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EU sanctifies copyrights à la DMCA

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The European Commission has warmly congratulated the EU Council of Ministers for adopting, on 14 February, the Directive on Copyright, a Draconian, industry-accommodating law which harmonizes all EU Member States' copy regs to the constipated level preferred by multinational entertainment corporations.

Like the American Digital Millennium Copyright Act (DMCA), the Directive makes an absolute mockery of fair use, creating specific exceptions only for libraries and schools, and placing the entire process of making source material available in the hands of the copyright owners.

This, the Commission bleats repeatedly, is its idea of a "balanced compromise." Just how beautifully balanced we are invited to consider, presumably with admiration:

"Firstly, right-holders have complete control over the manufacture, distribution, etc. of devices designed to circumvent anti-copying devices. A more flexible solution in this regard would have carried a greater risk of abuse and piracy."

That's some fine balance there, all right: "complete control." What this would mean in practical terms is really quite simple: no more independent criticism of copyrighted digital works, period.

Imagine, for example, that one has a Web site offering truly independent film reviews (i.e., not just some industry-sanctioned promotional operation masquerading as such). One would naturally wish to pull out a clip or two, which could be viewed in connection with reading the review, to support the theme of one's critique.

This would normally be considered fair use, so long as the clips are short and relevant to the article. But we can forget about that now. Just as with the DMCA, it's impossible for a reviewer to legally reproduce a snippet from a DVD because it's a crime to break the encryption.

And there goes any semblance of independent criticism. The studios will control just what bits will be available, and to whom; and we can be certain that these will always be the most flattering, interesting, attractive bits, made available only to those reviewers who avoid negative reports.

In other words, unless you're willing to upload a movie's promotional trailer and insist it's really swell, you're going to have to break the law. Neat, huh?

And how's this for balance: "as far as private copying is concerned, the quality and quantity of private copying and the growth of electronic commerce all mean that there should be greater protection for right-holders in digital recording media (whereby unlimited numbers of perfect copies may be made rapidly)."

We see the same argument in the DMCA -- that digital media are so susceptible to mass pirating that all civilized concepts of fair use and personal archiving simply have got to be discarded -- and of course this is as it should be. The same ruthless gang of entertainment industry flacks, lawyers and lobbyists who wrote the DMCA also wrote the Directive.

And here the 'balance' you've no doubt been waiting impatiently to learn about comes in to play; but, predictably, it's been placed exclusively in industry hands: "in certain limited cases where right-holders have made the means available," we are assured, "private copying may be carried out."

And just in case the legislature of any Member State wishes to delight its corporate overlords even further, all exceptions to the industry death-grip on content may be dismissed as needed to achieve sublime harmony between Big Biz and the politicians who feed at its trough.

Hence, "there is now a detailed exhaustive list of exceptions to the reproduction right and right of communication to the public," we're told.

"All are optional, and Member States may choose to apply [or reject] any or all of these exceptions. However, the list is exhaustive which means that no other exceptions [like real ones, say] may be applied."

"This proved controversial," the EC allows. "Therefore, a 'grandfather clause' has been included which allows Member States to continue to apply existing exceptions in minor cases for analogue (not digital use) only."

How very magnanimous of them. ®

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