Kamiel J. Koelman

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