Rights Management Information (RMI) and Technical Protection Measures (TPM) when applied to works and performances under copyright are increasingly protected by law in countries throughout the world, to comply with the provisions of the WIPO Internet Treaties of 1996. These technologies when used together are most commonly known as Digital Rights Management (DRM) and have frequently been implemented in ways both Consumers and Creators see as harmful to their interests.
Instead of being used to provide essential information about creative goods, and or, for example, as the basis of provide an interoperable infrastructure for the development of new business models to make more flexible access to cultural goods possible, these technologies are used by intermediaries to unreasonably restrict legitimate use by the public without the consent or involvement of the creators or the public – on the contrary, usually over the strong objections of both.
There is a clear failure of the marketplace to provide implementations of these technologies that are constructive, interoperable, reasonable, and equitable. Despite repeated calls for a rethink of the current uses of these technologies by the consumer movement, creators themselves, and even independent phonogram producers, the abuse of these technologies continues – indeed, in many countries, the abuses continue to become more serious.
Creators and Consumers agree on the following principles and believe that they should be given the force of law in any part of the world where RMI and TPMs are themselves the subject of legal protection:
1. That the use of RMI to provide information about a work or performance, those who created it, and their rights in their creations, is useful, as long asprovided:
a. The information is accurate, and;
b. The RMI is used to provide information, not as the basis for a TPM.
2. [That RMI be used constructively – such as providing the ‘informational backbone’ facilitating the development of new business models that make creative goods available more flexibly, to more of the public, by helping the development of systems to equitably remunerate creators and rights-holders based upon actual uses of cultural goods in the digital environment equitably and transparently.]
3. That the abusive use of TPMs be prevented by obligating vendors of these technologies to assure that they cannot:
a. Prohibit, or limit, access and/or use which is lawful with respect to the works and/or performances being protected,
b. Be used to prevent access, or make access unreasonably difficult, for a use that is covered by an exception or limitation to copyright in connection with the works and/or performances in question were they acquired in any non-digital form;
c. Prohibit, or limit, access and uses which would be possible and/or permitted when the same materials are acquired in physical form,
d. Prohibit, or limit, access and uses which would be viewed as “fair use” or “fair dealing” by a reasonable person;
e. Be deployed without the active, informed consent of the creators and relevant rights-holders, or without successfully passing through the testing process referenced below;
f. Fail to interoperate across devices and/or platforms like personal computers, mobile communications devices, and consumer electronics which might reasonably be used by the public. In particular, interoperability must protect:
i. The ability of the creator to make his works or performances available under any licence terms he or she wishes;
ii. The freedom of software developers to disclose and licence under any terms whatever the source code which helps achieve interoperability;
g. Fail to comply with data protection rules or privacy rights generally, and in specific use registration or other personal information for secondary purposes without first obtaining the individuals' informed and voluntary consent. Failure to grant such consent shall not prevent the individual from using the creative goods in question;
h. Prevent access and use, or make access and use difficult, to anything that is in the public domain;
4. The extent and nature of any limitations these technologies may impose on the user should be clearly visible on any product or service so that the members of the public may make informed choices;
We believe that an essential component of giving legal effect to the above is the following:
1. A regulatory regime that requires the application for advance registration, and testing of new TPMs by an independent agency to ensure that they comply with the rules governing their use as outlined above, both when released and at any further time. This presupposes that retesting would take place in advance of material alterations of the TPM being introduced in the marketplace (i.e. upgrades as technology develops). No TPM which fails to pass through the testing regime should be used in the marketplace; conversely, Ssuccessfully passing the tests should allow the vendor of the TPM to display a mark that makes clear that the TPM has been approved and certified, giving the public, and the creator community, confidence that any restrictions imposed by the TPM are is both within the law and reasonable”follows the rules”;
2. In the instance that, despite the safeguards above, a TPM is used which breaches the above principles, any circumvention for a purpose or in connection with a use allowed by law or which is integral to a use permitted by the principles above-referenced shall be made lawful. Further, an affordable, expeditious, and transparent complaint mechanism must beis available for members of the public and the creator community to use against the vendors and/or suppliers which use such TPMs. The process should be capable of requiring that breaches of the above principles by vendors and/or those who make use of infringing TPMs must be remedied, and where relevant, egregious infringements allow for fines to be levied which are sufficient to form a deterrent to future infringements.