US experience shows overly powerful copy protection regime can be as damaging as one that is too weak, writes Danny O'Brien

The clock is ticking for the incorporation of another European Directive into national law. And for once, Ireland's legislators will get an easy ride of it.

The European Copyright Directive will drag Europe's scattered and antiquated copyright laws into a 21st century world of perfect digital copies and fiendish Internet pirates.

While it was adopted by the EU on the April 9th, 2001, as usual member nations are now scrabbling to embody its provisions before the Christmas deadline.

Countries like Germany and the UK are brooding over sizeable chunks of revisions and patches to their existing law, but Ireland has already done its homework. Fortunately, the nation survived the painful process of updating its own copyright legislation to cope with new technology just two years ago, with the Copyright and Related Rights Act 2000, and that statute should get by with a light re-edit.

Of course, the Dáil needed a little prodding to be so forward-looking. It was the United State's threat to report Ireland to the World Trade Organisation for the antiquated nature of its copyright laws, that encouraged them to be one of the first legislatures with a truly modern copyright law on the books.

The irony is that just as Europe adopts the measures that the US encouraged Ireland to adopt, the Americans themselves are beginning to have second thoughts about this new wave of copy protection legislation.

Very small second thoughts, and currently confined to the conference rooms of Silicon Valley and the discussion forums of the Internet. But the clamour is growing.

The heart of the trouble is the Digital Millennium Copyright Act - America's fancier-titled equivalent to the Irish 2000 copyright law. Neither was modelled on the other, but they both share (with the new European legislation) a common aim: to strengthen copyright to cope with the Internet era, when perfect digital copies of music, text and video, can be made and endlessly redistributed by almost anyone.

To that end, both America and Ireland took the same line. As it's so easy to make copies of copyrighted material with modern computers, technological anti-copying measures had to be beefed up with strong legal sanctions.

The DMCA, the CARRA, and the new EUCD law all specify a new infringement. Breaking the copy protection on a product is now as illegal as actively copying the product itself. And, under all these new laws, it is a crime to trade in, or even talk about how to build circumvention devices.

Unfortunately, the new copy protections schemes, protected themselves by so strong law, appear to be running rife. It's still early days, but the American experience is showing that an overly powerful copy protection regime can run as roughshod over rights as one that is too weak.

And, as a user of copyrighted material, you have a matching set of rights to those of the copyright owner.

These let you make limited copies of your hard-earned movies, records, books, or TV recordings for various legitimate uses. In the US, these rights are called "fair use", in Ireland, it's "fair dealing".

Fair dealing means you have the right to "time shift" - save broadcasts to enjoy later. Without that, you couldn't videotape TV shows without breaking the law. And you have the right to quote, or make copies for your private convenience. In the 21st century, there are, many would suggest, new fair dealing rights.

The Website DigitalConsumer.org lists them: you should have the right to "space shift" - transfer your CD to listen to on your MP3 music player or laptop; You should be able to make backup copies of your purchases, so a scratched DVD doesn't mean a fistful of euros down the drain. And you should be able to convert your media to more convenient formats when the original format grows unwieldy, or circumstances change.

So you should be allowed to copy your vinyl collection onto CDs, or get your computer to read out novels if your eyesight begins to fail.

What binds the DMCA, CORRA and the Copyright Directive is this: while there are plenty of punishments for consumers who dare to break the locks on their possessions, there are very few legal controls to prevent publishers from walking all over fair dealing rights with the same locks.

Under CORRA-style laws, breaking copy protection to assert your existing fair dealing rights is illegal, let alone the new rights that modern technology suggests. And, as American websites and academics have discovered, even explaining to people how to make fair use copies is a criminal offence under the DMCA.

To date, in the US, rather than promoting new technologies, the DMCA has been used by companies to intimidate academics who exposed flaws in their software. Security experts refuse to visit the US, out of fear of being arrested for their work.

Magazines have been successfully prevented from providing software that would let Linux users play DVDs.

Companies have produced clumsy copy-protection systems that do nothing to prevent large-scale piracy, but prevent customers from playing CDs on their PCs, crash Macs completely, and yet are so shoddily designed they can be circumvented with a liberal application of a marker pen (although I could not possibly tell you how, for fear of putting The Irish Times into legal hot water).

It's too late to fix the DMCA, and their seems little chance of having it repealed (although some constitutional challenges are mooted). CORRA is firmly in place, and will soon be joined by equally strict rules across Europe. But perhaps it's time that Ireland, one of the first testing grounds for the new millennium of copyright took the next step, and introduced a law positively enforcing customers' right to fair dealing.

It would be good for Ireland to take the lead again - and let others be the copycats.