Monday, 30. June 2003

DRM circumvention research and the German constitution.

This spring Germany got legislation to transform the 2001 European copyright directive into German law.

The new law has a DCMA-like anti-circumvention clause: § 95a of the new German UrhG prohibits circumvention of technical protection measures and the production, import, distribution, sale, rental and advertisement of circumvention devices or services.

But the German legal structure will provide notable exceptions to this: Article 5 III of the German constitution reads: "Art and science, research and teaching are free. The freedom of teaching does not release from allegiance to the constitution." This constitutional rights can only be constrained by other constitutional rights, which means practically that the § 95a UrhG can't narrow scientist's rights to do research on technical protection measures for content. The administration acknowledged this fact by stating in their reasoning for the law: "Acts of circumvention committed solely for scientific purposes (e.g. cryptography) will not be prohibited."

This will create a new battlefield at the courts about the question if certain actions constitute "scientific research" or are just acts of commercial product development. Thes will be a problem because a huge part of crypto research is not done in academic settings but by amateurs or in industry. Perhaps german researchers on DRM should create a working group with strong academic ties and publish their research through this working group documenting the scientiffic focus of their work.

May be germany will actually become a crypto-heaven by one day beeing the only (?) WIPO state which by law allows research in DRM systems.
10:38 | #

disLEXia, a research project by Maximillian Dornseif