Per Helge Sorensen (phs/at/digitalrights.dk), Digital Rights Denmark
The Directive was implemented in Danish
legislation on
The last major revision of the Danish law was carried out in 1995 when the law went through a general revision and was brought up to date with the latest technological developments. Since then a number of smaller revisions of the law have been carried out, especially to deal with the issue of private copying of digital works.
The proposal for a new law was put
forward to Parliament by the Minister of Culture on
· Most of the existing Danish law was already in accordance with the Directive. The main areas where the Directive gave rise to changes in Danish law were:
· Narrowing of the scope of a number of existing exceptions (to cover only non-commercial use)
· Clarification of the legal status of intermediate copies
· Narrowing of the scope of the exception allowing for private copying (regarding non-digital works)
· Protection of effective technical measures (DRM-systems)
· The relation between exceptions and the protection of technical measures
· Protection of rights management information
· Change from international to Community exhaustion
These issues are described in detail below.
Furthermore the Directive gave rise to a number of minor changes in the structure, the legal concepts and the wording of the Danish law. Since these changes were mainly of a technical nature they will not be discussed here.
Although the main purpose of the new law was to implement the Directive, some additional changes are implemented that were not related to it. The most important were:
· addition of a new legal licence to allow libraries to distribute articles and text excerpts to their users in digital form (by e-mail etc.)
· addition of a new legal licence to allow public service broadcasters to reuse material from their archives
· widening of the exception regarding study and research at public libraries to cover all published works (allowing the libraries to supply the users with radio, television and Internet browsing).
Since the scope of this report is to discuss the implementation of the Directive these changes will not be discussed here.
For most part the exceptions listed in Article 5 of the Directive are identical to the exceptions that were a part of the existing Danish law.
The main differences are as follows:
Photocopying (Article 5.2(a)) was not treated as an exception in the existing Danish law. Instead the law allowed for a legal licence that requires schools and universities to negotiate compensation with a collective rights management body (approved by the Ministry of Culture) representing the authors. This was kept unchanged in the new legislation.
Exceptions for satire (5.3(k)) and explanation and repair of equipment (5-3-l) were not part of the existing law and were also not included in the new legislation.
A number of exceptions had a broader scope in the existing Danish legislation than is allowed for in the Directive. In the existing Danish legislation exceptions for libraries and museums, exceptions for time shifting in hospitals and prisons and exceptions for disabled people allowed for copying also in connection with commercial activities. Since the Directive allows for only non-commercial use it was clarified in the new Danish law that the exceptions only apply for non-commercial activities. In these areas the implementation of the Directive (in principle) meant that the scope of existing exceptions had to be narrowed. Still the practical implications will probably be few since the exceptions in nature deal with non-commercial use (hospitals, libraries etc).
In the existing Danish legislation intermediate copying that takes place as a part of an integrated technical process (caching etc) was not regarded as copying in a legal sense and was therefore not protected by the law. Article 2 of the Directive explicitly states that both permanent and intermediate copies are protected. In the new Danish law it was therefore clarified that intermediate copies are protected. This was done simply by including the wording of Article 2 of the Directive in section 2.2 of the new law.
At the same time, however, the Directive requires an exception for intermediate copies (Article 5.1). This was implemented as a new section 11a in the new Danish law. (Since intermediate copies were not protected the exception was not needed in the old law).
Overall the legal status regarding intermediate copies was left more or less unchanged.
The exception for private copying of non-digital works in the existing Danish law was quite broad, allowing for private copying to people in the private sphere of a (physical) person: friends, acquaintances, relatives and (in some cases) even colleagues. For digital works the exception was narrower allowing only for copying for personal use by the person himself or by people in his household.
Since the Directive does not allow for private copying in connection with commercial activities the scope of the exception for non-digital works was narrowed to cover only non-commercial use in the new Danish law. The exception for digital works was left unchanged since it was already in accordance with the Directive.
The existing Danish law contains an exception allowing for (non-digital) copying of sheets with song lyrics to be used at a public meeting. For historical reasons singing at meetings is regarded an important part of the Danish democratic tradition and the exception was therefore kept in the new law with reference to Article 5.3(o).
|
Article |
Subject |
Part of existing legislation? |
Implementation in Danish legislation |
|
5-1 |
Intermediate copies |
No |
New section 11a |
|
5-2-a |
Photocopying |
Yes |
Covered by legal licence for educational institutions etc. |
|
5-2-b |
Private use |
Yes |
Sections 12-1 and 12-2. Limited in new legislation to rule out copying in connection with commercial activities. |
|
5-2-c |
Libraries, museums, archives |
Yes |
Section 16. New legislation rules out commercial activities. |
|
5-2-d |
Broadcast |
Yes |
Section 31 |
|
5-2-e |
Time shifting in hospitals etc. |
Yes |
Section 15 New legislation rules out commercial activities. |
|
5-3-a |
Education and research |
Yes |
Sections 13, 18 and 21. New legislation rules out commercial activities. Education is covered by legal license |
|
5-3-b |
Disabled people |
Yes |
Section 17 New legislation rules out commercial activities. |
|
5-3-c |
News |
Yes |
Section 23-3 |
|
5-3-d |
Quotes |
Yes |
Section 22 |
|
5-3-e |
Public safety, administration etc |
Yes |
Sections 26 and 28 |
|
5-3-f |
Public debate |
Yes |
Sections 26 and 32 |
|
5-3-g |
Religious ceremonies |
Yes |
Section 21 |
|
5-3-h |
Art on public display |
Yes |
Section 24-2 |
|
5-3-i |
Inclusion |
Yes |
Sections 23-4 and 25 |
|
5-3-j |
Exhibition or auctions |
Yes |
Section 24-1 |
|
5-3-k |
Satire, parody |
No |
Not implemented in new legislation |
|
5-3-l |
Display of equipment, Repair |
No |
Not implemented in new legislation |
|
5-3-m |
Construction |
Yes |
Section 24-3 |
|
5-3-n |
Study or research at libraries |
Yes |
Section 21-3 Extended in new legislation to cover radio, television and Internet browsing |
|
5-3-o |
Existing exceptions of lesser importance |
Yes |
Section 18-3. Used to keep exception in existing legislation that allows for the copying of song lyrics to be used at a public meeting. |
Compensation for private copying is implemented in Danish legislation as a flat rate tax on blank audio and video recording media (audio and video tapes, CD-ROMs etc). The compensation is redistributed through the organisations representing rights owners. Part of the compensation is distributed through funds offering grants that rightsholders must apply for. The remainder is distributed through a fixed system containing a complex set of weights that decides the size of the share that each art form and each artist gets.
Digital copying was made legal by a revision of the Danish law in 1998. Since then a revision of the system for compensation has been discussed between representatives of the rights owners, representatives of the IT industry and the involved ministries (Culture, Science and IT). In the discussions rights owner organisations argued for higher taxes and to extend taxes to also cover hardware devices (hard discs etc) in order to compensate for the lost sale (arguably) caused by private copying.
Because these negotiations have not yet been completed a revision of the compensation system was not implemented as a part of the new Danish law. When the negotiations are completed a separate law on compensation is expected to be put forward.
Article 6 is implemented in section 75 of the new Danish law. The existing law already included a section (s78) that prohibited distribution or (with commercial intent) possession of technical means that had the sole purpose to circumvent technical measures to protect works in digital form. With the implementation of the Directive in the new law the circumvention itself was made illegal.
Article 6.1 in the Directive was implemented in the new section 75(c)(1). This states that circumvention of effective technical measures is illegal unless permitted by the rights owner. The circumvention is illegal even when the purpose of the user is to exercise his rights according to one of the exceptions of section 2. (The relation between the exceptions and the technical measures is discussed below).
Article 6.2 was implemented in section 75(c)(2) and 75(c)(3). The first section states that actions that can facilitate circumvention of effective technical measures are illegal. These actions include:
· production, import, distribution, sale, rent of
· advertising for sale or renting of
· possession with a commercial intent of
· devices that can facilitate circumvention of effective technical measures if (either:)
· the devices are sold with the intent to circumvent effective technical measures
· the devices have no (or limited) other commercial purpose or use other than circumvention of effective technical measures
· the devices were developed primarily to facilitate circumvention of effective technical measures
Section 73(c)(3) states that 75(c)(2) (dealing with devices) also applies for services. This implies that companies offering help to circumvent effective technical measures can be punished. Also people publishing instructions on how to circumvent effective technical measures on a web page would most likely fall under the sections provisions.
In the explanatory text of the new law several points regarding circumvention of effective technical measures were clarified:
· Measures should be effective in order to be covered by the protection of the law. Copy protection schemes that in reality do not prevent the user from copying the work (and where the user might not know he is circumventing a system) are not protected
· Measures are only protected if they are used to prevent copying of a work that is protected by the law. Circumvention of a DRM system that is used to protect a work that is not protected by the law (if protection is expired, if the rights owner has not agreed to use the system etc) is therefore legal.
· Only measures that are used to prevent copying are protected. The law does not protect systems that are designed to control the user's own use of the work this includes (in the view of the Danish Ministry of Culture) the DVD region coding system. Also it is not illegal for a user to circumvent a system if the (sole) purpose is to make use of a work he has lawfully acquired for example to make it possible to view a DVD on a Linux platform (which turned out to be an important point in the debate on the new law).
The Danish law simply repeats the statement in the Directive that the law doesn't prevent research in cryptography. In the discussions of the law the Minister of Culture was asked to clarify that. In his response he stated that the section implies that it would be legal to circumvent a DRM system if it is done as a part of cryptographic research and that it would also be legal to teach methods to break DRM systems at a research institution.
The discussions on interoperability were dismissed by the Minister in the debate by referring to the fact that the sections on effective technical measures do not apply for software and that reverse engineering of software will still be allowed according to the old rules that allow for reverse engineering when the intent is to ensure interoperability.
The relation between the exceptions of section 2 and the protection of effective technical measures is addressed in section 75(d) of the new Danish law.
As in Article 6.4 of the Directive the starting point is that rightsholders should make it possible for users that are covered by the exceptions in section 2 to make use of the exceptions. One way of doing this is through an agreement between the rights owner and the group of users covered by the exception (i.e. disabled people).
If an agreement can not be reached section 75(d) of the Danish law gives the users (and the rightsholder) a right to take the case to an administrative body: The Board for Intellectual Property Rights ("Ophavsretslicensnaevnet"). The board can instruct the rights owner to make the works available for the affected group of users in a form that allows the users to make use of the exception. How this should be done will be decided on a case-by-case basis: by making cryptographic keys available, by making the work available in non-digital form, by making decryption devices available etc.
If the rights owner has not complied with an instruction of the board to make the work available after a period of four weeks the user will be allowed to circumvent the technical measure on their own. Notably this is the only way that users can exercise their rights if rightsholders refuse to make the work available. The law establishes no sanctions for rightsholders that do not comply with the instructions of the board.
Complaints over decisions made by the board can be brought up before the Danish courts.
It is important to clarify that section 74d does not apply for the exception that allows for private copying.
In the explanatory text of the proposal for the new law the reason for this is stated as follows:
· that the main reason for Article 6 in the Directive is to encourage rightsholders to use effective technical measurements in order to stop widespread piracy
· that it would undermine the development and use of these systems if rightsholders can be instructed to hand out decryption tools to every private user who wishes to make a personal copy
Private users that are prevented from making use of the exception that allows for private copying by a DRM system therefore have no other means to exercise their right than to perform an illegal circumvention.
Article 7 of the Directive is implemented in the new section 75(e) of the Danish law.
Section 75(e)(1)(1) makes it illegal to remove or change rights management information.
Section 75(e)(1)(2) makes it illegal to distribute, publish, broadcast or in other ways transfer works where rights management information is removed or changed.
The second part of the section (75(e)(2)) clarifies that the acts above are only illegal if the person performing them knows or should know that the consequence of the act is that a protected work is illegally copied or that illegal copying of a protected work is facilitated, made easier or hidden.
Also the explanatory text of the Danish law clarifies that the section only applies when rights management information is used on works that are protected by the law (as for the protection of technical measures).
The penalty for violating section 75(c) on effective technical measures and 75(e) on rights management information is a fine. The Danish law contains a specific section on liability for copyright infringement (section 83) but this does not apply for section 75(c) or 75(e). Persons that circumvent effective technical measures or remove rights management information can however be liable according to the general Danish rules on liability.
A number of organisations representing rightsholders have asked for more severe sanctions for copyright infringement. Also they have pointed out that the sanctions for violating section 75(c) and 75(e) in their view are too mild.
In September 2002 a Commission on Cyber Crime (under the Ministry of Justice) proposed to increase sanctions for copyright infringement which would also naturally affect the sanctions for violating section 75(c) and 75(e). The Ministry of Culture felt that this proposal should be discussed broadly among affected parties before changing sanctions. Sanctions for copyright infringement in the new Danish law are therefore not altered and sanctions for violating 75(c) and 75(e) are relatively mild. At the same time it must be expected that a proposal to increase sanctions will be put forward when the report from the Commission on Cyber Crime has been discussed.
Circumvention of effective technical measures is illegal if done with intent or if the perpetrator should have known that the consequence would be that an effective technical measure was circumvented. Likewise possession, distribution etc. of devices that facilitate circumvention is illegal if done with intent or if the perpetrator should have known.
Removal of rights management information is only punishable if done with intent.
In order to comply with the Directive the new Danish law moves from international to Community exhaustion of rights. In the negotiations of the Directive the Danish government strongly opposed Community exhaustion (together with other Nordic countries). Since the Directive ended up demanding Community exhaustion the Ministry of Culture had no other choice but to change it in the new Danish law (although it is pointed out that the Danish government will continue to put pressure on other Member States in order to change the principle back to international exhaustion).
Since the main focus of this chapter is the implementation of the new rules on circumvention of effective technical measures and rights management information the description below of the discussions of the new Danish law will focus on these issues leaving out discussions of other parts of the new law (Community exhaustion, new legal licenses etc).
As in most countries, illegal copying of digital works (CD burning, file sharing on the Internet etc.) has received a lot of attention in Denmark over the past 23 years. Recording companies have been especially eager to point out the "devastating effect" of piracy on their sales.
Organisations representing rightsholders have formed an anti-piracy organisation ("Anti-piratgruppen") that has been very active in their fight against piracy, among other things through:
· actions directed towards "net-parties" where users (mostly teenagers) swap files
· actions directed towards the file sharing networks surveying the use of the network, registering IP-addresses of users that supply selected files (popular music or DVD movies) and (with a court order) getting names and addresses of these users from their ISP in order to prosecute them
· lobbying and PR
All in all the organisations representing rightsholders and the big media companies have succeeded in creating a public sentiment that:
· piracy and file sharing is a serious threat for the creative businesses especially the recording business
· it is the artists (musicians, authors...) that are the main victims because dropping sales means less income for artists
· piracy therefore is a threat to the creation of art in society
A few commentators have tried to point out that file sharing and digital distribution channels could be a new opportunity for (especially smaller) artists and that what is really threatened is the old distribution channels of big media companies. This view has not received much attention, however, because it has been overshadowed by high profile artists (such as (Danish) drummer Lars Ulrich from Metallica) complaining that piracy destroys their sales and because most artists let their organisations and distributors (recording companies, publishers) represent them in the debate rather than getting personally involved.
In general the media has taken the views of rightsholders and media companies. A few stories of frightened 13-year-old teenagers that have been accused of creating damages of millions of Euro for rightsholders and fined huge amounts after having participated in rather innocent net-parties have reached the media. But although most journalists realise that it is probably not a good solution to take it all out on a poor teenager in general they accept the fundamental premise of media companies that file sharing and piracy destroys the income for media companies and artists.
Public opinion before the debate on the new Danish law must be described as follows:
· that computer and Internet users cannot be trusted
· that piracy will flourish if nothing is done
· that this is a serious threat to artists and creation of art in society
Against that background it was a natural conclusion that DRM systems are a necessary means to stop this development and that circumvention of DRM systems must be avoided in order to prevent the new solution being undermined.
As could be expected the rightsholders and media companies formed a broad front to support the provisions in the new law that prohibit circumvention of DRM systems. Organisations representing artists (authors, musicians etc), organisations representing media companies (publishers, recording companies etc), various rights management organisations (Gramex, Copy-Dan, Koda etc.) all expressed strong support for the new provisions.
At the same time a number of these organisations expressed concerns that the penalties for circumventing DRM systems in the proposal were too mild and that imprisonment (up to one year) should be used as a penalty in severe cases.
(As described above the discussion on sanctions was postponed because of a pending report from the Ministry of Justice Cyber Crime Commission. Based on the comments on the new Danish law from rightsholders it must be expected that there will be strong support for stronger penalties when the report from the Cyber Crime commission is sent out for comments).
More surprising, the Danish Council of Consumers ("Forbrugerraadet") expressed support for DRM systems in the discussions of the new law. This was based on the view that DRM systems are a better way of ensuring that the consumer gets what he pays for and that the money ends up with the right artist: better than with the system of compensation through a flat rate tax on blank recording media. The problem with the tax on blank media is that:
· all consumers have to pay the tax even consumers that do not use the media to copy protected works
· the compensation is returned to the artist through grants and fixed distribution systems that do not ensure that the artist whose work is actually copied is also the artist that receives the compensation.
The Council of Consumers therefore supports the development of DRM systems provided that the tax on blank media is reduced when DRM systems gain widespread use.
The main opposition to the proposal to prohibit circumvention of DRM systems came from a newly formed organisation: The Initiative for Digital Consumers Rights ("Initiativet Digitale Forbruger Rettigheder, IDFR").
IDFR was formed directly as a response to the proposal for the new Danish law and consisted of a broad group of people interested in the subject: people from the Open Source community, IT-experts, legal experts, etc.
IDFR conducted an effective lobbying campaign directed towards Members of Parliament and media and ran a petition on the website: www.digitalforbruger.dk that collected more than 4000 signatures.
In their campaign IDFR focused on the following points:
· That DRM systems will constitute a new "technical" copyright system that takes precedence over the legal copyright system and shifts the balance between consumer rights and the rightsholders giving too much power to the rightsholders and preventing the user from exercising his rights to fair use.
· That the prohibition of circumvention of DRM systems will leave the user without any means (technical or legal) to challenge the rules constituted by the DRM systems
· That the prohibition of technical devices and knowledge on how to circumvent DRM systems will hinder competition and IT development and endanger research in IT security
· That the prohibition of technical means to circumvent DRM systems will further monopolise the software market since software that allow file formats to be viewed on other systems (such as Linux) could become illegal
· That DRM systems can never be fully effective and therefore will create problems for users and for IT development without stopping piracy.
As one example of the negative effect of the new legislation, IDFR used the problem of playing DVDs on Linux explaining how the necessary software to convert and play DVDs on Linux will also allow for the DVD to be copied and could therefore be considered illegal according to the new law.
The fundamental view of IDFR was that DRM systems are not the right solution to stop piracy. Instead IDFR proposed to stop piracy using existing regulation by prosecuting users that use file sharing networks to distribute protected works. As a consequence IDFR proposed to use the opportunity in the Directive to include private copying as one of the exceptions where users are granted the right to demand from rightsholders the means (by handing out keys etc) for the user to exercise his right.
Apart from IDFR, the main public service broadcasting company in Denmark, DR (Danmarks Radio, "The Danish BBC") expressed strong concerns about the new provisions to prohibit circumvention of DRM systems.
In general DR found that the provisions on technical measurements shifts the balance between rightsholders and users giving too much power to rightsholders and that provisions of this character ultimately do not belong in the legislation on intellectual property rights.
DR expressed fears that rightsholders will use DRM systems to gain control over the legal use of works in DR:
· gaining influence on editorial decisions, deciding which records to play on which channels etc.
· creating a monopoly on technical platforms for playing works
· preventing new technical platforms for broadcasting from being developed
DR pointed out that the prohibition of devices to circumvent DRM systems could prevent DR from exercising its rights according to exception 5-2-d to use works in connection with broadcast, by preventing DR from possessing the necessary means to circumvent systems used by rightsholders to control the activities of DR.
Also DR pointed out that the procedure set up by the law to allow DR to make use of the exception (in case a DRM system prevents this) is too inflexible and time consuming:
· requiring DR to take each case to the Board of Intellectual Property Rights
· providing the board with no sanctions if rightsholders do not comply with the instructions
· requiring DR to wait four weeks before they can legally circumvent a DRM system if the rightsholders refuse to comply with the instructions of the board
These requirements are not compatible with day-to-day operations in a modern broadcasting company.
In order to solve these problems DR proposed to limit the implementation of Article 6 of the Directive such that the prohibition of circumvention of DRM systems would only apply in situations which are not covered by one of the exceptions in section 2.
As an alternative DR proposed to set up a more flexible system of dealing with conflicts between the exceptions of section 2 and the provisions of Article 6.
At the outset most parties in Parliament were supportive of the new legislation based on the general sentiment that something had to be done to stop piracy and a general lack of awareness among Members of Parliament of the problems caused by widespread use of DRM systems.
Through an effective lobbying campaign IDFR succeeded in changing that. When the proposal was transferred to the Committee of Culture after the first discussion in Parliament, a number of parties were already genuinely concerned by the objections raised by IDFR. Also the MPs in the Committee of Culture had started to realise that they were dealing with a new and complex issue and that they didn't know enough about it.
As a consequence the Committee of Culture dedicated a lot of time and energy to the discussion of the new law:
· inviting experts (among others IDFR and DR) to give testimony at their meetings
· conducting an expert hearing in Parliament with selected legal and technical experts (IDFR, legal professors...)
· asking the Minister of Culture to clarify and explain a number of points based on the objections raised by IDFR and other experts
The most concrete outcome of this was that the Committee of Culture agreed to include a revision clause in the law such that the sections on effective technical measures (75c) and rights management information (75e) should be revised based on the experiences in Denmark and the EU with the use of DRM systems, no later than the parliamentary year 2005/2006.
Furthermore the process clearly had the effect that MPs got a better understanding of the problems caused by DRM systems and must be expected to have greater awareness of the problems when DRM systems gain more widespread use.
On the other hand the discussions in the Committee of Culture did not change the fundamental sections of the new law which was passed unaltered. In spite of the expressed concerns and uncertainties the parties in government (Liberals and Conservatives) supported the proposal all the way, as did the largest opposition party (the Social Democrats).
The smaller opposition parties on the left clearly had genuine concerns regarding the prohibition of circumventing DRM systems especially regarding the possible effect on Open Source development which they support strongly. On the other hand the same parties have a strong commitment to support artists and seemed to have difficulties in finding the right middle way. Towards the end of the negotiations they tried to postpone the adoption of the law in order to allow for more time to consider these complex issues (which was rejected because of the EUCD deadline for implementation on December 22, 2002.)
The strongest opposition against the new law came from "Dansk Folkeparti" a party on the extreme right that normally supports the government. The party put forward a number of proposals to change the law in order to limit the damaging effect of DRM systems but didn't succeed in getting them through.
Opposition of the proposal was made more difficult by the Minister of Culture whose strategy towards the objections of IDFR for a great part was to deny that the problems existed and to refer to them as "technical details" that will always exist when you are putting forward new legislation on technical issues.
The debate on the damaging effect of DRM systems on the freedom of users to access works they have legally acquired ended up concentrating around the issue of accessing works on alternative platforms.
As described above, IDFR argued that the prohibition of technical means to circumvent DRM systems could prevent users from accessing legally acquired works, because access on other platforms such as Linux would require the use of software to convert file formats, bypass country codes etc. software that would also facilitate copying of the work and that therefore could be considered illegal.
This concern was raised in the Committee of Culture where a member asked the Minister of Culture to clarify the issue.
In his response the Minister maintained that:
· circumventing DRM systems is only illegal when done with the intent to copy the work circumventing DRM systems with the intent to use (view, listen to...) the work is legal
· although software designed to convert file formats and in other ways make it possible to use the work on another platform could also be used to copy the work it would not be illegal, because the primary purpose of the software would not be to facilitate copying of the work
· it will be the rights owners responsibility to design DRM systems in such a way that copy-protection and use-protection is separated that is: that one system is used to control how the users use the work (such as the DVD region code) and another system is used to prevent copying.
In their comment to the response by the Minister IDFR tried to explain that
· the process of converting file formats, using (playing) a work and copying a work in digital form cannot be separated since they are essentially the same
· it will be impossible to prove that a software component (such as libcss) is designed with the primary purpose of converting file formats or of playing a file when it in essence will be identical to a software component designed with the purpose of copying files
· it is not technically realistic to separate DRM systems in the way the Minister imagines.
In response the Minister essentially repeated his initial arguments and dismissed the points raised by IDFR as "technical details".
As described above, section 75d allows users that are covered by one of the exceptions in section 2 to take their case to the Board for Intellectual Property Rights if the ability to exercise their right is prevented by a DRM system and it is not possible to reach an agreement with the rights owner on how to get access to the work.
This does not apply for the exception that allows for private copying since the Ministry of Culture found that it would undermine the development and use of DRM systems if right owners can be instructed to hand out decryption tools to every private user who wishes to make a personal copy.
At the expert hearing this point was contested by the professor of law Mads Bryde Andersen (University of Copenhagen, Former chairman of the Danish IT security Council) who proposed that the right to private copying was included under the system established by section 75d.
The Ministry of Culture was asked by the Committee of Culture to comment on this but essentially repeated the arguments put forward in the explanatory text of the law: that this would undermine the development of DRM systems.
In their comments on the law IDFR pointed out that research in IT security to a great extend is based on continuing efforts to circumvent security systems. The prohibition of circumvention of DRM systems and possession of software designed to circumvent these systems can therefore hinder research in IT security and lead to a situation where known security problems are not published and only criminals have knowledge of security breaches in the systems.
In his response to this comment the Minister of Culture referred to section 75c-6 in the law that states that the law does not impede research in cryptography.
In response to this IDFR pointed out that neither the law nor the Directive defines "research in cryptography" and that this can lead to uncertainty and doubts that in practice will hinder research in IT security.
In the last parts of the negotiations the MP from Dansk Folkeparti of the Committee of Culture tried to broaden the scope of the section on cryptography (to include education in cryptography and IT security in general). The proposal did not go through.
In response to the concerns expressed by DR the Committee of Culture agreed that it is not the intent of the law to give rightsholders the power to control the legal use of works in DR or other broadcasting organisations.
This was included as a note in the report from the committee but did not give rise to any changes in the law.
The proposal by DR to change the implementation of Article 6 was not considered.
Although the Committee of Culture devoted a lot of time and energy to the discussions of the proposal the law ended up passing more or less unaltered.
The only substantial change in the law was the inclusion of a revision clause (as described above) which requires that the sections on effective technical measures and rights management information should be revised at the latest in 2005/2006.