

About the author: Knud Böhle is researcher at the Institute for Technology Assessment and Systems Analysis (ITAS) at Research Centre Karlsruhe since 1986. Between October 2000 and April 2002 he was visiting scientist at the European Commission's Joint Research Centre in Seville (IPTS). He is specialised in Technology Assessment and Foresight of ICT and has led various projects. Currently he is the editor of the INDICARE Monitor. Contact: + 49 7247 822989, knud.boehle@itas.fzk.de

Status: first published in INDICARE Monitor Vol. 1, No 4, 24 September 2004; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=47