I just got back from the 8th annual meeting of the Trans Atlantic Consumer Dialogue, a coalition of consumer organizations in the US and Europe. The meeting covered a large amount of ground, setting out the future course for the group, and also meeting with government officials to give them the consumer perspective on a wide variety of issues, from IP to information policy to food safety (you can guess which groups we were involved in).
The whole point of the coalition is not just to make sure that consumer groups in different developed countries communicate to each other, it also gives groups a way to address issues that can arise due to international agreements. Also, since the US and EU often take very different approaches to some issues, members can exchange information on how different regulatory tactics and business practices affect consumers around the world.
One of the major topics discussed at this past meeting was DRM. TACD recently issued its position on DRM, and during the meeting, members had the chance to talk with government officials who had read and responded to the position paper. The TACD paper sets out ten principles that should be followed if DRM is going to be something consumers can live with. These principles are suggested to governments as guidelines for good policy; they can be enacted into law, or merely used as guidelines for actions that will allow the marketplace to enact them.
The principles are:
- Principle of fairness
Consumers require fair access to, and fair use of, content. Normal consuming of content in the digital environment requires users to engage in time-shifting, place-shifting and limited sharing of a work. Therefore DRMs must respect consumer rights contained in the exceptions and exclusions in copyright law. They may not create a risk of losing access to a work due to discontinuation of a service or lack of a right to back-up copies of the work. DRMs shall not define social entities such as 'household' and 'families' in their technology more narrowly or restrictively than has been defined in local law or custom. DRMs shall not block the use of assistive technologies employed by disabled people. Finally, software producers should be allowed to make and distribute software that enables consumers to make use of their lawful rights and exceptions to copyright.
- Principle of end-user creativity
Fair access and use to content includes the ability to transform that content. Innovation, cultural and economic prosperity can only flourish if creativity is not unduly inhibited. Users need to be allowed to interact with the work. DRMs should not limit legitimate forms of building (remix, tweak, comment) upon creative works.
- Principle of Transparency
Consumers require sufficient information about any impact a DRM system may have on, for example, the potential uses of a work and the interoperability with devices in order to make informed product choices. Consumers must be given proper information on relevant product characteristics, including relevant restrictions on the work, effects on interoperability, and any modifications the DRMs may make to a user's devices. Consumers should also be made aware of applicable laws that would penalize them for circumventing DRMs. This information must not be hidden in small print or long and legalistic license agreements and it should be given prior to agreeing to a contract.
- Principle of proportionality
The impact of DRMs on functionality should be limited to what is necessary to protect copyright and should not otherwise affect a consumer's use of the works.
- Principle of privacy and data protection rights
DRMs should be compliant with data protection rules and privacy rights. The individual should be able to use the media without first having to disclose personal information, or consent to marketing or other secondary uses of their personal information. DRMs should not use registration, usage data, or other personal information for secondary purposes without first obtaining the individuals' informed and voluntary consent. DRMs should be able to guarantee the anonymity of the user.
- Principle of internet safety and security
The practical use of DRMs on the Internet may pose threats to consumers' security settings and therefore to the economic interests of consumers. DRMs must not result in unnecessary vulnerabilities to consumers' equipment or personal information.
- Principle of Interoperability
The lack of interoperability between different DRMs requires consumers to either purchase their content from one specific provider or use more than one device or platform to access their content. Consumers should be able to purchase content from any provider and use it on any device.
- Principle of competition and innovation
DRMs should allow innovation and facilitate new business models that fulfil previously unaddressed demand. They should give consumers the new choices that were the promise of the digital age. DRMs must not to be used to lock consumers into old business models and to limit consumers' choices in services and devices. Consumers must have real options for purchasing rights to works at different price points. The menu of options must not be unduly limited by content producers using market power or acting jointly to restrict choices.
- Principle of consumer rights
Consumers must have clearly defined and enforceable consumer rights that cannot be overridden by contract terms, DRMs or other technological measures.
Among the consumer rights that should be clearly expressed are:
- the right to private copy
- the right to fair commercial practices
- the right to be informed and refunded for faulty products
- the right to privacy and data protection
- the right to free speech
A simple and speedy alternative dispute resolution system should be established for DRM disputes so consumers do not have to rely on costly litigation for low value disputes, whilst retaining the right to use court action as a last resort.
- Principle of circumvention / removal
Consumers should be allowed to circumvent DRMs if any of their usage rights are not respected. If circumvention is technically not possible service providers must provide consumers with access to the protected content in a way that lives up to these principles. Generally, service providers that offer DRMs that do not live up to the above mentioned principles should have a legal obligation to take unlawful DRMs from the market and give customers their money back or access to the protected content in a way that lives up to these principles.
These principles reflect a combination of things that have affected consumers on both sides of the pond. For instance, end-user creativity is a well-established theme in US policy, especially given the breadth of fair use rights under the Copyright Act (in comparison to often-narrower limitations to copyright in Europe). On the other hand, a lot of “personal uses” of works in the US have to be brought into the category of fair use to be legal–something often difficult to do in court. EU directives allow individual countries to decide whether or not to provide a personal use exception.
Interoperability is an issue that regulators in the US haven't spent a whole lot of time on, but it's major stuff in the EU. Even before appearing at TACD, EU Commissioner Meglena Kuneva, who heads up consumer protection issues, noted problems with iTunes interoperability.
Unfortunately, the governments' responses to our concerns, and the discussions that followed, aren't attributable. But what I can say, and what is encouraging, is that on this issue, they definitely listened to what consumers had to say.