|
|
|
|
|
|
A Hard Nut to Crack:
The Protection of Technological Measures (Draft)
The final version has been published in European
Intellectual Property Review 2000, p.
272-288
Kamiel
J. Koelman
|
| |
|
The end of copyright -
as we know it - has often been proclaimed. Some have
asserted that the world-wide copying machine called ‘Internet’
would make the effective exploitation of copyrighted
works infeasible. Others stated that ‘the answer to
the machine is in the machine’, meaning that the
control rights holders may lose due to the relative ease
of digital copying and online distribution could be
regained by applying anti-copying and other
technologies.[1]
Copyright owners could exercise factual control
over what users can and cannot do with their works, as
opposed to the mere right to control that
copyright law provides for. A third group of
commentators fears that the ability to technologically
block uses that are currently permitted under copyright
law will, in its own way, bring about the end of
copyright, as it would undermine the information policy
expressed in copyright.[2]
Legislators all over the world have determined that the
answer of the machine is not enough, but needs to be
backed by statutory protection. This article
investigates in what ways the legal protection of
technological measures that protect copyrighted works
may alter the rights holders‘ and the users’
relative positions. Does the balance shift to the one or
the other side? The emphasis will be on the protection
provided by the upcoming EU Copyright Directive, but
whenever relevant the US Digital Millenium Copyright Act
of 1998 will also be discussed. Finally, the proposed
Copyright Directive will be compared with the
Conditional Access Directive.
WIPO Copyright
Treaty
Both the regulations in
the Copyright Directive and Digital Millennium Copyright
Act (DMCA) are formally based on article 11 of the WIPO
Copyright Treaty of 1996 (WCT).[3]
It appears that the Treaty did not intend to affect the
positions of the actors involved. The provision on
technological measures obliges the Contracting Parties
to:
"...provide
adequate legal protection and effective legal remedies
against the circumvention of effective technological
measures that are used by authors in connection with
the exercise of their rights under this Treaty or the
Berne Convention and that restrict acts, in respect of
their works, which are not authorized by the authors
concerned or permitted by law."
Here the scope of the
protection of technological measures seems to coincide
with the scope of copyright. Only against circumvention
of a technological measure which restricts an act not
permitted by the law must protection be provided. Thus,
no legal remedies need be available when circumvention
enables an act allowed on the basis of the limitations
of copyright law.[4]
Article 11 WCT is the first provision protecting
technological measures in the domain of copyright law
which is aimed at the act of circumvention itself.
Article 7(1)(c) of the Software Directive[5]
, for instance, only aims at the trade in devices that
enable circumvention.[6]
Thus, using such devices to circumvent a protective
measure is not made unlawful. Like the Software
Directive, the first proposal for the WCT aimed at
activities enabling circumvention.[7]
However, as a result of effective lobbying of producers
of consumer electronics (e.g. PCs), who feared that a
provision prohibiting devices which may enable
circumvention could be applicable to their products,
article 11 WCT speaks of the act of circumvention and
not of the dealing in or manufacturing of devices that
enable circumvention.[8]
Copyright Directive
The European Commission
appeared not to be very pleased with this outcome. Not
only did article 6 of the first Commission Proposal -
which was not very clear in this respect[9]
- seem to apply only to the so-called preparatory
activities to circumvention, such as the production and
distribution of circumvention enabling devices, but the
Explanatory Memorandum to that Proposal also stated that
the ‘real danger’ for rights holders is not to be
found in the single act of circumvention by individuals,
but rather in the preparatory activities carried out by
companies.[10]
At the suggestion of the European Parliament[11]
, the amended Copyright Directive clearly aims at both
the act of circumvention and the preparatory activities
to circumvention.[12]
Whether the WCT actually requires to target the act of
circumventing a technological measure is debatable.
Perhaps ‘adequate legal protection’ against
circumvention for the purpose of article 11 WCT can be
provided by aiming at the production and distribution of
circumvention enabling devices. If not, the US violates
the WCT, as it only prohibits preparatory activities to
the circumvention of a measure that ‘protects a right
of the copyright owner’, but not the act of tampering
with such a technological measure.[13]
A similar approach is proposed by the Australian
legislature.[14]
Circumvention
If a rights holder
could object to circumvention in cases where a claim
based upon copyright law would not succeed, the
effective ‘reach’ of copyright holders would expand.
Clearly, this would alter the positions of rights
holders and users of copyrighted material.[15]
The proposed Copyright Directive is rather ambiguous as
to the relation between the extent to which
technological measures must be protected and the scope
of copyright. From the Explanatory Memorandum to the
first Proposal, it can perhaps be concluded that it
intended not to expand the rights holders’ sphere of
control by the protection of technological measures.[16]
Article 6(1) of the Amended Proposal states:
"Member States
shall provide adequate legal protection against the
circumvention without authority of any effective
technological measures designed to protect any
copyright or any rights related to copyright as
provided by law or the sui generis right provided for
in Chapter III of European Parliament and Council
Directive 96/9/EC, which the person concerned carries
out in the knowledge, or with reasonable grounds to
know that he or she pursues that objective."
Measures that are ‘designed’
to protect a copyright must be protected. This could
imply that protection is required as long as the
technology was initially designed to prevent an activity
which can be prohibited on the basis of copyright law,
regardless of whether it, under the circumstances,
actually protects a copyright. If this interpretation is
correct, circumvention must, for instance, also be made
unlawful if a measure which was initially designed to
inhibit copyright infringements protects public domain
material.
However, as adequate
legal protection is required only against circumvention
‘without authority’, the Directive may nevertheless
leave Member States with sufficient discretion to adjust
the scope of protection of technological measures to the
copyright limitations. It can be understood from the
Explanatory Memorandum that the additional requirement
is meant to express that there may be cases where an
exemption ‘authorizes’ circumvention.[17]
However, as it stands, the copyright exemptions permit
the reproduction of a work or the making available of a
work to the public under certain circumstances, but they
do not - directly - ‘authorize’ certain acts of
circumvention. Consequently, although it may have been
the intention, the wording of the provision does not
provide for a clear link between the scope of the
protection technological measures and the scope of
copyright. It is likely that by inserting this element
the Commission drew upon article 11 WCT, which does not
require to prohibit circumvention if the acts that the
measure restricts are ‘permitted by law’. Thus,
under the WCT it is not the act of circumvention, as it
is in the proposed Directive, but the subsequent acts
which may be ‘authorized’ by law. Consequently, in
the wording of the Treaty, the limitations of copyright
do affect the extent to which technological protection
schemes have to be protected.
From the apparent
assumption that the copyright limitations can ‘authorize’
certain acts of circumvention, one could perhaps
conclude that the drafters of the Proposal view the act
of circumvention to constitute a copyright infringement.
Clearly, however, article 6 does not oblige Member
States to insert an exclusive ‘right of circumvention’
in their national copyright laws. If there is no such
right, circumvention is not, as such, a copyright
infringing act. The misconception is also apparent in
Recital 30 of the Amended Proposal, which states that
‘there is a need to provide for harmonized legal
protection against any activity enabling or facilitating
the circumvention without authority, whether granted by
the rights holders or conferred by law, of such
measures.’[18]
This sentence could even be read to imply that the law
(the copyright limitations?) may ‘authorize’ certain
preparatory activities to circumvention.
Only with regard to
private copying exemptions the Commission’s position
seems clear. Article 5(2)(b)(bis) of the Amended
Proposal implies that exemptions allowing private
copying may be abolished if technological measures
enable copyright owners to control such copying. Recital
27 adds that these ‘exceptions should not inhibit the
use of technological measures or their enforcement
against circumvention.’ Apparently, at least the
private copying exemptions in national copyright laws
may not affect the protection of technological measures.[19]
The European Parliament even proposed to insert a
sentence in article 5(4) of the Directive stating that
none of the copyright exemptions enumerated in article 5
would block the protection of technological measures.[20]
The Commission, however, decided not to incorporate the
Parliament’s amendment in its Amended Proposal.
Perhaps, from this refusal, one could conclude that the
Commission intends all copyright exemptions, apart from
those concerning private copying, to affect the
protection of technological measures.
Preparatory
Activities
Even if circumvention
were not prohibited in cases where it serves an act
permitted under copyright law, too broad a prohibition
on preparatory activities would render a permission to
circumvent meaningless. Most people will not have the
technical abilities to circumvent a technological
measure. They will be dependent on the availability of
devices or services which enable to exercise the ‘right’
to circumvent. If such devices are not available, a
permission to circumvent would be meaningless, as would
the copyright limitations in respect of information
products that are published (only) in a technologically
protected format.
It is hard to see how
to reconcile a ban on the manufacturing and distribution
of circumvention devices with the limitations of
copyright. Many systems will probably be used to protect
‘works’ as well as public domain material. Moreover,
whether a copyright exemption applies often depends upon
the circumstances. Therefore, circumventing the same
measure, which protects the same material, may be lawful
in one situation and prohibited in another. As a
consequence, most circumvention enabling devices will
probably have some lawful use or another. If these
devices were not available, uses permitted under
copyright law would not be possible. If, on the other
hand, a device is not prohibited whenever it may have
some legal use, not many circumvention devices would
actually be targeted.[21]
A prohibition on preparatory activities would then not
have a large impact in practice.
Article 6(2) of the
Amended Directive concerns circumvention enabling
devices and services:
"Member States
shall provide adequate legal protection against any
activities, including the manufacture or distribution
of devices, products or components or the provision of
services, carried out without authority, which:
a) are promoted,
advertised or marketed for the purpose of
circumvention, or
b) have only a limited commercially significant
purpose or use other than to circumvent, or
c) are primarily designed, produced, adapted or
performed for the purpose of enabling or
facilitating the circumvention of, any effective
technological measures designed to protect any
copyright or any right related to copyright as
provided by law or the sui generis right provided
for in Chapter III of European Parliament and
Council Directive 96/9/EC."
Apparently, the
Commission did not make up its mind yet as to whether
the copyright limitations or the effective protection of
technological measures should prevail. On the one hand,
it presumes that preparatory activities may be ‘carried
out with authority’, which, as discussed above, may
perhaps be intended to indicate that these activities
can be allowed on the basis of the limitations of
copyright. On the other hand, the provision does not
state clearly that preparatory activities are
permissible if they are primarily produced, marketed or
designed for the purpose of lawful circumvention.
Instead, the dealing in devices is covered, the purpose
of which is to enable circumvention in general.
The Australian
legislature came up with a possible solution to
reconcile a prohibition on devices with the limitations
of copyright. The Australian ‘Copyright Amendment
(Digital Agenda) Bill of 1999’, targets only the
preparatory activities to circumvention.[22]
The proposed new article 116A of the Australian
Copyright Act grants the copyright owner or a licensee a
legal remedy against a person who provides circumvention
devices or services. However, the provider may escape
liability if the person he delivered the device to signs
a declaration stating that it will be used only for a
‘permitted purpose’. The purpose is permitted if the
device is used for doing an act that is not a copyright
infringement.
Access Control
The US legislature
determined that, apart from measures that ‘protect a
right of the copyright owner’, measures ‘which
control access’ should also be protected. As it was
acknowledged that copyright does not grant an explicit
‘right of access’, and therefore access controlling
measures are not protected by a provision which protects
systems that protect ‘a right of the copyright owner’,
a separate provision was inserted which prohibits the
circumvention of a technological measure that controls
access to a work and the preparatory activities to such
circumvention.[23]
At the request of different lobby groups, several
specific limitations to this prohibition were added.[24]
Access control has
never been explicitly discussed in relation to the
Copyright Directive. Nevertheless, the Commission
apparently feels it is necessary to protect
technological measures which control access. Under the
Directive only ‘effective’ measures are to be
protected. The first Proposal stated that technological
measures would ‘only be deemed effective where the
work or other subject matter is rendered accessible to
the user only through application of an access code or
process [...] with the authority of the rightholders’.
Thus, only measures which control access would have been
covered. If, at the same time only technological
measures were protected which prevent an act that can be
prohibited on the basis of copyright law, the result
would be that not many measures would be protected.
Systems that merely restrict copying would not be
covered because they do not, strictly speaking, control
unauthorized access to a work, and measures which
control access would not be aimed at, as to gain access
is not explicitly a restricted act under copyright law.
To make a work accessible to the public is traditionally
covered by copyright, to individually access it is not.
One could perhaps argue that a ‘right of access’ has
been introduced into copyright law through the right to
prohibit temporary reproductions granted in the Software
and Database Directives. Under these Directives any ‘unlawful
user’ who accesses a database or a computer program
may be held liable for copyright infringement, since to
access a digitized database or a software product it
must - at the current state of technology - be
temporarily reproduced in the computer’s random access
memory.[25]
However, under the Amended Proposal for the Copyright
Directive, the same reasoning will not necessarily apply
with respect to other types of works, since article 5(1)
of the amended Copyright Directive intends to exempt
reproductions which are necessary to use or gain access
to these types of works.
The Amended Proposal
states with regard to ‘effectiveness’:
"Technological
measures shall be deemed "effective" where
the access to or use of a protected work or other
subject matter is controlled through application of an
access code or any other type of protection process
which achieves the protection objective in an
operational and reliable manner with the authority of
the rightholders. Such measures may include
decryption, descrambling or other transformation of
the work or other subject matter."
Now, any type of
protection process is deemed ‘effective’, as long as
it ‘achieves its protection objective in an
operational and reliable manner’. But access control
is still part of the definition of ‘effectiveness’.[26]
If the intention is not to broaden the scope of
copyright, or the ‘reach’ of the copyright holder,
it would be enough if the description of ‘effective’
measures only concerns the use of a work relevant under
copyright law.[27]
If a rights holder
could bring a (civil) action in court against any person
who obtains access without authorization, it could be
said that an additional exclusive-right-like ‘right to
control access to technologically protected works’
were granted. Indeed, the provision in the US Copyright
Act which prohibits to circumvent a technological
measure which controls access, in effect, grants such a
right.[28]
Surprisingly, considering for instance the controversy
with respect to the introduction of an all encompassing
right of temporary reproduction during the negotiations
which lead to the WCT in 1996, it appears the US
legislature never discussed the necessity or
desirability of such an additional right. If it is
indeed self-evident that it is needed, one may ask why a
‘right of access’ as such was not introduced,
independent of whether or not a technological measure
prevents the access. Of course, a similar question
arises with regard to the European Software and Database
Directives: why was a ‘right of access’ granted ‘in
the disguise’ of the right of temporary reproduction?
Perhaps one of the main reasons is that to clearly grant
an action against non-commercial individual access to,
or ‘consumption’ of a work, would seem to constitute
a revolution in copyright law, which traditionally
covers acts related to commercial exploitation performed
by potential competitors rather than acts carried out by
individual end-users.
Nevertheless, the trend
seems to be for copyright to slowly move in the
direction of granting an exclusive ‘right of access’.[29]
Some commentators stress that a ‘right of access’ is
necessary in the digital networked environment. Smith,
for instance, finds that controlling access is
important, because access control may prevent many
infringements from taking place and because it is easier
to control copying by authorized, known users.[30]
Olswang goes somewhat further. He envisions a
far-reaching ‘Accessright’ which would reinforce
existing contractual structures by a proprietary right
and would beat the, in the digital environment, ‘wholly
unbearable’ practice of home piracy. A violation of
the right should lead to a strict liability, or at least
a reversal of the onus of proof, and would result in the
actual use being paid for, not the acquiring of a copy.[31]
Smith and Olswang
consider different types of access control to
copyrighted works. At least three different forms of
access control can be distinguished. The first, which
Smith aims at, is the initial access to a copy or a
performance, controlled at the (online) outlet, e.g. a
web site which requires a password. This could be
compared to the access control a bookshop or movie
theatre applies. A difference is of course that the
latter actors mostly do not know the identities of their
customers, whereas many web site operators require the
submission of personal data before access is granted.
Obviously, this raises data protection issues; is it
desirable that data on what information a person has
accessed be processed and available? A second species of
access control has a similar function, but contrary to
the above mentioned type, it is exercised in the private
sphere of the user, e.g. through pay-TV decoders. The
third type of access control, which Olswang speaks
about, does not only concern initial access, but each
act of access or consultation even of a purchased or
downloaded copy. It is not entirely clear which form of
access control the US legislature had in mind when it
drafted the DMCA.[32]
The latter form of
control enables new modes of exploitation. It is
expected that in the digital era information will be
consumed on a pay-per-use basis, rather then a
pay-per-copy basis. Consumers will purchase a copy that
will disintegrate after a certain period or when it has
been played a fixed number of times. Pay-TV already
applies an accounting scheme based on individual initial
access, but until now it did not prevent consumers from
copying the program and reviewing or sharing the copy.
New technologies facilitate to bill for such subsequent
uses.[33]
Advocates of these new business models proclaim that an
advantage is that the rights holder will be able to reap
the full value of any use of his work, which in their
view is the main purpose of copyright. At the same time
consumers will pay only for the value they actually
extract from a work. For instance, if they play a
musical work three times, they will be billed just for
those three times, instead of buying a (copy of a) work
at a price which is presumably predicated on unlimited
access.[34]
Clearly, to enforce a
law targeting the circumvention of measures that enable
access control of the latter two types mentioned above,
i.e. control through measures like pay-TV decoders and
control of each consultation of an acquired copy, would
involve entering into the private sphere of the user. A
violation could only be detected by policing private
behavior. (A similar problem arises where the right to
control private copying of technologically protected
works is concerned, as it is envisioned in the Copyright
Directive.) In the physical world, such policing is of
course impossible.[35]
In the virtual world this may not be the case. Perhaps
in a future where everybody is constantly online,
metering technologies will enable to monitor every act
done with a work.[36]
In this context, the question may be asked whether such
electronic surveillance that reveals which information
is accessed by whom is desirable in a democratic
society, even if it is not performed by governmental
bodies but by private entities.[37]
Conditional Access
Directive
Even if the Copyright
Directive does not protect technological measures which
control access, certain measures that control access are
protected by another, already enacted EU Directive.[38]
The Conditional Access Directive (CAD) obliges EU Member
States to target the commercial dealing in devices which
enable the unauthorized access to services provided on
the basis of conditional access - e.g. pay-TV, but
Internet services which set conditions to access are
also covered. A difference with the Copyright Directive
is that the CAD protects measures that control access to
a service, and not systems that control access to
a work. That is, if the Copyright Directive will
indeed protect access controlling measures. But, as many
services will consist of the provision of copyrighted
works, accessing the service and the work will often
come down to the same thing. The CAD distinguishes
itself from the DMCA as it clearly involves just initial
access (to a service), whereas the US Act may perhaps be
understood to cover each consultation of a work. Another
difference with the Copyright Directive is that the CAD
obliges Member States to only target the commercial
dealing in devices that enable unauthorized
circumvention, while the Copyright Directive also aims
at the mere act of circumvention.[39]
The decision to leave private non-commercial activities
outside of the ambit of the CAD is partly based upon a
Recommendation of the Council of Europe on the Legal
Protection of Encrypted Television Services, which
considered that the enforcement of provisions aimed at
private behavior would conflict with the right to
privacy and would, moreover, be impossible in practice
anyway.[40]
The question then arises why the proposed Copyright
Directive does seek to target the act of circumvention.
Is user privacy less likely to be violated while
enforcing a provision aiming at the circumvention of
technological measures which protect a copyright?
Although the CAD aims
to protect services rather than works, and although mere
copyright owners are not granted an action in court[41]
, copyright owners who deal directly with their
customers will probably qualify as (information) service
providers for the purpose of the CAD; for instance, if
they require a password to gain access to the web site
from which their works are distributed over the
Internet. The CAD requires that certain civil remedies
be open to services providers.[42]
Whether the Copyright Directive obliges to insert civil
remedies for the benefit of rights holders when an
implementation of article 6 is violated is uncertain.
Article 8(2) of the Amended Proposal may require to
implement certain civil remedies open to ‘rightholders
whose interests are affected by an infringing activity’,
but if it is assumed that neither circumvention nor the
performance of preparatory activities to circumvention
should be viewed as (copy-) right infringing acts,
awarding rights holders the right to sue for the damages
and to apply for injunctions and seizure will not be
necessary.[43]
Member States could then implement article 6 in, for
instance, criminal law, leaving the decision to
prosecute to the public authorities.
Since the DMCA
implemented the protection of technological measures
which control access in copyright law, it was not too
big a step for the US legislature to limit the ‘right
of access to technologically protected works’.[44]
After all, copyright traditionally contains several
limitations to the control over the use of a work that a
rights holder can statutorily exercise. According to
standing case law of the US Supreme Court, these are
included to off-set the disadvantages of an overbroad
monopoly on the use of information.[45]
Should the Copyright Directive, if it will grant a
similar ‘right of access’, limit that right along
the lines of the DMCA? The idea of limiting access
control to (information) services is less well rooted in
legal tradition. Nevertheless, the European regulator
apparently is aware of the drawbacks that such access
control may have on the public availability of
information. Recital 9 with the CAD states that it is
‘without prejudice to possible future Community or
national provisions meant to ensure that a number of
broadcasting services, recognised as being of public
interest, are not based on conditional access’. One of
the provisions the Directive refers to is the Television
without Frontiers Directive, as recently amended. The
latter Directive allows Member States to draw up lists
of ‘events’ to which public access may not be
prevented by ‘capturing’ the event exclusively for
pay-TV.[46]
Thus, the CAD and the Directive Television without
Frontiers leave Member States the discretion even to
prohibit to technologically block access to certain
(information) services. Interestingly, the Dutch
Minister of Justice has recently stated that a similar
approach may be necessary where technological measures
that protect copyrights are concerned.[47]
Concluding Remarks
The Amended Proposal
for the Copyright Directive leaves many questions
unanswered. Does the European Commission intend the
limitations of copyright to affect the scope of the
protection of technological measures? Is circumvention
allowed when it serves a copyright limitation? Are all
circumvention enabling devices and services targeted,
even if they may have a legitimate purpose? What is the
relation between copyright and access control? Should
circumvention be viewed to constitute a copyright
infringement?
Originally, it was felt
that technological measures needed protection because
copyrights could so easily be violated in the digital
networked environment.[48]
However, instead of merely boosting copyright
protection, by protecting measures that make it harder
(or impossible) to infringe a copyright, the US as well
as the proposed EU protection may be viewed as expanding
the rights holder’s reach by statutorily backing new
modes of exploitation.[49]
The US legislature has, in effect, created a novel ‘right
of access to technologically protected works’. The EU
Copyright Directive’s prohibition to have the private
copying exemptions affect the protection of
technological measures may result in a right to control
private copying of technologically protected works.
Clearly, both new ‘rights’ are predicated on the
emerging possibility to control the acts concerned.
These forms of control may, in the near future, be
technologically feasible, whether they are socially
desirable is another issue. It is likely that
technological measures and their protection will mainly
affect non-commercial private users. Probably,
commercially operating pirates will not be severely
hindered by technological measures nor by their
protection and continue their activities regardless of
whether, for example, DVDs are technologically
protected.[50]
Their activities, however, are actionable under ‘traditional’
copyright. If the DMCA must be understood to concern
measures that control each act of consultation of an
acquired copy, enforcement of the right will necessarily
involve an invasion of user privacy; a violation can
only be detected by monitoring private behaviour. If the
temporary copy is indeed to be exempted in the Copyright
Directive, as article 5(1) of the Amended Proposal
envisages, and circumvention is to be regarded unlawful
only when it serves a copyright infringement, then the
protection provided by the EU Copyright Directive may
not apply to each act of consultation.[51]
Nevertheless, the Directive suffers from a similar
enforcement problem as does the US Act, since the
detection of circumvention which enables private copying
requires entering into the private sphere as well.
The European Copyright
Directive may in the end cover only circumvention for
the purpose of infringements.[52]
Of course, copyright owners would not gain much if
circumvention were unlawful only when a copyright
infringement follows. In those circumstances the
copyright owner could hold the person circumventing
accountable on the basis of ‘traditional’ copyright.
An extra action would then be redundant. Exactly for
this reason the US legislature elected not to prohibit
the circumvention of a measure which protects a
copyright.[53]
An advantage of targeting circumvention rather than
preparatory activities is that such a provision is much
easier to reconcile with the limitations of copyright; a
judge will simply determine whether the act of
circumvention in the case concerned served to infringe a
copyright or not. Copyright holders would probably
benefit more if preparatory activities were targeted.
However, to design a norm which effectively hampers the
availability of devices or services that enable
circumvention for copyright infringing purposes and at
the same time respects the existing limitations of
copyright will not be an easy task. Perhaps, the
Australian approach provides a solution.
Another option would be
to adapt the copyright limitations to the capabilities
of technology. They key question is then whether the
mere availability of new technologies which enable
further control and new ways of exploitation, and which
cannot accommodate all existing copyright exemptions,
justifies to statutorily expand the ‘reach’ of the
copyright holder. Or should the direction technology
takes be determined by the law? Reidenberg has
demonstrated that, just as the law determines what can
and cannot be done, technology imposes limitations on
those who use it. He proposes to let the Lex
Informatica, i.e. the rules that follow from
technology, develop freely. These ‘rules’ would have
the advantages of flexibility, independence of national
borders and self-enforcement. Copyright holders would no
longer need to sue for infringements, but could enforce
their rights themselves and automatically. Moreover,
they would not be bothered by the difficult issues of
international private law. Should the legislature get
involved in this ‘technological rulemaking’?
According to Reidenberg, in situations where fundamental
public interests are at stake there is a reason to
interfere and steer the way technology evolves - e.g. by
prohibiting certain applications or in the process of
developing standards.[54]
Arguably, copyright constitutes a form of information
policy, serving the public interest in maximizing the
availability of information products by, on the one
hand, granting an exclusive right and thereby providing
for an incentive to create and by, on the other hand,
limiting the scope of the monopoly copyright provides
for to ensure information will be widely available and
usable. Technological measures expand the control a
rights holder can exercise. Thus, the balance achieved
in copyright law is likely to be upset. Some
commentators therefore find that, instead of protecting
technological measures, the legislature should forbid to
preclude certain uses by way of technology.[55]
An often heard counter
argument is that the protection of technological
measures is necessary to compensate for the loss of
control in the digital environment. However, it is too
early to know whether copyright owners will indeed be
worse off in the ‘digital millennium’. Perhaps it is
too easily assumed that this will be the case.[56]
It could, for example, be much cheaper and easier to
deal with online piracy, than it is to find and stop the
offline distribution of infringing copies. By using
search-engines, rights holders can patrol the Internet
automatically and by issuing a notification to the
hosting service provider through streamlined notice and
take down procedures, they may be able to rapidly block
public access to infringing material.[57]
It has often been suggested that it would be wise to
wait and see whether technological measures really need
protection, instead of rushing to legislate them.[58]
However good this advice may be, it is likely that the
Copyright Directive will contain some form or another of
protection of technological measures. One can only hope
that Brussels will come up with a conceptually sound and
well balanced solution.
|
|
[1]
C. Clark, ‘The Answer to the Machine is in the Machine’,
in: P.B. Hugenholtz (ed.), The Future of Copyright in a
Digital Environment, The Hague/London/Boston: Kluwer,
1996, p. 139-148. Return to Text
[2]
See e.g. P.B. Hugenholtz, ‘Code as code, or the end of
intellectual property as we know it’, Maastricht
Journal of European and Comparative Law 1999, p.
308-318, also available at http://www.ivir.nl/publicaties/hugenholtz/MAASTRIC.DOC;
T.C. Vinje, ‘A Brave New World of Technical Protection
Systems: Will There Still Be Room for Copyright?’, EIPR
1996, p. 431-440; T.C. Vinje, ‘Copyright Imperilled?’,
EIPR 1999, p. 192-207. Return to Text
[3]
Article 18 of the WIPO Performances and Phonograms Treaty
of 1996 contains a similar provision. Return to Text
[4]
This was repeatedly emphasised at the Diplomatic
Conference in Geneva in 1996. See WIPO
Summary Minutes Main Committee I, prepared by the
International Bureau, WIPO Document CRNR/DC/102
(26.8.1997), nrs. 518, 523, 535-537 and 541. Return to Text
[5]
Council Directive 91/250/EEC of 14 May 1991 on the legal
protection of computer programs, OJ L 122/42. Return
to Text
[6]
See also article 296 of the UK Copyright, Designs and
Patents Act of 1988 and articles 1001-1010 of the US
Copyright Act (Title 17 USC). Return to Text
[7]
Article 13 of the Basic Proposal for the Substantive
Provisions of the Treaty on Certain Questions Concerning
the Protection of Literary and Artistic Works to Be
Considered by the Diplomatic Conference, WIPO Document
CRNR/DC/4 (30.8.1996), available at: http://www.wipo.org/eng/diplconf/index.htm.
Return to Text
[8]
See T.C Vinje, ‘All’s not quiet on the Berne Front’,
EIPR 1996, p. 587; Institute for Information Law
(K.J. Koelman & N.
Helberger), Protection
of Technological Measures, Amsterdam: Institute
for Information Law 1998, p. 17, also available at http://www.imprimatur.net/legal.htm.
Return to Text
[9]
See Institute for Information Law, supra note
8, p. 14-15. Return to Text
[10]
Comment 1 in respect of article 6 in the Explanatory
Memorandum with the Proposal for a European Parliament and
Council Directive on the Harmonization of certain Aspects
of Copyright and related Rights in the Information
Society, Brussels, 10 December 1997, COM (97) 628
final, available at http://europa.eu.int/comm/internal_market/en/intprop/intprop/docs/index.htm.
Return to Text
[11]
See European Parliament, minutes of 10 February 1999,
A4-0026/99. Return to Text
[12]
Amended Proposal for a European Parliament and Council
Directive on the harmonisation of certain aspects of
copyright and related rights in the Information Society,
Brussels, 21 May 1999, COM(99) 250 final. Available
at http://europa.eu.int/comm/internal_market/en/intprop/intprop/docs/index.htm.
Return to Text
[13]
Art 1201(b) of the US Copyright Act, introduced with the
Digital Millennium Copyright Act of 1998, Public Law No.
105-304, 112 Stat 2860 (28.10.98). Return to Text
[14]
See article 116A of the Copyright Amendment Bill of 1999.
The Bill and the Explanatory Memorandum with it are
available at http://www.copyright.com.au/digital_agenda_bill.htm.
Return to Text
[15]
The Dutch Copyright Advisory Board, which advises the
Dutch Government in copyright matters, finds that the
existing equilibrium should not be altered by the
protection of technological measures. See Commissie
Auteursrecht, Advies over auteursrecht, naburige
rechten en de nieuwe media, augustus 1998, p. 49,
available in English at http://www.minjust.nl:8080/c_actual/rapport/author.htm.
Return to Text
[16]
Comment 3 in respect of article 6 in the Explanatory
Memorandum, supra note 10 (‘not
any circumvention of technical means of protection should
be covered, but only those which constitute an
infringement of a right, i.e. which are not authorized by
law or by the author.’) Return to Text
[17]
Ibid. Return to Text
[18]
See also Comment 3 in respect of article 6 in the
Explanatory Memorandum, as quoted supra at note
16. Return to Text
[19]
The Japanese legislature approached this issue
differently. The new article 120bis(ii) of the Japanese
Copyright Act makes it a criminal offence to circumvent
‘as a business’. Consequently, circumvention for
private use is not covered. However, article 30 which
exempts private copying, states that such copying
nevertheless constitutes an infringement if the person
making the copy ‘knows that such reproduction becomes
possible by the circumvention of the technological measure’.
Thus, it is not the circumvention which is unlawful, as it
would be under the proposed Directive, but the making of
the copy. An English translation of the Japanese Copyright
Act is available at http://www.cric.or.jp/cric_e/ecolj/cl.html.
Return to Text
[20]
The text of the Amendment (supra note
11) was: ‘These exceptions and limitations must not
prevent the use of technical means to protect works with
the aim of safeguarding the interests of the rightholders,
nor prejudice the protection of these means as referred to
in Article 6.’ Return to Text
[21]
The US Vault case gives an example of the possible
consequences of such a rule. In this case, the Court found
that software that enabled to ‘hack’ the
copy-protection of another software product could not be
banned, because, even though the circumvention-enabling
software facilitated the making of illegal copies, it also
gave the possibility of making back-up copies, which is
permissible under US copyright law. Vault Corp. v.
Quaid Software, Inc., 665 F. Supp. 750 (E.D. La.
1987), aff’d, 847 F. 2d 255 (5th Cir. 1988). Return
to Text
[22]
Supra note 14. Return to Text
[23]
Of course, an explicit ‘right of access’ is lacking in
the US Copyright Act. But moreover, it does not explicitly
grant a ‘right of temporary reproduction’ which could
imply a ‘right of access’ either, as do the European
Software and Database Directives and as does article 2 of
the proposed Copyright Directive (see infra).
However, case law suggests that RAM copying is covered by
US copyright law (first decided in MAI Sys Corp v Peak
Computer, Inc, 991 F 2d 511 (9th Cir. 1993), cert.
denied, 126 L Ed 2d 640, 114 S Ct. 671 (1994)). The DMCA
added a subsection (c) to article 117 which could imply
statutory recognition of the ‘right of temporary
reproduction’. See J.C. Ginsburg, ‘Copyright
Legislation for the "Digital Millennium"’,
Columbia VLA Journal of Law & The Arts 1999, p.
141, nt 14. Return to Text
[24]
The new article 1201(a) of the US
Copyright Act protects measures which control access.
Article 1201(b) deals with measures which protect a right
of the copyright owner. Articles 1201(d)-(j) provide for
specific exemptions to the prohibition in article 1201(a).
Additionally, article 1201(a)(1)(B) of the Act provides
for an exemption that requires the Librarian of Congress
to draw up a list of ‘classes of works’ public access
to which may be ‘adversely affected’ by the
prohibition to circumvent a measure which controls access.
To circumvent a system protecting a type of work mentioned
in the list would not be unlawful. Currently the Librarian
is struggling with the question of how to fulfil this
task. See Federal Register Vol. 64, No. 226,
24.11.99, p. 66139-66143, available at http://www.loc.gov/copyright/fedreg/64fr66139.pdf.
See for a critical overview of these provisions P.
Samuelson, ‘Intellectual Property and the Digital
Economy: Why the Anti-Circumvention Regulations Need to Be
Revised’, Berkeley Technology Law Journal 1999,
p. 519-566. Return to Text
[25]
See Institute for Information Law (L. Bygrave & K.J.
Koelman), Privacy,
Data Protection and Copyright:
Their Interaction in the Context of Electronic
Copyright Management Systems, Amsterdam: Institute
for Information Law 1998, p. 43-46, also available at http://www.imprimatur.net/legal.htm.
Return to Text
[26]
In a draft for the Common Position on the Copyright
Directive of 22 December 1999, containing a new text for
negotiations between the Member States, access control has
been deleted from the provision. However, as the same
document shows that the Member States are discussing to
exempt the temporary copy only when it is authorized by
the rights holder or permitted by law, a ‘right to
control access’ may be reintroduced. Moreover, even if
any explicit reference to access control has been deleted
from article 6, to circumvent a measure that controls each
consultation of a (copy of a) work would be covered by the
provision, since to gain access to a digitized work would
imply to copy it temporarily in the computer’s RAM. Return
to Text
[27]
See also S. Dusollier, ‘Electrifying the Fence: The
Legal Protection of Technological Measures for Protecting
Copyright’, EIPR 1999, p. 290. The Japanese
legislature felt that is enough to protect measures that
inhibit acts of infringement. See article 2(xx) of the
Japanese Copyright Act, supra note
19. Return to Text
[28]
See Institute for Information Law 1998, supra note
8, p. 38. Return to Text
[29]
In a recent proposal for a WIPO Broadcasters Treaty,
submitted by representatives of broadcasting
organizations, it was proposed to grant broadcasters an
exclusive right to ‘decode their encrypted broadcasts’,
the purpose of which would be to prevent unauthorized
access. See article 5(i) of the proposed WIPO Treaty for
the Protection of the Rights of Broadcasting
Organisations, WIPO Document SCCR/2/6 (7.4.1999),
available at http://www.wipo.int/eng/meetings/1999/sccr_99.
Return to Text
[30]
N.A. Smith, ‘United States of America’, in: M
Dellebeke (ed.), Copyright in Cyberspace, ALAI Study
Days Amsterdam, 4-8 June 1996, Amsterdam: Cramwinckel
1997, p. 418. Return to Text
[31]
S. Olswang, ‘Accessright: An Evolutionary Path for
Copyright into the Digital Era?’, EIPR 1995, p.
215-218. Return to Text
[32]
It could be argued that the US legislature, while drafting
the DMCA, only contemplated the first access to, or
acquiring of a work, and not any consultation of a copy of
a work, since it likens circumventing an access
controlling measure to breaking into a locked room to
steal a copy of a book. See US House of Representatives, WIPO
Copyright Treaties Implementation and On-line Copyright
Infringement Liability Limitation, Report To Accompany
H.R. 2281, 22 May 1998, Report 105-551, Part 1, p. 19.
However, from the final wording of the Act another
conclusion could be drawn. See Ginsburg 1999, supra
note 23, p. 140-143. Return to Text
[33]
In the US, the DIVX (DIgital Video EXpress) standard was
introduced. DIVX was a DVD format, allowing the purchaser
to view the disc for only two days after it was first
accessed. After this time period, it could be used as a
pay-per-view feature, or just be thrown away. The
dedicated DIVX players included a modem and would send
billing information over the phone line every time the
copy were viewed after the first two days. The idea was
for DIVX to replace the video rental market. By now, for
several reasons the DIVX project has been terminated. See http://bsuvc.bsu.edu/~jrfoust/techno.html.
Return to Text
[34]
See Ginsburg 1999, supra note 23,
p. 142-143. Return to Text
[35]
Perhaps, this is one of the main reasons for the fact that
the ‘right of access’ following from the ‘right of
temporary reproduction’ in the Software Directive is
seldomly enforced. The Business Software Alliance (BSA)
tries to solve the problem of the undetectability of
infringers by establishing an ‘Anti-Piracy Hotline’
which people can call (anonymously) to turn in others that
they know run software unauthorized. See http://www.nopiracy.com.
Return to Text
[36]
Remarkably, the US and proposed EU legislation which
grants these rights, does not explicitly protect such
metering technologies, as they, strictly speaking, do
neither control access nor block the performance of an act
actionable under copyright law. Thus, a technology that
facilitates the enforcement of the protection of protected
technological measures appears itself not to be protected
and may be tampered with. Return to Text
[37]
See extensively Institute for Information Law 1998, supra
note 25; J.E. Cohen, ‘A Right to
Read Anonymously: A Closer Look at "Copyright
Mangement" in Cyberspace’, Connecticut Law
Review 1996, p. 981 ff., also available at http://www.law.georgetown.edu/faculty/jec/read_anonymously.pdf;
G. Greenleaf, ‘IP, phone home - ECMS, (c)-tech, and
protecting privacy against surveillance by digital works’
(1999), available at http://www2.austlii.edu.au/~graham/publications/ip_privacy.
Return to Text
[38]
European Parliament and Council Directive 98/84/EC of 20
November 1998 on the Legal Protection of Services Based
on, or Consisting of, Conditional Access, OJ L 320,
p. 54. See extensively N. Helberger, ‘Hacking BSkyB: The
Legal Protection of Conditional Access Services under
European Law’, Entertainment Law Review 1999, p.
88 ff., available at http://www.ivir.nl/publicaties/helberger/HackingBskyB.html.
The Directive is available at http://europa.eu.int/eur-lex/en/lif/dat/1998/en_398L0084.html.
Return to Text
[39]
Recital 21 of the CAD, however, leaves the Member States
the discretion to declare unlawful the private possession
of an illicit decoding device. Return to Text
[40]
See Council of Europe, Recommendation R(91)14, The Legal
Protection of Encrypted Television Services, 27 September
1991. The commentary to article 3 in the Explanatory
Memorandum with the CAD refers to this Recommendation. A
provisional version of 9 July 1997 of the Memorandum is
available at http://www2.echo.lu/legal/en/converge/condaccess.html.
Return to Text
[41]
Commentary with article 1(g) in the Explanatory
Memorandum, supra note 40 (‘[C]opyright
and related rights do not fall within the field
co-ordinated by the Directive: the interest protected by
the proposed measures is the remuneration of service
providers. Even though, from an economic point of view,
rightholders will certainly benefit from such measures,
this will be an indirect effect, and their interests
remain distinct.’). Return to Text
[42]
Article 5 of the CAD. Return to Text
[43]
From the provisions of the proposed Directive this
conclusion can be drawn. However, from comment 2 with
respect to article 8 in the Explanatory Memorandum (supra
note 10) a conclusion to the
contrary may follow. Perhaps the reasoning in the
Memorandum is the result of the misconception of
circumvention and preparatory activities to circumvention
as constituting copyright infringing acts. Return to Text
[44]
See Samuelson 1999, supra note 24,
p. 542-543. Return to Text
[45]
See e.g. Twentieth Century Music Corp. v. Aiken,
422 US 151, 156, 45 L. Ed. 2d 84, 95 S. Ct. 2040 (1975),
where the Court stated: ‘The limited scope of the
copyright holder’s statutory monopoly, like the limited
copyright duration required by the Constitution, reflects
a balance of competing claims upon the public interest:
creative work is to be encouraged and rewarded, but
private motivation must ultimately serve the cause of
promoting broad public availability of literature, music,
and the other arts. The immediate effect of our copyright
law is to secure a fair return for an ‘author’s’
creative labour. But the ultimate aim is, by this
incentive, to stimulate artistic creativity for the
general public good.’ (references omitted). Return to
Text
[46]
Article 3a(1) of European Parliament and Council Directive
97/36/EC of 30 June 1997 amending Council Directive
89/552/EEC on the co-ordination of certain provisions laid
down by law, regulation or administrative action in Member
States concerning the pursuit of television broadcasting
activities, OJ L 202/60. Return to Text
[47]
Letter to the Dutch Parliament of 10 May 1999, Tweede
Kamer 1998-1999, 26 538 nr. 1, p. 8, available in English
at http://www.ivir.nl/publicaties/documenten/engvert1.doc.
Return to Text
[48]
See e.g. the US House Report 1998, supra note
32, p. 25. There it is stated: ‘[T]hat the digital
environment poses a unique threat to the rights of
copyright owners, and as such, necessitates protection
against devices that undermine copyright interests. In
contrast to the analogue experience, digital technology
enables pirates to reproduce and distribute perfect copies
of works-at virtually no cost at all to the pirate. As
technology advances, so must our laws. The Committee thus
seeks to protect the interests of copyright owners in the
digital environment [...]’. Return to Text
[49]
See Ginsburg 1999, supra note 23,
p. 143; see also M.J. Meurer, ‘Price Discrimination,
Personal Use and Piracy: Copyright Protection of Digital
Works’, Buffalo Law Review 1997, p. 845 ff.
(arguing that the ostensible goal of expanded copyright
protection in the digital environment may be to restore
lost profits, but that, due to the broadened possibility
to price discriminate, the likely result will be a vast
gain in profits by copyright holders). Return to Text
[50]
The express goal of the technological DVD protection, for
instance, is ‘to keep honest people honest’. See D.S.
Marks & B.H. Turnbull, ‘Technological Protection
Measures: The Intersection of Technology, Law and
Commercial Licenses’ (1999), WIPO Document
WCT-WPPT/IMP/3, p. 14, available at http://www.wipo.int/eng/meetings/1999/wct_wppt/pdf/imp99_3.pdf.
Mossberg, while discussing Sony’s Music Clip, a walkman
designed to play music files that are technologically
protected, finds such an approach ‘offensive, because it
assumes we’re all crooks’. W.S. Mossberg, ‘Sony
Digital Player May Look Sleek, But It’s a Clunker’, Wall
Street Journal 2.3.2000. Return to Text
[51]
It must be noted here that the requirement in article 5(1)
stating that, to be exempted, the temporary reproduction
may not have any ‘independent economic significance’
could entail such a right to control access. If one would
purchase a copy of a work that would disintegrate after it
has been played a fixed number of times, would then,
presuming that the price is determined by the number of
times the work can be played, each loading into RAM have
independent economic significance for the purpose of the
Directive? Return to Text
[52]
In a draft of 22 December 1999, containing a new text for
negotiations between the Member States and the European
Commission (see also supra note
26), a subsection 4 is added to article 6,
specifically stating that technological measures are only
to be protected against circumvention if they block an act
actionable under copyright law, except where they prevent
private copying. Thus, the scope of copyright would affect
the extent to which circumvention is prohibited. In the
draft text, the copyright limitations would not affect the
prohibition on preparatory activities. Consequently, if
the draft were accepted, only skilful programmers would be
able to exercise their ‘right to circumvent’. At the
time this contribution was finalized, however, it was
under discussion to insert an obligation for copyright
owners who apply technological measures to under certain
circumstances provide users with the means to circumvent
the technological protection system. Return to Text
[53]
See US Senate, The Digital Millennium Copyright Act of
1998, Report and Additional Views to Accompany S. 2037,
11 May 1998, Report 105-190, p. 12 and 28-29. Return to
Text
[54]
J.R. Reidenberg, ‘Lex Informatica: The Foundation of
Information Policy Rules through Technology’, Texas
Law Review 1998, p. 568-581, available at http://www.epic.org/misc/gulc/materials/reidenberg2.html;
see also J.R. Reidenberg, ‘Governing Networks and
Rule-Making in Cyberspace’, Emory Law Journal 1996,
p. 917 (‘System design imposes rules of order on an
information society. Technical choices are policy
decisions that have inherent consequences for network
participants’); see also Hugenholtz 1999, supra note
2. Return to Text
[55]
See e.g. Cohen 1996, supra note
37, p. 66 in the electronic version (‘[R]ather than
penalizing legitimate and constitutionally protected
individual conduct, the government could enact legislation
that would outlaw intrusive, anonymity-destroying
practices by copyright owners’). Return to Text
[56]
Shapiro and Varian provide for two examples of previous
occasions - the rise of the library in the nineteenth, and
the rise of the VCR in the twentieth century - where, due
to changing circumstances, copyright owners feared to be
unable to generate enough income, but of which they in the
end benefited greatly, even though (in the US) no
additional rights were inserted. See C. Shapiro & H.R.
Varian, Information Rules, Boston: Harvard Business
School Press 1999, p. 94-97. Return to Text
[57]
It is common practice now, for hosting service providers
to ‘expeditiously’ take down material if rights
holders notify them that it is - in their opinion -
copyright infringing. Under the new article 512 of the US
Copyright Act providers are even incited to take down
material without asking questions; they risk becoming
liable if they do not. The UK based company Copyright
Control Services, for example, has been rather successful
in stifling the online ‘audio warez scene’ by causing
over 3400 ‘take-downs’ in a years time on behalf of
the joint pro-audio software producers. Recently, the
company has been hired by IFPI. See N. Bortloff & J.
Henderson, ‘Notice and Take-Down Agreements in Europe’
(1999), WIPO Document OSP/LIA/3, available at http://www.wipo.int/eng/meetings/1999/osp/doc/osp_lia3.doc.
See also http://www.copyrightcontrol.com.
Return to Text
[58]
See e.g. P. Samuelson, ‘Technological Protection for
Copyrighted Works’ 1996 (draft), available at http://www.sims.berkeley.edu/~pam/courses/cyberlaw/docs/techpro.html;
Vinje 1996, supra note 2, p.
439. 1 15.
|
|
Published
10.05.2000
|
|
|
|
