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Germany preps ‘second basket’ of copyright laws

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Munich The right to make private copies from digital sources and the introduction of Digital Rights Management are the hot topics in Germany's reform of its copyright law.

Just a few days after the first part of Germany's reformed copyright law was enacted, the German Minister of Justice Brigitte Zypries yesterday announced at a conference in Munich what experts call the "second basket" of copyright laws. Zypries said she wants to see the leftover provisions of the EU Directive of Copyright in the Digital Age enacted into law by next summer.

"There has been a fierce debate on whether a private copy could still be legal if it originates from an illegal source. But finally we had to decide to forbid this," she told the conference.

The first part of the copyright reform was rushed through last year to meet the EU deadline. Up for discussion still is how to treat the circumvention of copyright protection mechanisms. Provisions in EU and German law make this illegal, which in turn undermines the right to make private copies. This provision, similar to that of the US Digital Millenium Copyright Act, was attacked by Volker Grasmuck, co-founder of privatkopie.net, a user organisation.

"The first basket was offering much more for the copyright owners than for users and this has to change now," he told the conference. Grasmuck said it was unacceptable that copyright owners who shield their content by encyryption are relieved from the obligation to offer access for privileged users such as libraries, schools or disabled persons for one year, while privileged users in turn were told they had to wait to be able to exert their legal right. "It should have been much more the other way round," said Grasmuck.

"Journalists are unable to quote from, let's say, encrypted DVDs for their reports," said Eva-Maria Michel, Legal Counsel of the WDR Public Broadcasting Station. This is a violation of constitutional liberties of the media, she said. She warned that the copyright reform focuses too much on combating piracy and thereby destroy basic privileges in the copyright field.

The movie and music industries have, by contrast, set out to do away with private copies completely. Gerd Gebhardt, chairman of the German Phonographic Association, said private copies, at least for music and films, merely substituted buying the products and were seen as a convenience by consumers.

Baby, you can drive my car

"Consumers are not able to clone their cars, so why should the cloning of our products be allowed?" He reiterated once again the negative effect of piracy on the music market: "We've lost one third of our market and had to lay off several thousand people last year and in 2003 we expect a lose another twenty per cent. You may see this as a disaster."

Gebhardt said that the music industry would fight to restrict private copies to very special cases. "It is not our intention to harm the consumer, we just
cannot give away our products as free presents."

But Professor Reto Hilty, Institute for Foreign and International Patent, Trademark and Copyright Law, warned against using copyright laws to address economic problems.

"Legislators still have to work on balancing of interests between artists and users, but many of the problems talked about by industry representatives are just purely economic problems. They have nothing to do with the original intention of traditional author-focused European copyright law."

It was, said Hilty, in the interest of the industry to make their products and business models more attractive for consumers. So long as people had to pay €18 for a music CD and the royalty for the original author was not more than 72 cents users would hardly be inclined to perceive themselves as pirates when sharing CD copies. "When Universal overnight announces it is to cut prices by half, you as a consumer start to think about margins, don't you?"

Hilty noted the social duties attached to property, even intellectual property, responsibilities easily forgotten by Culture Industry as it lobbies for the abolition of traditional liberties. The rights of the Culture Industry therefore cannot be without restrictions; and access to communication has to be granted, he said. A change from Germany's traditional system of collective levies to individual charging systems based on Digital Rights Management had to be assessed very carefully, he said.

Gerry Wirtz, general manager at Philips Copyright Office in Eindhoven, told the conference that Europe had already ceded control of the development of DRM, which was driven by the US and Asia.

But while he warned that the different levies on all sorts of "copy machines" and "materials" that are distributed to artists and authors by the German Collecting Societies would block innovation, Hilty said DRM technology, still in its infancy, was anything but a cure to the problems. ®

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