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1.1.1. Recommendation No. R(91)14 adopted by the Committee of Ministers of the Council of Europe on 27 September 1991 on the legal protection of encrypted television services
1.1.2. Draft Convention on the legal protection of services based on or consisting of conditional access
1.1.3. Protocol amending the European Convention on Transfrontier Television1.2.1. Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs
1.2.2. Council Directive 92/100/EEC of 19 November 1992 on rental right and lending rights and on certain rights related to copyright in the field of intellectual property
1.2.3. Directive 96/9/EEC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases
1.2.4. Amended proposal for a Directive of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society
1.2.5. Directive 95/47/EEC of the European Parliament and of the Council of 24 October 1995 on the use of standards for the transmission of television signals
1.2.6. Directive 97/36/EEC of the European Parliament and of the Council 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 concerni1.3. World Intellectual Property Organisation (WIPO)
1.3.1. WIPO Copyright Treaty
1.3.2. WIPO Performance and Phonograms Treaty
1.3.3. Further initiatives envisaged
2.1. Member States of the European Union
2.1.1. Austria
2.1.2. Belgium
2.1.3. Denmark
2.1.4. Finland
2.1.5. France
2.1.6. Germany
2.1.7. Greece
2.1.8. Ireland
2.1.9. Italy
2.1.10. Luxembourg
2.1.11. Portugal
2.1.12. Spain
2.1.13. Sweden
2.1.14. The Netherlands
2.1.15. United Kingdom2.2.1. Australia
2.2.2. Canada
2.2.3. Japan
2.2.4. United States of America
In the following, an overview is given of the existing national and international regulations which may be relevant in the context of conditional access (CA) services and their protection, particularly where those services use CA devices for non-remuneration reasons.
The following chapter is divided into two subsections. The first reports on relevant international legislation, including the relevant initiatives at the level of the Council of Europe, WIPO and the Council of Europe. Furthermore, where possibly relevant new legislation is pending, the drafts are briefly described.
The second subsection presents in alphabetical order the situation in the Member States of the European Union, as well as reports on Australia, Canada, Japan and the US. The country reports give a systematic overview of the legislation in those states. Within the framework of the reports, we also mention whether additional legislation on the legal protection of CA devices is envisaged (where such plans exist and to the extent that information is available), and if so, whether free CA services will also be covered.
The reports have a common structure, i.e.:
Introduction
Details: general information on title, source, date, classification and (where relevant) remarks
Scope of protection
Services protected: the extent to which radio, television broadcasting and IS services are protected
Protection of free CA services: the extent to which protection is conditional on the existence of a remuneration interest
Reasons protected: specific reasons focussed (or not focussed) on by existing legislation
Definitions: relevant definitions as far as such are provided by law
Unlawful activities: activities prohibited under national laws
CA services and the interests of third parties: additional legislation providing for specific provisions/obligations with a view to the balance between interests concerned
Sanctions/Remedies: penal, administrative and civil remedies, and planned sanctions
General legislation: applicable general legislation respectively where no specific legislation exists
Case law: specific case law dealing with the circumvention of CA devices when used for non-remuneration reasons/initialised by providers of free CA services
Additional legislation envisaged: further initiatives envisaged, particularly in the course of the implementation of the Conditional Access Directive (CAD) into national laws, with special emphasis on the question whether such initiatives also include free CA services which use CA devices.
Generally, all points will be addressed. Where certain points are not relevant or not addressed in a country, however, they will not be mentioned.
In the context of this study, the overview focuses primarily on legislation on the legal protection of technological access control techniques. Nevertheless, we complete the overview by briefly discussing other initiatives which are of relevance when dealing with the issue of CA, such as the Standards Directive and Article 3b of the Television Without Frontiers Directive.
As far as Member States have adopted specific legislation on the protection of technological measures in the field of copyright law, those provisions will be reported only where this is of particular interest for this study. This is because provisions on the protection of technological measures in the field of copyright law, unlike the CAD, do not address services using CA but a situation in which technological measures (not necessarily CA devices) are used to protect a work in the sense of copyright (see also «European Union»).
It should be noted, however, that existing legislation can be hard to find, because the subject is classified under very different legal headings, e.g. telecommunications, copyright, anti-piracy problems, counterfeiting, computer criminality, specific legislation, or plain penal or civil law. The same applies to initiatives: the subject is not always dealt with by the same ministry.
In September 1991, the Council of Europe adopted Recommendation No. R (91)14 on the legal protection of encrypted television services. This recommendation is the only known international regulation on the legal protection of access controlled services that does not distinguish between encryption used for remuneration and that used for other reasons. It thus protects both pay and free CA broadcasting services to the same extent.
On the basis of the Recommendation, specific legislation on the legal protection of encrypted television services has been implemented by a number of Member States of the Council of Europe, e.g. Denmark, Finland, France, Ireland, Switzerland and the UK.
Title: Recommendation No. R(91)14 adopted by the Committee of Ministers of the Council of Europe on 27 September 1991 on the legal protection of encrypted television services
Date: 27 September 1991
Source: http://www.coe.fr/cm/ta/rec/1991/91r14.htm
The Recommendation deals exclusively with encrypted television services. It does not deal with either radio broadcasting or IS services.
In this context, 'encryption' is understood in a broad sense to cover a variety of techniques, including coding and scrambling. Whether it is questionable if the recommendation also covers other means of access control such as password systems.
Interestingly, the Recommendation states that organisations providing encrypted television services have the responsibility to use the best available encryption techniques.
Although the Recommendation mentions that especially pay-TV services use encryption techniques, it addresses all television services which use encryption techniques, including free-of-charge television broadcasting services.
The Recommendation does not distinguish between the reasons for which encryption techniques may be used. In the Explanatory Memorandum to the Recommendation, the Council of Europe explicitly states that broadcasters may wish to restrict the audience of its programmes for such reasons as those of copyright and neighbouring right. Furthermore, particularly in the case of services for a professional vocation, broadcasters may wish to restrict access to programmes to a closed user group which has particular interest in the broadcasts (e.g. in the case of medical programmes). The Explanatory Memorandum states that even in cases where a programme service is not encrypted for direct financial reasons but with view to restricting its reception area to a given territory or audience, illicit access to that service entails legal uncertainty for the broadcaster concerned, even though such access may not cause it a direct financial prejudice. In addition, the broadcaster may expose itself to legal action from rightsholders in the works and other contributions incorporated in these programmes, on the grounds that the actual transmission area exceeds that foreseen in the contracts negotiated with the rightsholders (Explanatory Memorandum, No. 6).
'Encrypted services' are «all television services transmitted or retransmitted by any technical means, the characteristics of which are modified or altered in order to restrict access to a specific audience».
'Decoding equipment' is «any device, apparatus or mechanism designed or specifically adapted, totally or partially, to enable access 'in clear' to an encrypted service», that is to say, without the need to modify or alter its characteristics. The definition also refers to cases where access is only possible if the decoder is coupled to other pieces of equipment or devices. The definition also applies where a single piece of equipment provides various functions, one of them being to provide access to an encrypted service (Explanatory Memorandum, No. 15).
Under the Recommendation, the
following activities are considered unlawful:
- manufacture
- importation
- distribution
- commercial promotion and advertising or manufacture, importation or
distribution
- possession for commercial purposes of decoding equipment.
However, it is left up to Member States to determine whether private possession is an unlawful activity.
In the Explanatory Memorandum, it was indicated that there may be some concern as regards the principle of freedom of expression and free access to information. The opinion was expressed, however, that the freedom to receive broadcasts cannot be construed as an entitlement for the public to override the legitimate interests of those with an economic interest in the provision of television services.
Member States of the Council of Europe should make provisions for penal sanctions in case of unlawful activities.
The same applies to administrative sanctions. Provisions should include the search of premises and the seizure of any material relevant to the investigation, including the decoding equipment and the means used for its manufacture. In addition, destruction or forfeiture of decoding equipment should be provided for, as should the forfeiture of any financial gain.
Member States should also provide provisions allowing the injured encryption organisation to institute civil proceedings, notably to obtain injunctions or damages, claim profits as well as the seizure, destruction or delivery of decoding equipment, in as far as domestic law permits this.
The Council of Europe is currently finalising and preparing for adaptation the Draft Convention on the legal protection of services based on or consisting of conditional access.
Title: Draft Convention on the legal protection of services based on or consisting of conditional access
Date: Not yet adopted
Source: -
Similarly to the EC Conditional Access Directive (CAD), the Convention deals with broadcasting and IS services which are offered against payment and on the basis of CA, as well as CA services on their own.
The Convention, again similar to the CAD, does not address free CA services.
In the Explanatory Report to the Draft Convention, the Council makes clear that other reasons than to ensure remuneration interests for encrypting services and controlling access (such as security, privacy or the protection of rightsholders) do not come within the scope of the Convention. Although it was acknowledged by the authors of the Convention that the encryption of services for the purpose of protecting rightsholders deserved particular attention, it was considered preferable to deal with this question in a separate legal instrument. In this context, it was referred to the 1996 WIPO Treaties (WCT and WPPT Treaties) and the Draft Copyright Directive of the European Community.
'Protected service' means any
of the following services if they are provided against remuneration and on the
basis of CA:
- television programme services, as defined in Article 2 of the amended European
Convention on Transfrontier Television
- radio broadcasting services, meaning radio programmes intended for reception
by the public, transmitted by wire or over the air, including by satellite
- IS services, understood as those offered by electronic means, at a distance
and at the individual request of a recipient of services or
- the provision of CA to the above services considered as a service in its own
right.
The Convention declares unlawful certain preparatory activities with respect to the commercial illicit decoding business, such as the manufacture, production, importation, distribution, sale or rental, possession (for commercial purposes), installation, maintenance or replacement, as well as the commercial promotion, marketing or advertising of illicit devices. This catalogue of unlawful activities closely resembles that of the activities which are subject to the CAD.
Unlike the CAD, this convention requests Member States to adopt criminal or administrative sanctions. Measures shall be effective, dissuasive and proportionate to the potential impact of the unlawful activity.
In addition, Member States shall enable the seizure and confiscation of illicit devices and/or the promotional, marketing or advertising material used in the commission of an offence, as well the forfeiture of any profits or financial gains resulting from the unlawful activity.
Member States shall ensure that providers of protected services whose interests are affected by an unlawful activity have access to appropriate remedies, including bringing an action for damages and obtaining an injunction or other preventive measure, and where appropriate, applying for the disposal of illicit devices outside commercial channels.
Title: Protocol amending the European Convention on Transfrontier Television
Date: October 1998
Source: ETS No. 171, also http://www.coe.fr/eng/legaltxt/171e.htm
Although the amended European Convention on Transfrontier Television does not deal with the legal protection of CA devices, it states certain requirements concerning the content of access-controlled services and is thus worthy of mention in the context of this study.
Article 9 obliges Contracting Parties to examine and, where necessary, take legal measures such as introducing the right to short reporting on events of high interest for the public to avoid the right of the public to information being undermined due to the exercise by a broadcasters within its jurisdiction of exclusive rights for the transmission or retransmission, within the meaning of Article 3, of such events.
Furthermore, a new Article 9 bis has been introduced which provides, with reference to the Convention for the Protection of Human Rights and Fundamental Freedoms, that Contracting Parties may ensure by appropriate means that a broadcaster within its jurisdiction does not broadcast on an exclusive basis events which are regarded by that Party as being of major importance for society in such a way as to deprive a substantial proportion of the public in that state of the possibility of following such events by live coverage or deferred coverage on free television. The Convention also suggests, similar to the revised Television Without Frontiers Directive, [1] the drafting of lists of national or non-national events which are considered by a Party as being of major importance for society.
Article 7c of Directive 91/250/EEC (Software Directive) addresses technological measures used to protect computer programs. The provision does not necessarily focus on CA techniques, although CA devices (such as encryption techniques) are certainly one means with which to protect computer programs.
Title: Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs (91/250/EEC)
Date: 14 May 1991
Source: OJE No. L 122, 17 May 1991, p. 42
Classification: Copyrights and neighbouring rights
Protection granted under the Software Directive does not address services which use technical measures, but the particular situation where technical devices are used to protect a computer program. In doing so, the Directive focuses on a specific function of technical measures, i.e. the protection of computer programs. Technical measures in the sense of the Directive are probably not necessarily CA devices, although these are not explicitly excluded (e.g. encryption techniques). To give an example, a technological measure in the sense of the Directive may be a so-called dongel (software designed to prevent unauthorised copying).
The Directive may be of relevance to particular fields of e-commerce, particularly the increasingly important secure delivery of software via the Internet. However, the Directive does not cover such services resulting from a software-based working process, such as the final process of data or content transmission, the realisation of a text, sound or picture, etc. In other words, it focuses exclusively on the protection of software, not on a result the software realises.
Beneficiaries of protection are all natural or legal persons who are rightsholders in the thus protected computer program.
The Directive probably does not protect CA software itself where a CA technique is used to secure a program. The software which belongs to a CA device realises the technical protection, and thus is not software protected by a technical measure but is the technical measure itself.
The Directive focuses on the protection of computer programs as subject to copyright law protection.
Article 7 (c) Software Directive prohibits any act of putting into circulation, or the possession for commercial purposes of, any means where the sole intended purpose is to facilitate the unauthorised removal or circumvention of any technical device which may have been applied to protect a computer program.
The Directive does not suggest any specific sanctions but obliges Member States to provide appropriate remedies.
The Rental and Lending Rights Directive does not address the issue of the protection of CA techniques. The importance of this Directive lies in the fact that it recognises certain exclusive rights of broadcasting organisations (neighbouring rights) in the broadcasting transmission, rather than in the content of the transmission.
Should the proposed Copyright Directive [2] be adopted, neighbouring rights protection of broadcasters could be completed by Article 6 of the Directive, i.e. the protection of technological measures which are used by rightsholders (here, broadcasters) in order to protect their rights. In other words, broadcasting organisations could claim that certain unauthorised activities with regard to technological measures are unlawful under Article 6 of the Draft Directive.
Title: Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (Rental and Lending Rights Directive)
Date: 19 November 1992
Source: OJE No. L 346, 27.11.1992, p. 61
Classification: Copyrights and neighbouring rights
Remarks: Neighbouring rights of broadcasting organisations will probably also be subject to Article 6 of the proposed Copyright Directive (protection of technological measures)
Subject to protection are broadcasting organisations irrespective of whether their broadcasts are transmitted by wire or over the air, including by cable or satellite. Also protected are cable operators who provide own programming.
However, it is not quite clear whether also encrypted broadcasts are included. According to Article 1 Satellite Directive, [3] the Rental and Lending Rights Directive applies at least to programme-carrying satellite signals which are encrypted, provided the means for decrypting the broadcast are provided to the public by the broadcasting organisation or with its consent. It is not clear, however, whether this also applies to encrypted terrestrial and cable broadcasting.
The Directive does not cover IS services.
The guarantee of exclusive rights is given irrespective of whether or not a broadcasting service is provided against remuneration.
The Rental and Lending Rights Directive grants protected broadcasters certain exclusive rights, based on which broadcasters can prevent certain acts of unauthorised exploitation/piracy. These exclusive rights are a fixation right, a reproduction right and a right of communication to the public. However, the Directive does not address the protection of any technological measures.
The rights of broadcasters are subject to such limitations as private use, short excerpts, ephemeral copies and educational or scientific purposes.
Sanctions and remedies conform to the provisions of general national copyright laws.
Protection may eventually be completed by Article 6 Draft Copyright Directive (protection of technological measures), with the result that technological measures such as CA devices may also be protected (see below, also «Database Directive») when applied by broadcasters in order to protect a broadcasting transmission against pirate activities. [4]
The provisions of the Database Directive may have particular relevance to the field of IS services, especially with regard to information and on-demand services. This is because a considerable part of IS services [5] could qualify as a database and thus be protected by the Directive.
Title: Directive 96/9/EEC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases
Date: 11 March 1996
Source: OJE No. L 77, 27.03.1996, p. 20
Classification: Copyright and neighbouring rights
Remarks: Intellectual property rights in databases are possibly also included in Article 6 of the proposed Copyright Directive (protection of technological measures) [6]
The Database Directive does not
address services but databases. According to Article 1 (2) Database Directive,
'database' shall mean a collection of independent works, data or other materials
provided they are
- arranged in a systematic or methodical way, and are
- individually accessible by electronic or other means.
A database in the sense of the Directive can thus be any collection of information or contents irrespective of whether these are pictures, sounds, literature, articles, online journals, software tools, computer games, share quotation data, etc.
In this context, it must be noted that certain services (particularly such IS services as on-demand or interactive services) may be provided on the basis of a collection of relevant data and at the individual request by the user, i.e. a database in the sense of the Directive. [7] The crucial feature of e.g. an on-demand service is that the individual user requests a certain content (film, piece of music, game, software, etc.) which he/she previously selected from the offer of the service provider. Generally, a service provider will not wait until content, information, etc. is requested by an individual user before offering it, but will already have it secured and stored electronically. In other words, the service is operated on the basis of a collection of such contents. The contents in question are, necessarily, also individually accessible since they can be requested individually. Provided that such a collection of contents is arranged in a certain systematic or methodical way, or at least involves a substantial investment, the service provider may thus be considered a producer of a database in the sense of the Directive, and as such enjoy exclusive rights.
The guarantee of exclusive rights is given irrespective of whether or not a database is provided against remuneration.
The Database Directive grants producers of databases certain exclusive rights, based on which such producers can prevent certain acts of unauthorised exploitation.
Where a collection qualifies as a database in the sense of the Directive, it may under certain circumstances [8] be protected by copyright. As a result, the author of the database is granted certain exclusive copyrights with respect to the database as a whole. [9] Apart from that, even if a database does not qualify for copyright protection, its maker may be granted the right to prevent extraction and/or reutilization of the whole database or a substantial part of it (sui generis right). The sui generis right in databases is granted if qualitatively and/or quantitatively a substantial investment was involved in either obtaining, verifying or presenting the contents. [10]
The rights of broadcasters are subject to limitations, such as private use, educational or scientific purposes, public security or other exceptions under national law.
Sanctions and remedies conform to the provisions of general national copyright laws.
Again, protection may eventually be completed by Article 6 Draft Copyright Directive (protection of technological measures), with the result that technological measures which a service provider implement, such as CA devices may also be protected (see below).
However, the provisions of the Database Directive will not apply to IS services which are not based on a pre-prepared database, such as live streaming of web-radio programmes, interactive online games or online orders where the delivery is performed off-line. The Directive probably also does not apply to radio or television broadcasting, even if the transmission is provided on the basis of stored pre-made copies, since the contents of the programme are not individually accessible.
Within the framework of the proposal for a copyright Directive, it was proposed to introduce provisions on the legal protection of technical measures intended to protect copyright. The technical copyright protection measures referred to in the Draft Proposal are not necessarily CA techniques; however, certain CA devices such as encryption and scrambling techniques could constitute at least one form of technological measures as addressed by the proposal (apart from other forms of protection devices, such as anti-copying mechanisms, ECMS, etc.). [11]
Title: Amended proposal for a Directive of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society 10.12.1997, COM (97) 628 final
Date: Not yet adopted
Source: -
Classification: Copyright and Neighbouring rights
The Draft Directive does not address certain services which use technological devices, but a situation where technological measures are used by authors or holders of neighbouring rights in order to protect copyrights, neighbouring rights or the sui generis right in databases.
The precondition for protection is that the devices in question are designed to protect intellectual property rights.
The Draft Directive protects copyright and neighbouring rights.
According to the proposed Directive, protection is granted (unlike under the CAD) not only against commercial preparatory activities but also against the act of circumvention itself. 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.» Whereas the proposed catalogue of preparatory commercial activities resembles the CAD and comprises probably the manufacture, import, distribution, sale, rental, possession and advertisement of illicit devices. Their installation, maintenance, replacement is not included.
The notion of «illicit devices» is, in comparison to the CAD, more restrictively defined as
«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 of, 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.»
Secondly, also the notion of technological measures is, at the first glance, more restrictive than this is the case for CA devices in the sense of the CAD: Under the proposed Copyright Directive, devices must be «effective». It is still unclear, what «effective» in this context means. In the latest official proposal it was suggested to consider «effective» devices «where 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 de-cryption, descrambling or other transformation of the work or other subject.» The definition, thus, could be interpreted in a way as to refer to CA devices in general.
However, where CA devices are used to protect exclusively the intellectually property rights of a third person, it is questionable whether a mere service provider can claim protection. Generally, intellectual property right entitles only the rightsholder (i.e. not third parties) to certain rights. This poses no problem, at least where service providers such as broadcasters use CA devices in connection with own copyrights or neighbouring rights.
Similarly to the CAD, it was proposed to oblige Member States to ensure appropriate sanctions and remedies. The sanctions thus provided for shall be effective, proportionate and dissuasive and acts as a deterrent for further infringement.
Also the catalogue of remedies proposed resembles the CAD and includes claims for damages and/or injunction as well, where appropriate, seizure of infringing material.
It is likely that the application of CA devices in the context of copyrightable material will be subject to certain restrictions as far as this is necessary to warrant the exercise of certain exemptions by users of works or services. In so far, the final version of Article 6 of the proposed Copyright Directive must be awaited.
Summarising, the level of proposed protection for users of technological measures could resemble the level of protection CA users enjoy under the CAD – with some differences, e.g. a stricter definition of illicit devices.
Title: Directive 95/47/EEC of the European Parliament and of the Council of 24 October 1995 on the use of standards for the transmission of television signals (Standards Directive)
Date: 24 October 1995
Source: OJE No. L 281, 23.11.1995, p. 51
Classification: Technical standards
The so-called Standards Directive deals with another aspect of CA, i.e. the standardisation of CA technologies. One aim of the Directive is to ensure a certain degree of compatibility and fair competition between competing systems. Article 4 (c) Standards Directive obliges providers of CA devices for digital television services to offer to all broadcasters, on a fair, reasonable and non-discriminatory basis, technical services which will enable the broadcasters' digitally-transmitted services to be received by viewers authorised by means of decoders administered by the service operators, and to comply with Community competition law, in particular if a dominant position appears. This is in order to ensure fair competition not only between the producers of CA devices but also between CA producers and digital television broadcasters.
Note that the Standards Directive does not apply to CA within the framework of IS services. Furthermore, it is also not clear whether the Directive applies to CA devices which are used for non-remuneration reasons. The recitals to the Directive seem to indicated that is was drafted with pay-TV in mind.
Title: Directive 97/36/EEC of the European Parliament and of the Council 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 (Revised Television Without Frontiers Directive)
Date: 30 June 1997
Source: OJE No. L 202 , 30.07.1997, p. 60
Classification: Broadcasting law
Although Article 3a of the revised Television without Frontiers Directive does not deal with the legal protection of CA devices, it states certain requirements concerning the content of access-controlled services and is thus worthy of mention in the context of this study.
The provision obliges Member States to ensure that broadcasters do not broadcast on an exclusive basis events which are regarded by that member state as being of major importance to society. Broadcasters may not deprive a substantial proportion of the public in that member state of the possibility to follow such events via live coverage or deferred coverage on free television. The underlying intention is to warrant the conditions for a free flow of information relevant to the process of public opinion-making.
Note that there are no such obligations as regards the transmission of important events within the framework of IS services (e.g. webcasting). Free access to certain online contents is still not subject to either European or national legislation.
'Free television' in the sense of the Directive means «broadcasting on a channel, either public or commercial, of programmes which are accessible to the public without payment in addition to the general broadcasting fee or the basic tier subscription fee to a cable network.» However, it is not clear whether services which are encrypted for non-remuneration reasons also fall under the definition of 'free television'.
Article 11 WIPO Copyright Treaty addresses the legal protection of technological measures when used by authors to protect copyrights. The regulation does not necessarily address CA devices. On the other hand, perhaps CA also can be used for reasons of copyright protection.
Title: WIPO Copyright Treaty (WCT)
Date: 20 December 1996
Source: http://www.wipo.org/eng/main.htm
Article 11 WCT deals with technological measures used to protect copyrights. Note that the WCT focuses on authors only and thus does not cover e.g. broadcasters which use CA as means to protect their neighbouring rights in the broadcasting transmission.
Where providers of free CA services use technological measures to protect own copyrights in the content of the transmission, they may fall to the same extent under the provisions of Article 11 WCT as providers of pay services which use the technology for the same purpose, irrespective of the existence of any remuneration interests.
The provision focuses exclusively on the protection of copyrights.
Article 11 WCT addresses in more general terms the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights and with restrict acts (in respect of works) not authorised by the authors concerned or permitted by law. The notion 'permitted by law' refers primarily to the set of exemptions generally provided by copyright laws.
Member States shall provide adequate legal protection and effective legal remedies. The WCT leaves Member States free to decide what remedies are appropriate.
Similar to Article 11 WCT, Article 18 WIPO Performance and Phonograms Treaty (WPPT) deals with the legal protection of technological measures used to protect intellectual property rights of performers and phonogram producers.
Title: WIPO Performance and Phonograms Treaty (WPPT)
Date: 20 December 1996
Source: http://www.wipo.org/eng/main.htm
Article 18 WPPT deals with technological measures to protect certain neighbouring rights. Again, the provision does not address particular services which use technological measures than a situation in which devices are used to protect certain neighbouring rights. Note that the WPPT focuses on performers and phonogram producers only, and thus does not cover e.g. broadcasters which use CA as means to protect their neighbouring rights in the broadcasting transmission.
Where providers of free CA services use technological measures to protect neighbouring rights in phonograms and performances, they may fall to the same extent under the provisions of Article 18 WPPT as providers of pay services which use the technology for the same purpose, irrespective of the existence of any remuneration interests.
The provision focuses exclusively on the protection of neighbouring rights in phonograms and performances.
Article 18 WPPT addresses in more general terms the circumvention of effective technological measures that are used by performers and phonogram producers in connection with the exercise of their rights and which restrict acts (in respect of works) that are not authorised by the parties protected or permitted by law. The notion 'permitted by law' refers primarily to the set of exemptions generally provided by copyright laws.
Member States shall provide adequate legal protection and effective legal remedies. Again, the WPPT leaves it to Member States to decide what remedies are appropriate.
The WIPO Expert Group on Copyright and Related Rights is currently preparing an additional instrument on the legal protection of the neighbouring rights of broadcasting organisations, because the broadcasting organisations as potential subject matter under neighbouring rights protection have not been considered within the framework of the WCT and WPPT.
Although there have been a number of concrete proposals, it is still too early to give any clear indications what the content of the instruments may be. It was generally agreed, however, that following the model of Article 11 WCT and Article 18 WPPT, a provision should be adopted to deal with the legal protection of technological measures when applied by broadcasting organisations in the context of the exercise of their neighbouring rights.
In Austria, there is no specific legislation on the legal protection of CA devices. Legal protection against those who commercially distribute pirated decoders is generally based on unfair competition law. No cases are known, however, where Article 1 Gesetz gegen den unlauteren Wettbewerb (UWG; unfair competition law) has been applied to acts of piracy against providers of free CA services.
Article 1 UWG has repeatedly been invoked by providers of pay-TV services as the basis for possible claims against acts of commercial distribution of pirate decoders. However, this is not effective against those who buy such devices.
Article 1 UWG provides for injunction against and compensation from those who perform acts of competition which do not comply with codes of fair behaviour. According to relevant jurisdiction, an act of competition requires the existence of real competition. The later is generally supposed to exist when enterprises address more or less the same consumers, whereas it is not necessary for actual competition to exist between the parties. Parity or similarity of goods or services offered is not required, just similarity of consumers.
Until now, however, Article 1 UWG has only been invoked in the context of pay-TV services. Thus, it remains to be seen whether courts also consider the sale of decoders etc. capable of decrypting services which use CA for non-remuneration reasons (but see below) as an offence against unfair competition law.
In addition, the provisions of copyright law may be applicable.
There has been a case concerning the sale of software which removes anti-copying protection from other computer software. In this context, CA was used for non-remuneration interests (i.e. copyright protection). The Court of Cassation decided that the sole unauthorised use of this kind of software by the consumer is an illegal or unfair act - in the sense of Article 1 UWG - committed by the vendor, who is the consumer's accomplice (Oberster Gerichtshof, 25 October 1988, WB1 1988/56).
There are plans to introduce legislation on the protection of CA devices in order to implement the Conditional Access Directive (CAD) into Austrian law (http://www.parlinkom.gv.at/archiv/XXI.pdf/ME/00/00/000018.pdf). According to information from the Federal Ministry of Justice (the body responsible for implementation of the CAD), the aim is to strictly follow the provisions of the CAD. Thus, there are no plans to extend protection under Austrian law to providers of free CA broadcasting/IS services or to non-remuneration reasons to use CA. It has been indicated, however, that possibly the Austrian regulation will be drafted in a way that allows it to be interpreted to also cover public broadcasters. Public broadcasting television is not provided against direct remuneration but against prior payment of a general licence fee. Thus, on the basis of a broad interpretation of 'remuneration', the new law may also prohibit unauthorised activities with intent to receive public broadcasts without having paid the license fee.
In Belgium, there are two specific regulations on the legal protection of CA devices used by broadcasting services; however, there are no such provisions for IS services. The first provision applies to the French-speaking community (Décret of 27 July 1987 on broadcasting (M.B., 22 Augustus 1987)) and exclusively protects CA devices used by providers of pay-TV services, where this is done for remuneration reasons, whereas the provision applying to the Flemish community (Décret of 25 January 1995 on broadcasting (M.B., 30 May 1995): Besluit van de Vlaamse regering tot coordinatie van de decreten betreffende de radio-omroep en de televisie: Article 119) deals to some extent with the distribution of decoding devices irrespective of the reason CA serves and may apply also to free encrypted cable services.
Due to the recent constitutional and institutional reform in Belgium, broadcasting is now a matter of regional competence. There is therefore no specific federal legislation on piracy, nor is it clear if the federal government intend to implement new anti-piracy measures. However, if the regional legislation proves to be inadequate in the future, a law could be introduced at the federal level.
Title: Articles 19, 43 Décret of 27 July 1987 on broadcasting (French-speaking community).
Date: 1987
Source : M.B., Augustus 1987
Classification: Broadcasting law.
Remarks: Décret of 27 July 1987 applies to the French-speaking community, and Décret of 25 January applies to the Flemish sector. As far as the German-speaking community is concerned, there is no specific legislation.
Décret of 27 July 1987 covers television broadcasting, and possibly radio broadcasting. Whereas IS services are not covered.
Décret of 27 July 1987 was reported to focus only on the protection of pay services.
Décret of 27 July 1987 protects the remuneration and other economic interests of broadcasters.
'Système d'access conditionnel' is defined as «l'ensemble des moyens matériels et logiciels utilisés soit par un ou des systèmes de gestion des abonnés, soit par le public lui-même dans le cadre d' une gestion locale de l'acceès aux services de radiodiffusion au seul public disposant des titres d'acceès requies» (Article 1 Section 19).
The Décret of 27 July 1987 primarily prohibits unauthorised
reception and related activities, such as:
- the direct broadcasting of a decrypted programme to a third party without
authorisation
- providing a recording of a decrypted programme to a third party without
authorisation
- receiving a decrypted programme from a third party without authorisation.
No distinction is made between unauthorised activities for commercial purposes and those for private purposes.
Title: Décret of 25 January 1995 on broadcasting (Besluit van de Vlaamse regering tot coordinatie van de decreten betreffende de radio-omroep en de televisie: Article 119) (Flemish-speaking community).
Date: January 1995
Source : M.B., 30 May 1995
Classification: Broadcasting law
Article 119 Décret of 25 January 1995 on broadcasting protects only radio and television broadcasting. The regulation does not deal with the protection of IS services.
Article 119 Décret of 25 January 1995 distinguishes between cable programmes and television programmes. In the former case, the programme signal does not need to be provided against remuneration in order to be protected, whereas in the latter case it does.
Décret of 25 January 1995 does not distinguish between the different reasons the technology may serve.
'Betaalomroep' is defined as «een omroep die aan elke ontvanger de gelegenheid biedt tegen extra betaling, bovenop de prijs van het kabelabonnement en/of kijk- en luistergeld, een selectie van programma's te ontvangen» (Article 119).
The Décret of 25 January 1995 focuses on such preparatory
activities as:
- the manufacture, import, distribution, sale, rental, possession and
installation of decoding devices
- the use of commercial communications
- the individual purchase or rental of decoding devices. (Whereas the specific
provision applicable to the French-speaking community focuses on the
unauthorised interception of signals).
No distinction is made between unauthorised activities for commercial purposes and those for private purposes.
The relevant Belgium provisions do not take into account the possible interests of third parties which may be involved where CA techniques are used by service providers.
Both decrees provide for fines (26 to 10.000 Belgian francs (Euro 0,63 – 248); these amounts are usually increased by a certain amount defined each year by law).
In addition, under the Décret of 27 July 1987, a judge can order confiscation of any devices that were used to commit the offence.
On the federal level, the provisions of the general unfair competition law may be applicable to cases of circumvention.
Where existing legislation is not sufficient - at least in the French-speaking part of the country, where the distribution of decoding devices is not covered as well as it is on the federal level - case law has generally referred to unfair competition law in order to prohibit the distribution, manufacture or sale of circumventing devices, such as unauthorised decoders or decryption devices used to decrypt TV signals.
Furthermore, a bill on computer crime is pending in Belgium and its provisions may be applicable to the circumvention of access control systems. Article 550 bis Criminal Code (to be introduced by the bill) will prohibit unauthorised access to computer systems. A requirement for this prohibition will be that the person should have known that access was denied to him/her. In this case, the existence of a CA system could in itself be proof that the person was not allowed access.
No case law applying to the specific provisions on the legal protection of CA as described above is known. As far as case law does exist, decisions have been based on general laws, particularly those on unfair competition. Reported decisions, however, deal exclusively with pay-TV providers which use CA devices for remuneration interests.
In Belgium it is apparently still under discussion who is responsible for the implementation of the CAD (Federal State or the Communities) and in which way the Directive might be given effect.
In Denmark, there are specific provisions on the protection of broadcasting services based on CA techniques. Protection is granted irrespective of whether or not the service is offered against remuneration. However, no such legislation exists on the protection of (free or pay) IS services which use CA devices.
Title: Danish Broadcasting Act, The Ministry of Culture's Consolidation Act No. 138, 19 February 1998
Date: February 1998
Source: http://www.kum.dk/
Classification: Broadcasting law
Article 75a Danish Broadcasting Act deals with the protection of the «contents of encoded radio or TV programmes».
IS services are not included. The regulation of IS services is the responsibility of a different ministry (Ministry of Research), which so far has not adopted any specific legislation on the protection of these services.
Under Article of the 75a Danish Broadcasting Act, probably all encoded programmes are protected, including those provided for free (i.e. not against the payment of an additional fee).
Since the Act does not mention specific reasons for implementing access control, probably all reasons to use CA are protected.
Only preparatory activities are prohibited. Furthermore, only activities carried out for commercial purposes are banned.
According to Article 75a Danish Broadcasting Act, it is
prohibited as a commercial activity to:
- manufacture, import, sell, own or adapt decoders or other decoding equipment
the purpose of which is to give unauthorised access to contents of an encoded
radio or TV programme
- in addition, advertisements for or other forms of promoting such equipment are
not permitted.
In Denmark, the provisions of Article 3b Television without Frontiers Directive have led to the implementation of a specific provision on encrypted programmes and the interests of third parties. The reason for this provision is the public's interest in receiving broadcasts of certain events of major importance to society. Accordingly, Article 75 Section 1 Danish Broadcasting Act states that the Ministry for Culture may lay down rules to the effect that television broadcasters may not exercise any exclusive rights to report on events of major importance to society in such a way that a substantial portion of the public is deprived of following such events on free, un-encrypted television. The same applies to television broadcasters subject to Danish jurisdiction as regards events which have been declared by other EU Member States to be of major importance to society (Article 75 Section 2).
The Minister for Culture may establish certain limitations regarding the exercise by television broadcasters of their exclusive rights to transmit such events. These limitations may allow other television broadcasters to broadcast short excerpts of the reported events, in order to secure for the public the «right to be kept informed» (Article 75 Section 3).
Any person who deliberately or by gross negligence infringes Article 75a may be subject to a fine or imprisonment (mitigated imprisonment or a term of unmitigated imprisonment for up to 6 months) (Article 76a Danish Broadcasting Act).
Confiscation of the pirate company's profit and pirate decoding equipment is possible according to the Penal Code. The law of administration of justice concerning search, inspection, confiscation, etc. applies to police investigations of pirate decoder cases.
Ordinary liability laws apply. Rightholders in companies may initiate proceedings, either parallel to a criminal case or independently. It is possible to incur compensation liability, even if there is no punishable case (e.g. the breach was not deliberate, or it involved simple rather than gross contempt).
No case law applying to the provisions discussed above has been reported. Furthermore, no cases are known where providers of free CA services have claimed protection against pirate activities on the basis of general laws.
There are plans to draft additional legislation on the legal protection of CA services. The draft proposal is expected to deal exclusively with the protection of IS services. It is not felt necessary to adopt additional legislation with respect to broadcasting services which use CA devices (although there is some discussion concerning the prohibition of the private use of illicit devices).
The draft law covers only services that are «normally provided against payment». We have been informed, however, that this wording is not intended to exclude free CA services, but to restrict application to services which have an own economic value (as opposed to e.g. private homepages or non-commercial information offers).
The draft law will prohibit preparatory activities performed for commercial purposes, such as the production, import, sale, possession, adaptation, etc. of decoders.
In Finland, there is specific legislation on the legal protection of CA techniques used for non-remuneration reasons. Although the regulation is part of the Finish telecommunication law, it is apparently also applicable to broadcasting services due to a broad definition of the term 'telecommunications'.
Title: Section 25 of the Finish Telecommunications Market Act 396/1997
Date: Amendment April 1999
Source: http://www.mintc.fi/www/sivut/suomi/telemarkkina/telecom/norms/1997_396.htm
Classification: Telecommunications law
Television and radio broadcasting services (cable and satellite) are protected. IS services are not protected.
Protection is granted irrespective of whether the service is provided against remuneration. Consequently, also free CA services are covered.
No specific reasons are stated which the technology must serve in order to be protected. The main general interest objectives underlying the Telecommunications Market Act are to protect remuneration interests, to ensure security of communications, and to protect intellectual property rights and the economic interests of service providers.
'Telecommunications network' means «the transmission systems which enable the transmission of messages between certain interconnection points either by wire, radio, optical or other electromagnetic means».
'Telecommunications service' means «a service the provision of which consists in part or as a whole of the transmission or routing of messages in a telecommunications network».
'Decoding system' means «any equipment, part of equipment or another system whose purpose is to decode the protective code effected through specific technical means from a message conveyed in the telecommunications network» (Article 4 Telecommunications Market Act).
According to Article 25 Telecommunications Market Act, the unlawful interception, possession, use, manufacture, import, marketing, sale, distribution, rental, installation, maintenance, replacement and sales promotion of a decoding system for a protective code is forbidden.
No distinction is made between unauthorised activities for commercial purposes and those for private purposes.
Under Article 25, it is possible to obtain permission from the Telecommunications Administration Centre (TAC) to use a decoding system which normally could also be used to circumvent the encrypted offers of other service providers. TAC is entitled to react to exceptional situations.
It was not reported, however, whether the provision has already been applied.
Article 45 Telecommunications Market Act states that anyone who wilfully possesses, manufactures, uses, imports or markets a decoding system or promotes its sales in violation of Article 25 shall - if a more severe penalty is not provided for elsewhere in the law - be fined for violating the provisions on telecommunications operations to a fine or imprisonment up to 6 months.
According to Article 42, TAC or the responsible ministry may impose a conditional monetary fine or administrative sanction (i.e. to partly or fully discontinue the operation). In addition, any economic benefit accruing to the person who committed the crime or to the person on whose behalf the crime was committed can be subject to seizure according to the rules of the Penal Code. A decoding system used to commit a crime shall be forfeited to the State except in extremely mitigating circumstances (Article 46 Telecommunications Market Act).
It is unclear to what degree it is possible to initiate civil proceedings. In Finland, it is generally possible to apply for damages during criminal proceedings. Any party concerned (e.g. a copyright holder) can bring a criminal case against a person who used an illegal decoder. In practice, it seems possible to initiate civil proceedings against professionals, but not against persons who act for private viewing purposes.
The Telecommunications Market Act includes some detailed regulations on means and procedures of enforcing the provisions on decoding devices. According to Article 39, an inspector appointed by TAC [12] shall supervise the import, marketing and sales promotion of telecommunications terminal equipment and decoding systems.
If an inspector discovers evidence of a possible violation of the Act, he has the right to gain access to a place where telecommunications terminal equipment or a decoding system is located or where such is suspected on reasonable grounds to be located. TAC is entitled to executory assistance from the police, the customs authorities and the Frontier Guard.
If there is probable cause to suspect that Article 25 (decoding devices) has been violated, the inspector has the right to remove the equipment for inspection and forbid the marketing or transfer of the equipment or system during the inspection to be carried out.
At the request of the inspector, anyone marketing telecommunications terminal equipment must provide the inspector with information on the technical specifications and conveyance of the equipment .
Section 7 Radiolag (law on radio communications) protects the secrecy of signals and may be applicable where CA systems are used to protect them. According to this provision, it is prohibited to record, disclose or make use of the contents or the knowledge of the existence of radio communication not intended for reception by the person who receives the service. It is also prohibited to possess equipment intended to remove protection, achieved by means of a special technical system, from such radio communication, without permission from TAC. Anyone who violates these provision may be ordered by TAC to amend his/her fault or neglect, and TAC may impose a conditional fine.
No case law applying to the provisions discussed above has been reported.
There are plans to draft additional legislation to protect CA services and implement the CAD.
According to information from the Ministry of Transport and Telecommunication (which is responsible for the implementation of the CAD), planned legislation will protect not only television and radio broadcasting services, but also IS services. The new law - which is still being drafted - will transfer the existing provisions on CA to a separate act. As far as the protection of free CA services is concerned, it is planned to narrow the scope of the existing legislation (described above) by excluding free CA services from its scope. This decision was explained by reference to the CAD, which does not include free CA services.
It is expected that the draft will be presented to parliament within a few weeks. [13]
France was one of the first EU Member States to introduce specific legislation on the legal protection of CA services. The relevant provision was originally in Article of the 429 French Penal Code (Loi No. 87-520 of 10 July 1987), but has now been implemented in Article of the 79 French Audiovisual Law. The provision focuses exclusively on the protection of pay CA services.
Title: Article 268 Loi No. 92-1336 du 16 décembre 1992 relative à l'entrée en vigueur du noveau code pénal et à la modification de certaines dispositions de droit pénal et de procédure pénale rendue nécessaire par cetter entrée en vigueur
Date: December 1992
Source: Journal Officiel No. 298 du 23 décembre 1992
Classification: Penal law
Remarks: Modifies Article 79 Loi No. 86-1067 of 30 September 1996 on the freedom of communication
Article 268 Act No. 92-1336 (Article 79 Loi No. 86-1067) protects audiovisual services, i.e. radio, broadcasting and probably also IS services.
Programmes fall under the scope of Article 268 Loi No. 92-1336 (Article 79 Loi No. 86-1067) if they have been restricted to a limited audience which has obtained access by paying a fee to the service provider. In other words, only pay CA service providers are subject to protection.
The law does not distinguish between the different reasons CA devices may serve, as long as the service is distributed by a pay CA service provider.
Prohibited activities are manufacture, importation with intent to sell or rent, offer to sell, storage with intent to sell, sale or installation of equipment, appliances or instruments designed wholly or partly to fraudulently receive protected broadcast programmes (Article 79 Section 1). It is also prohibited to order, design, organise or distribute advertising material which promotes such equipment (Article 79 Section 2).
In addition, private possession or acquisition of such equipment, appliances or instruments with intent to use is punishable (Article 79 Section 4).
Violations of Article 79 can be punished by imprisonment up to two years and the imposition of fines up to FF 200.000 (Euro 30490).
In addition, the court may order the confiscation of equipment, appliances, instruments and advertising material (Article 79 Sections 5, 6).
No case law dealing with the circumvention of free CA services which use CA devices has been reported.
Presently, two draft laws concerning implementation of the CAD are being discussed (see http://www.Internet.gouv.fr). The proposals concern both broadcasting and information services. Currently, however, there are no plans to exceed the provisions of the CAD by including free-service providers which use CA devices.
In Germany, there is no specific legislation on the legal protection of CA services. However, there are plans to adopt such legislation in order to implement the CAD.
Cases of circumvention of CA devices used for non-remuneration reasons could be dealt with under general laws, particularly the unfair competition law (Articles 1, 17 UWG; Industrial espionage) and the penal law (Article 202a Criminal Code; Data theft). However, some penal provisions which probably could be applied for directly remunerated CA services (e.g. 263a Criminal Code (Computer fraud); 265a Criminal Code (Leistungserschleichung)) do not seem suitable for situations in which CA devices are used by providers of free CA services, since they protect direct financial gains or direct payment interests.
No case law dealing with free CA services as victims of pirate activities has been reported. However, one case law concerned multifunctional decoders which are also capable of circumventing non-directly remunerated services (Firma Teleclub GmbH v. Firma Manfred Haas GmbH, Oberlandesgericht München (Court of Appeal), 19 March 1992, 29 U 4370/91). During the proceedings, the defendant claimed that his devices were multifunctional and not specifically designed to circumvent the CA devices of the plaintiff. The defendant had been selling devices which could be used for a variety of reasons, including to gain access to the CA-based pay TV service of the plaintiff. The defendant claimed that his decoders were not specifically designed to enable unauthorised access to the plaintiff's services. However, the court did not accept this argument and convicted the defendant of an offence under Article 1 UWG.
Currently, new legislation on the legal protection of CA devices is being drafted, in order to implement the CAD into German law. According to information from the responsible ministry, however, at the moment there are no plans to exceed the scope of the Directive by extending protection to providers of free CA services.
In Greece, there is currently no specific legislation on the legal protection of CA services.
In a circumvention situation, a variety of general laws may apply, such as civil and penal law and the general law on data protection, telecommunication and broadcasting, which may also be invoked by providers of free CA services.
No relevant case law has been reported. There have been some out of court settlements between subscriber television service providers and consumers who had illegally used decoder equipment to access their services. These cases, however, dealt with acts of circumvention carried out with intent to avoid paying requested fees.
The concession contract to be signed in mid-December between the Minister of Press and Mass Media and the multi-choice service providers of digital TV pay-per-view services (NOVA) is reported to embody specific regulations on procedures for out of court settlement in the case of piracy activities. Further details are unknown at the time of writing, since the agreement has not yet been published.
There are plans to implement the CAD into national law. It was not yet reported how Greece will give effect to the CA Directive.
In 1990, Ireland adopted specific provisions on the legal protection of broadcasting services against pirate activities in its Broadcasting Act. Article 9 of the Act focuses primarily on the unauthorised interception of broadcasting irrespective of whether or not programmes are encrypted. It is very questionable whether the provision could be interpreted in a sense also to cover encrypted free CA services.
Name: Broadcasting Act 1990
Date: July 1990
Source: http://www.ucc.ie/ucc/depts/law/irishlaw/
Classification: Broadcasting law
Remarks: Article 16 Broadcasting Act includes a provision empowering the Minister of Communication to extend protection to encrypted, wireless transmitted pay-TV services. Whereas it is not clear whether this also applies to free encrypted services.
Article 9 of the Irish Broadcasting Act specifies two groups of beneficiaries: licensees and service providers. The former are considered broadcasting services, included encrypted services, in the sense of the Wired Broadcast Relay Licence Regulations 1974 or of the Wireless Telegraphy (Television Programme Retransmission) Regulations 1989, which are primarily cable broadcasting and MMDS services.
Article 16 enables the provisions to be extended to pay-services on any wireless apparatus by the making of an order (in the sense of «any class of service transmitted by wireless telegraphy intended by the service provider to be received only by persons paying a fee to the service provider»). Up to now, an order under this section has not yet been made. From Article 16, however, one could also conclude that, until now, access controlled service do not fall under Article 9 unless an adequate order has not been made.
In its present form, the Irish Broadcasting Act 1990 possibly could be understood to also protect access controlled free CA services which are transmitted via cable or MMDS systems.
Article 9 of the Irish Broadcasting Act does not directly deal with the protection of technological measures but rather with the unauthorised interception of services. Consequently, the Act does not distinguish between the different reasons CA devices may serve.
'Interception' means in relation to a service, «to receive, view, listen to, record by any means or acquire the substance or purport of the service or part thereof supplied by a licensee or service provider without the agreement of the licensee or service provider».
'Encrypted programme transmission' means a transmission in a form «whereby the aural or visual characteristics (or both) are modified or altered for the purpose of preventing the unauthorised reception of such transmission by persons without authorised equipment which is designed to eliminate the effects of such modification or alteration».
Irish broadcasting law does not directly address the unauthorised circumvention of technological measures, but rather, in more general terms, the unauthorised interception of services. It is not even necessary that services are encrypted in order to deserve protection. Prohibited are acts of unauthorised interception of services as well as preparatory activities for such acts. In this context, interception is understood in a broad sense not only as unauthorised reception but also as forms of exploitation of programmes, such as recording or acquiring the substance or purport of the service.
In detail, prohibited are the (individual) act of
unauthorised interception as well as preparatory or auxiliary activities. In
particular, it is unlawful to:
- intercept the service
- suffer or permit or do any other thing that enables such interception by any
person
- possess, manufacture, assemble, import, supply or offer to supply any
equipment which is designed or adapted to be used for the purpose of enabling
such interception by any person, or
- publish information with the intention of assisting or enabling any person to
intercept a service
- knowingly install or attempt to install or maintain any equipment which is
capable of being used or designed or adapted to be used for the purpose of
enabling such interception by any person. Furthermore, it is prohibited to
- wilfully damage or attempt to damage a system or part of a system operated by
a licensee or service provider.
It is not important whether activities are carried out for commercial or private purposes.
The Minister for Communications may authorise one of his officers to perform acts as described above, probably for such reasons of public interest as public security.
The regulation contains quite extensive provisions concerning enforcement. Courts can provide the police with search warrants in order that they may enter, by force if necessary, and search places where illicit equipment is suspected to be present. Any person impeding the work of the police shall be guilty of an offence.
The Broadcasting Act contains specific provisions concerning the onus of proof, in order to facilitate law enforcement in the courts. Firstly, the owner of illicit devices is considered an accessory unless he/she can prove that he/she did not knowingly permit an offence. Secondly, the defendant bears the onus of proof in demonstrating the existence of an authorisation to intercept a service.
Any person found guilty of an offence can be liable to a fine not exceeding Pounds 1000 (Euro 1270) or imprisonment not exceeding three months in case of summary conviction, and Pounds 20.000 (Euro 25395) / 2 years in case of conviction on indictment.
Courts may order the forfeiture of equipment.
Licensees or service providers who have suffered, suffer or may suffer damages may apply for an order of the High Court of Circuit to restrain the defendant from carrying on or attempting to carry on the infringing activity as well as for damages or an account of profit.
No case law has been reported on the application of the reported provisions on providers of free CA services or CA devices used for non-remuneration reasons.
The responsible department is currently examining ways in which the CA Directive might be given effect. One option is to make an order under Section 16 of the Broadcasting Act, 1990. It is not yet clear whether Ireland will exceed the scope of the CA Directive by extending protection to free CA services provided on the basis of access control – the issue is still under discussion.
As to the use of CA and third parties interests possibly concerned, the draft proposal for a new Irish Broadcasting Bill 1999 contains certain provision on Electronic Program Guides (EPGs). The person who makes available EPGs, may be obliged to ensure that EPGs may easily be used by a member of the public to access information in relation to the schedules of programme material. EPGs shall not be designed in such a way as to result in a user of the guide experiencing difficulty in accessing the programme material supplied (Section 12 (5), (6)). Furthermore, the preparation of guidelines is foreseen with respect to the format in which the information in relation to schedules of programme material provided by electronic programme guides may be presented (Section 13).
The draft Broadcasting Act 1999 also includes a provision on the further free accessibility of the national public television and broadcasting service. It apparently shall have the character of a public service and continues to be a free-to-air service and be made available, insofar as it is reasonably practicable, to the whole community on the island of Ireland (Section 24 (1)).
Italy has already adopted several specific laws on the legal protection of CA services, which protect access controlled broadcasting services probably irrespective of whether they are provided against direct remuneration or not. However, the existing legislation focuses on the protection of services which are provided against remuneration.
Title: Article 11-1 bis Law No. 422
Date: 1993
Source: Gazetta Ufficiale della Republica Italiana, 5 November 1993
Classification: Broadcasting law
Only television broadcasting services are protected; radio broadcasting and IS services are not protected.
The law covers encoded broadcasting services in general, probably without distinguishing between pay-TV and other services. Thus, providers of free CA services could also claim protection under this provision.
Protection is not conditional on the reason the technology serve. The underlying principles under the provision have been reported to cover remuneration interests, protection of intellectual property rights, economic interests as well as other interests such as the protection of minors.
Prohibited activities are:
- the duplication of encoded transmissions (i.e. signal theft)
- the importation, distribution, sale, possession for commercial purposes,
rental of unauthorised means intended solely to allow or to facilitate arbitrary
removal or circumvention of devices applied for the protection of encoded
transmissions.
Offences can be punished by imprisonment and/or monetary fines up to ITL 6.000.000 (Euro 3099) .
Aggrieved parties may bring a civil action.
No specific case law on the circumvention of free CA services has been reported. However, there has been a case dealing with multi-decoders, i.e. the CMR case. CMR was manufacturing illegal decoders and devices capable of 'cloning' legal decoders. CMR claimed that their decoding devices were not intended to provide unauthorised access to Télépiu, but to a free Dutch satellite service which had been encrypted for copyright reasons. The defendants claimed that their devices were programmed to decrypt the programmes of the Dutch pay-TV channels, which were transmitting their analogue signal via satellite using the same decoding system utilised by Tele+ (i.e. Irdeto). According to CMR, it was mere coincidence that Tele+ could be decoded using their device. The case was never finally decided. After Télépiu appealed to the public prosecutor in Rome, the case was turned down due to lack of evidence.
There are plans to adopt additional legislation on the protection of CA in order to implement the provisions of the CAD into Italian law. This regulation is the Draft Regulation of the Autorita per le Garanzie nele Comunicazioni on the definition of a common decoder standard (Schema concernente la determinazione degli standard del decodificatori e le norme per la ricezione del programmi televisivi ad accesso condizionato, non definitivo; broadcasting law).
Probably, the provision will protect only broadcasting services and services provided against payment ('servizi televisivi numerici a pagamento'). The provision prohibits not only the distribution, sale, rental and possession of decoding devices, but also their manufacture.
To a certain degree, the draft also takes the interests of third parties into account. In particular, the provisions seem to exceed what is regulated in the Standards Directive. According to Article 2 of the draft, the providers of access control who provide digital television programmes on their own shall guarantee that it is possible to receive with the same decoder all other broadcasting services which are based on access control and provided by other service providers (Article 2 of the proposal).
Providers of CA devices may be obliged to provide consumers with sufficient information concerning which broadcasting services (also those from competing providers) can and which cannot be received via a particular device (e.g. a set-top box). In addition, devices must be equipped with a programming help function enabling the user to request information about the distributor of a service and the content of a specific digital programme (Article 5 of the draft).
The draft also includes specific provisions on EPGs and APIs. EPGs must contain correct information on all offers (also those from competing service providers) and be open to all operators on fair, reasonable conditions. In addition, operators of CA devices must ensure that the APIs they have implemented are open to all service providers. Moreover, providers of CA devices are obliged to assist other service providers with the implementation of a particular API.
In Luxembourg, there is no specific legislation on the legal protection of CA devices. To a certain extent, this is because at the moment there are no encrypted services specifically intended for the population of Luxembourg. Most programmes are supplied by neighbouring countries.
No cases have been reported in which a court had to judge a case concerning the circumvention of (free or pay) CA services. If such a case were to arise, the protection of CA services could probably be found in general laws, particularly the Civil and the Penal Code. In the Civil Code, the obvious provision would be Article 1382. This is a general tort law provision, i.e. an obligation to compensate for any harm done to another person. Civil proceedings eventually may only be brought against persons who act for commercial purposes.
In the penal law, reference can be made to the law of July 15, 1993 (La Loi du 15 juillet 1993 tendant à renforcer la lutte contre la criminalité économique et la fraude informatique), the objective of which is to reinforce the fight against economic crime and information fraud and provides a modification of the penal law.
Luxembourg is currently preparing to implement the provisions of the CAD into national law. At the time of writing, this draft law has not been published. It is expected that the new law will be presented to parliament before the summer break 2000.
As far as can be judged, the government intends to transform the Directive in its present form without extending its scope to free CA services.
In Portugal, there are no specific regulations on the legal protection of any CA devices, irrespective of what reason they serve.
Two laws relevant to the protection of personal data may be
applicable here:
Law No. 76/98 of 28 October (implementation of the 95/46/EC Directive, 24
October 1995), and
Law No. 69/98 of 28 October (implementation of the 97/66/EC Directive, 15
December 1997).
It has not been reported yet if and how Portugal will give effect to the CA Directive.
There is no specific legislation on the legal protection of CA-based (free or pay) services. However, there are plans to introduce legislation in order to implement the CAD. When implementing the Directive into national law, Spain plans to adhere to its precise wording. Thus, free CA services which use CA will not be protected.
In case of the unauthorised circumvention of free CA services which use CA, the provisions of the Spanish Civil Code and Penal Code (protection of property) may be applicable. The Industrial and Intellectual Property Law may also provide for some protection.
However, no cases where these provisions were applied during legal proceedings which were initialised by providers of access controlled free CA services are known.
Spain is drafting a new law in order to implement the CAD into Spanish law. The regulation is expected to focus exclusively on the protection of CA in a situation where access control is applied to serve the remuneration interests of service providers; it will not provide for the legal protection of access control mechanisms which serve other interests. The issue of protecting free CA services which use CA devices, apparently, has not yet been discussed in Spain. The proposed new law exceeds the CAD in so far as there are plans to prohibit the possession of decoding devices for personal purposes outside the home (possession inside the home will remain lawful).
In Sweden, only legislation on the legal protection of encrypted pay radio and television broadcasting services exists. The relevant provisions were implemented into Swedish penal law in December 1993.
Title: Lag (1993:1367) om förbud beträffende viss avkodningsutrustning
Date: December 1993
Source: SFS Nr. 1993: 1367
Classification: Criminal Law (separate law)
Protected are radio and television broadcasting services.
Services are protected only when provided against remuneration.
The law was reported to focus on the protection of remuneration reasons, security and intellectual property rights. Is has been argued that it is also an overall purpose of the Act to protect the economic interests of service providers in general, i.e. also those of providers of free CA services which have a certain economic value. However, this interpretation cannot be explicitly concluded from the regulation. Furthermore, particularly in the field of criminal law, generally only an interpretation which is as literal as possible is considered appropriate.
The manufacture, sale, rental, installation and maintenance of decoding devices for commercial purposes are prohibited.
The Swedish regulation does not take into account the interests of third parties.
Violations can be sanctioned with a monetary fine and/or prison sentence up to 6 months.
Courts may order seizure of any object of offence (or value thereof) and of profit, if not obviously unreasonable. Seizure of means is possible for reasons of prevention or other specific reasons.
Civil proceedings can be held parallel to a criminal case, or separate. There is a right to claim damages, which have been proven. It is unclear who may start proceedings.
The Swedish Act on Copyright in Literary and Artistic Works and the Tort Liability Act may be applicable.
No cases have been reported in which providers of free CA services claimed legal protection against piracy under general laws. The same applies to the specific provisions on the protection of pay services.
There are plans to adopt a new Swedish Conditional Access Act (Regeringens proposition 1999/2000: 49 Utökat skydd för kodade tjänster). The proposed act will be in the field of criminal law. The recent proposal, however, does not take into consideration the legal protection of CA devices where they are used by free CA services or for non-remuneration reasons. The proposed act concentrates on protecting the remuneration interests of the providers of pay services. Unlike the previous law, this act will also take into account IS services and will extend the catalogue of unlawful activities to cover the activities protected under the CAD (except the use of commercial communications to promote decoding devices).
Under the proposed bill, parties who deliberately breach the provisions of the new Conditional Access Act will be obliged to pay compensation for the use of the service as well as for the additional economic damage the violation has led to. Third parties (such as rightholders) may claim compensation on the grounds of the Swedish Act on Copyright in Literary and Artistic Works, as well as on the Tort Liability Act.
In the Netherlands, specific provisions on the legal protection of CA services are embodied in the Penal Code, primarily in the Law on Computer Criminality (Wet Computercriminaliteit), which was drafted in order to adapt the existing provisions of the Penal Code to the electronic environment.
Although protection is not conditional on whether a service is offered against remuneration, the provision applies only to situations in which circumvention has occurred with intent to avoid paying the full price for the service.
The Dutch provision is an example of a national regulation in which the term 'remuneration' could be interpreted in a broader sense so as to also cover non-direct remuneration interests, such as the provision of general license fees and, by doing so, also to address public broadcasters.
Title: Article 48 and 326c Wetboek van Strafrecht (WvS; Penal Code)
Date: December 1992
Source: Stb. 1993, 33 (Law on Computer Criminality)
Classification: Criminal law
Remarks: The provision originates from Article 50.3 Wet op de Telecommunicatievoorzieningen (Law on Telecommunications)
Article 326c WvS protects telecommunication services (including broadcasting) and IS services. The provision covers telecommunications services in general, since it does not explicitly state that a service must use encryption or another form of access control in order to be protected.
Protection is not explicitly conditional on whether the signal is provided against remuneration in the sense as used in this study. From the wording of the provision it can be concluded that the service should require at least some form of remuneration from the audience in order to be worthy of protection (which is not the case with e.g. a private homepage or a voluntary transmission). Thus, the provision could also cover cases in which a person wants to receive the programmes of a public broadcaster without having to pay the general license fee. However, it is questionable whether the provision applies to broadcasters financed by commercial advertisements where no financial contribution is necessary in order to receive the programme.
It should be noted, however, that due to the recent amendment of the Dutch Broadcasting Law (Media Wet), from the beginning of the year 2000, license fees will no longer be charged. This may mean that public broadcasters will no longer be able to claim protection under the provisions of Article 326 c WvS.
Article 326c WvS protects the remuneration interests of the service provider in a broader sense.
It is prohibited to make use, through a technical intervention or with the help of false signals, of a service which is offered to the public by way of telecommunications, with intent not to pay the full price (Article 326c Section 1). In other words, protection is conditional on the existence of malicious intent not to pay for the service.
The wording of Section 1 is quite broad. It covers not only the unauthorised use of illicit decoding devices (irrespective of whether this is software or hardware, passwords, keys or any other information), but also all sorts of technical means, such as technical reception devices. This is because not only encrypted signals but also unencrypted signals are subject to protection.
It should be noted that Section 1 addresses not the use of illicit devices or unauthorised access itself, but the use of a service with intent not to pay the remuneration due.
Under Article 48 WvS, accessories to a concrete offence (such as those who produce decoding devices, irrespective of whether such production was for commercial purposes) may be punishable.
Section 2 Article 326c focuses on the manufacture of illicit decoders in general. According to Section 2, it is unlawful to deliberately offer in public for distribution, have available with intent to distribute or import into the Netherlands, or manufacture or store for financial gain, an object or data apparently intended for violating the provisions of Section 1.
There are no plans to implement into Dutch law a specific provision to directly take into account the interests of third parties as far as access controlled services are concerned. Article 2 Section 1 Telecommunicatie Wet (Telecommunication Law), however, stipulates that those who want to offer a CA device must register. This gives OPTA (Onafhankelijke Post- en Telecommunicatie Autoriteit – Independ Authority for Post and Telecommunications) the possibility to check whether the offered service complies with existing laws. OPTA's main task is to supervise the provisions which implement the Standard Directive into Dutch law.
Offences against the provisions of Article 326c WvS can be punished with prison sentences up to 3 years and/or monetary fines up to Dfl 100.000 (Euro 45378). If an offence was performed professionally the judge may impose a longer prison sentence or a higher fine.
In addition, a court may order the seizure of goods, publication of the sentence and expulsion from the occupational field in which the offence took place. Profits can also be seized.
Additional provisions which may be applicable to circumventing activities are embodied in Article 161 sexies (unauthorised circumvention of electronic protection measures). In addition, civil proceedings can be brought on the basis of Article 6:126 Burgerlijk Wetboek (Civil Code), which deals with uncompetitive behaviour.
No cases have been reported on the circumvention of free CA services which use CA or the circumvention of CA used for non-remuneration reasons.
There are presently no plans to draft additional legislation on the legal protection of CA, since it is claimed that the existing provisions satisfy the requirements of the CAD.
In the UK, specific legislation on the legal protection of CA techniques is embodied in Articles 297-299 Copyright, Designs and Patents Act 1988 (CDPA) as amended by Article 140 Broadcasting Act 1996 and Article 179 Broadcasting Act 1990. The law, possibly, could be interpreted to also cover public broadcasting services using CA devices.
Title: Sections 297A and 298 CDPA as amended by the 1990 and the 1996 Broadcasting Act
Date: 1996
Classification: Copyright act
Remarks: Under UK copyright law, broadcasters are considered first owners of copyright in the content of the programmes
The Act protects television and radio broadcasting services, as well as cable and probably IS services in as far as these services are directed at the public. This is due to a broad definition of broadcasting as «any transmission … of visual images, sounds or other information» (Section 6 (1b) CDPA).
Under the Act, only unauthorised circumvention with the intent «to avoid payment of any charge» is prohibited.
In this context, 'unauthorised' in relation to a decoder means «to enable encrypted transmissions to be viewed in decoded form without payment of the fee (however imposed) the person making the transmission, or on whose behalf it is made, charges for viewing these transmissions, or viewing any service of which they form part» (Section 179 Broadcasting Act 1990, which was inserted as Section 297A in the CDPA).
Consequently, this provision could be interpreted in a broad sense to include the fraudulent reception of public, fee-based, broadcasting programmes (Section 297 CDPA).
Under UK law, two reasons to use CA are protected, i.e. to ensure remuneration interests and to protect copyrights.
Under Sections 297A and 298 CDPA, the commercial manufacture, importation and commercial promotion and advertising of unauthorised decoders is unlawful. The same applies to sale and hire, as well as to offering and exposing for sale and hire.
While personal possession per se is not unlawful in the UK, unauthorised reception of an encrypted service by an individual with the intent to avoid payment is an offence (Section 297 CDPA).
Violations of the Act are subject to criminal penalties (Section 297A CDPA), i.e. fines up to Pound 5000 and/or imprisonment. In case of innocent infringements, courts may reduce the hight/lenght of sanctions.
General UK legislation enables courts to order the confiscation of the proceeds of crime if the criminal offence was a serious one.
In addition, civil remedies are available; these are the same as those which apply in the case of copyright infringements, and provide for damages, injunctions and compensation for loss of profit.
The UK law grants the right to initiate proceedings to any person who is responsible for the content of a programme that has been received without authorisation or who transmits the broadcast while being at least responsible for the content. This means that any service provider - even if it did not participate in the process of making a programme - may claim rights.
The UK offers protection against the unauthorised reception of services transmitted from a state other than the UK, under the condition that the foreign service provider obtains an order from the Ministry of National Heritage (Section 299).
No case law dealing with the unauthorised circumvention of programmes of providers of free CA services (e.g. public broadcasters) has been reported.
There are plans to adopt additional legislation on the legal protection of CA devices. The Conditional Access (Unauthorised Decoders) Regulation 2000 (which will come into force on 28 May 2000) extends the list of unlawful activities under the CDPA to include possession, installation, maintenance or replacement for commercial purposes of an illicit device, and will also require an extension of the protection afforded to include services transmitted from any place within the EU.
Also under the new Conditional Access Regulation 2000, the term 'unauthorised' in relation to decoders means «the decoder will enable an encrypted transmission to be accessed in an intelligible form without payment of the fee (however imposed) which the person making the transmission, or on whose behalf it is made, charges for accessing the transmission, or any service of which it forms part, or that the decoder enables the circumvention of any CA technology related to the transmission or service».
The term 'however imposed' indicates that the payment requirement in this context has to be interpreted in a broad sense, thus probably also covering public broadcasting programmes which are provided against payment of a general license fee.
In the explanatory note to the draft regulation, it is furthermore mentioned that extending the CAD to cover non-directly remunerated services was discussed. Also during the drafting process of the new regulation, the issue of free CA services which use CA was paid attention to. It was decided, however, to adhere for the time being to the exact wording of the Directive.
In Australia, there are no specific provisions on the legal protection of CA services. However, such legislation is planned. The Copyright Amendment (Digital Agenda) Bill 1999 - which was introduced into the House of Representatives on 2 September 1999 - seeks to establish a number of very detailed provisions on the legal protection of CA devices. The proposed provisions can be subdivided into the protection of technological measures that serve copyright reasons and - similar to the UK approach - the protection of technological measures used by broadcasters for remuneration reasons. [14] The latter provisions focus exclusively on the protection of directly remunerated broadcasting services.
Title: Articles 10(1), 116(1), 116A, D, 132 (5B-L), 132 (6B-C), 135AL, 135AN, 135AS, AT, AU of the Copyright Amendment (Digital Agenda) Bill 1999, No.[…],1999 - A Bill for an Act to amend the Copyright Act 1968 and for related purposes
Date: Presented to the House of Parliament in September 1999
Classification: Copyright law
Remarks: At the time of writing, the bill is still pending
Under Article 135AL subsq., subscription broadcasters are protected who make an encoded television or radio broadcast.
Free broadcasts provided on the basis of the same CA technology are, per definition, not considered encoded broadcasts in the sense of Article 135 AL and, thus, not included.
Article 135(AS, AT, AU) does not distinguish between the different reasons a technological measure may serve, as long as the technology is used by a subscription broadcaster, i.e. pay-TV broadcaster.
A 'broadcast decoding device' is defined as «a device (including a computer program) that is designed or adapted to enable a person to gain access to an encoded broadcast without the authorisation of the subscription broadcaster by circumventing, or facilitating the circumvention of, the technical means or arrangements that protect access in an intelligible form to the broadcast» (Article 135 AL).
'Encoded broadcast' is in this context defined as «a broadcast a) delivered by a broadcasting service that is made available only to persons who have the prior authorisation of the subscription broadcaster and only on payment by such persons of subscription fees; and b) access to which in an intelligible form is protected by a technical measure or arrangement (including a computer program)» (Article 135 AL).
'Subscription broadcaster' means «a person who makes an encoded broadcast» (Article 135 AL).
Article 116A addresses works that are subject to protection by an «effective technological measure».
Free CA services (probably irrespective of those are broadcasting or IS services) may be protected where they use technological measures to protect own copyrights in the content of a service. A remuneration interest is not necessary to be protection worthy under Article 116 A.
Article 116A protects only copyright reasons.
'Circumventing device' is «a device (including a computer program) that has only a limited commercially significant purpose or use, or no such purpose or use other than the circumvention, or facilitating the circumvention, of an effective technological protection measure (i.e. either limited commercially significant purpose or specifically directed upon circumvention of protection)» (Article 4 Subsection 10 (1)).
'Circumvention service' means «a service, the performance of which has only a limited commercially significant purpose, or no such purpose or use, other than the circumvention, or facilitating the circumvention, of an effective technological protection measure» (Article 5 Subsection 10 (1)).
'Effective technological measure' means «a device or product, or a component incorporated into a process, that is designed to prevent or inhibit the infringement of copyright subsisting in a work or other subject matter if, in the ordinary course of its operation, access to the work or other subject matter protected by measures is available solely by use of an access code or process (including decryption, unscrambling or other transformation of the work or other subject matter) with the authority of the owner of licensee of the copyright in a work or other subject matter» (Article 8 Subsection 10 (1)).
The catalogue of unlawful activities is similar for both categories of devices (protecting copyright/remuneration reasons) and focuses exclusively on preparatory activities to circumvent technological measures for commercial purposes.
The regulations on broadcasters clearly focus on the protection of CA devices, whereas the definition of technological measures to protect copyrights is broader and not specifically focussed on CA techniques. However, under Article 116A protection is conditional on the effectiveness of a device. In this context, particularly CA techniques are considered to be effective (see definition above) and thus, probably fall under Article 116 A.
It is prohibited to:
- make a circumvention device capable of circumventing or facilitating
circumvention
- sell or let for hire
- distribute for the purpose of trade or any other purpose that will affect
prejudicially the interests of the copyright holder/broadcaster
- exhibit such a circumvention device in public by way of trade
- import a circumvention device.
The Australian regulations also prohibit the offering of circumventing services, and the making available online of a broadcast device to an extent that will prejudicially affect the subscription broadcaster.
In addition, an activity is not considered an offence unless it was performed intentionally («… the person knew, or ought reasonably to have known, that the device would be used to enable a person to gain access to an encoded broadcast without the authorisation of the subscription broadcaster»).
No distinction is made between unauthorised activities for commercial purposes and those for private purposes.
Australia has adopted several provisions in order to maintain the balance between protecting the interests of third parties and the use of CA devices, particularly where the public interest (law enforcement, national security) and the exercise of general exceptions as provided under copyright law are concerned. The provisions also allow for certain exceptions.
Under the Australian law, the prohibitions on the production and marketing of decoding devices do not apply where purposes of law enforcement or the public interest are at stake (Article 135 AN Subsection 2: «This Article does not apply in relation to anything lawfully done for the purpose of law enforcement or national security by or on behalf of: a) the Commonwealth or a State or territory; or b) an authority of the Commonwealth or of a State or Territory»).
Additionally, in the case of the protection of CA devices used for copyright reasons, the manufacture, distribution, etc. of decoding devices is not unlawful under the condition that:
a) the person supplying decoding devices or services has signed a declaration stating that the device or service is to be used only for a permitted purpose while indicating at the same time what purpose this is, or
b) if the construction or import of a circumvention device is performed for only a permitted purpose or for the purpose of enabling a person to supply the device or to supply a circumventing device for use only for a permitted purpose (Article 116A 3 and 4).
In this context, it is a 'permitted purpose' if the device or service is used for the purpose of performing an act comprised in the copyright in a work or other subject matter and that such performance is in accordance with the copyright.
If an infringing activity under Article 135 AS (CA used by providers of pay services) is carried out, monetary fines of not more than 550 penalty units and/or imprisonment for not longer than 5 years can be imposed, whereas no criminal sanctions are foreseen in the case of circumventing CA devices used to protect copyrights (Article 116D).
For both variants of infringing activities, the Act provides for civil remedies, such as injunction, damages as well as compensation for loss of profit or additional damages.
In the case of CA techniques applied for copyright reasons, an action can be brought not only by the rightholder but also by the licensee of the copyright. This is of particular importance in cases where e.g. a service provider tries to combat circumventing activities against the broadcast service, but has no own intellectual property rights in the content of the service.
Secondly, the Australian law takes into account the sometimes difficult situation regarding burden of proof in cases of infringing activities. According to Article 135AS Subsection 3, «the only burden of proof that a defendant bears … is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter in question exists.»
No case law has been reported on acts of circumvention of free CA services provided on the basis of CA techniques.
In Canada, specific legislation on the legal protection of CA devices is embodied in two laws, i.e. the Radiocommunications Act (1.) and the Penal Code (2.). Whereas unauthorised decoding and certain preparatory activities are subject to the Radiocommunications Act, unauthorised reception is covered by Article 326 Criminal Code.
Title: Article 9 Radiocommunications Act L.R.C., c. R-2
Date: 1985
Source: http://canada.justice.gc.ca/FTP/EN/Laws/Chap/R/R-2.txt
Classification: Telecommunications law
Encrypted subscription television or radio broadcasting signals are protected, but IS services are not. In this context, 'encrypted' is broadly defined as «treated electronically or otherwise for the purpose of preventing intelligible reception». Thus, the definition does not focus on specific techniques, such as encryption techniques.
Protected are only such services which can be received upon payment of a subscription fee or other charge. [15] The notion of «or … against … other charge» could be interpreted in a way to also cover services which do not require a direct remuneration, such as public broadcasting services (payment of an indirect licence fee).
Protection is not conditional on the reason it serves. The Radiocommunications Act does not focus expressly on the specific reason why the technology is protected (such as to ensure remuneration interests).
The general interests which underlie the Radiocommunications Act are - apart from ensuring remuneration interests - the protection of data and communication, intellectual property rights, and the protection of the economic interests of service providers, such as targeting markets, collecting information, controlling access to content, etc.
'Encrypted' means «treated electronically or otherwise for the purpose of preventing intelligible reception».
'Subscription programming signal' means «Radiocommunication that is intended for reception either directly or indirectly by the public in Canada or elsewhere on payment of a subscription fee or other charge» (Article 2 Radiocommunications Act).
Under Article 9 Radiocommunications Act, it is illegal to:
- decode a protected signal without authorisation from the service provider
(Article 9 Section 1c)
- operate a radio apparatus so as to receive signals which have been decoded
without authorisation (Article 9 Section 1d)
- retransmit to the public signals which have been decoded without authorisation
(Article 9 Section 9c)
- without lawful excuse, manufacture, import, distribute, lease, offer for sale,
sell, install, operate or possess any equipment or device which has been used or
is intended to be used to decode programming signals without authorisation
(Article 10 Section 1b).
Article 9 does not distinguish between infringements made for private purposes and those made for commercial purposes.
The Radiocommunication Law foresees certain exceptions from the prohibition to decode with regard to the availability of information. Under Article 10 Section 2.3, it is stated that «No person who decodes an encrypted subscription programming signal in contravention of paragraph 9(1)(c) shall be convicted of an offence under that paragraph if the lawful distributor had the lawful right to make the signal available, on payment of a subscription fee or other charge, to persons in the area where the signal was decoded but had not made the signal readily available to those persons.» In other words, in a situation where persons in this area could not access a program even if they were willing to pay the fee because the broadcaster fails to make a programme available, those persons are apparently entitled to decode the signal themselves.
This exception does not apply to the ban on preparatory activities, such as the manufacture, import, distribution, lease, offer for sale or sale of any decoding equipment or device or component thereof (Article 10 Section 2.4).
Offences against the mentioned provisions are considered an offence and can be punished upon summary conviction. Sanctions vary depending on whether the offence was committed by an individual or a corporation (higher sanctions for the latter). Furthermore, in case of continuous offences, a separate fine will be imposed for each day on which the offence is committed or continued.
An individual who unlawfully manufactures, imports, leases, offers for sale, sells, installs, modifies, operates or possesses a decoding device that has been used or is intended for use in order to decode without authorisation, is liable to a fine not exceeding § 5000 or imprisonment for a term not exceeding 1 year, or to both; if a corporation commits such an offence, the fine can be as much as $ 25.000.
An individual who decodes encrypted signals without authorisation or operates a radio apparatus in order to receive such decoded signals is liable to a fine not exceeding $ 10.000 or to imprisonment for a term not exceeding 6 months, or to both; if a corporation commits such an offence, the fine can be as much as $ 25.000.
An individual who retransmits to the public unlawfully decoded programming signals is liable to a fine not exceeding C$ 20.000 or to imprisonment for a term not exceeding 1 year, or to both; if a corporation commits such an offence, the fine can be as much as $ 200.000 (Article 10 Sections 1, 2, 3).
In addition, a person who has suffered loss or damage as a result of the offence may sue in any court with competent jurisdiction for damages from the person who engaged in the infringing conduct; the court may grant an injunction or order the infringer to pay compensation, or impose any other remedy it considers appropriate. In this context, the Federal Court is the court with competent jurisdiction. A monetary judgement may not exceed one thousand dollars if the person is an individual and did not commit the offence for commercial gain (Article 18 Section 1).
Under Article 18 Section 1, an action can be brought by any
person who:
- holds an interest in the content of a subscription programming signal by
virtue of copyright
- is authorised by the lawful distributor of a subscription programming signal
to communicate the signal to the public
- holds a broadcasting license, or
- develops, manufactures, supplies or sells encoding or decoding devices.
The record of proceedings of any court in which the person against whom the action is brought was convicted is, in the absence of any evidence to the contrary, proof that that person was engaged in the infringing activity (Article 18 Section 3).
In Section (2.5) of Article 10, it is furthermore stated that no person shall be convicted of an offence if that person exercised all due diligence to prevent the commission of the offence. As a result, this means a reversal of the onus of proof. Potential infringers have to/or are entitled to prove that an offence was not committed intentionally.
No case law relevant to the provisions discussed above has been reported.
Title: Articles 326, 327 Criminal Code
Date: Updated August 1999
Source: http://canada.justice.gc.ca/FTP/EN/Laws/Chap/C/C-46.txt
Classification: Penal law
Remarks: The provision does not focus specifically on services provided on the basis of CA but on signal theft. Article 326 is dealing with signal theft, whereas Article 327 bans certain preparatory activities facilitating signal theft
Articles 326 and 327 protect 'telecommunication'. In this context, telecommunication services are defined broadly as «any transmission, emission or reception of signs, writing images or sounds or intelligence of any nature by wire, radio, visual or other electromagnetic system». Consequently, broadcasting services are included. The same may apply to IS services.
Under the Canadian Penal Code, free CA services are protected against signal theft, but not against preparatory activities. This is since illicit devices as addressed by Article 327 must have been intended to «be used to obtain the use of any telecommunication facility or service without payment of a lawful charge therefor». Whereas Article 326 addresses generally the unlawful obtaining of any telecommunications service irrespective of whether this service is provided against payment or not.
Article 326 (signal theft) is not specifically directed at the protection of any particular reason, whereas Article 327 (preparatory activities, such as the manufacture and distribution of illicit devices) exclusively protects remuneration interests.
Article 326 Criminal Code considers as theft the unauthorised use of protected services. In this context, no distinction is made between unauthorised activities for commercial purposes and those for private purposes.
According to Article 327 Criminal Code, any person who manufactures, sells, possesses or offers for sale devices designed to receive without authorisation and without the payment of a fee, is guilty of an indictable offence.
Offenders are liable to imprisonment for a term not exceeding 2 years. In addition, the law provides for the forfeiture of the infringing devices.
No case law has been reported on acts of circumvention of free CA services provided on the basis of CA techniques.
At the moment, there are no plans to adopt additional legislation on the legal protection of CA services.
Japan has recently adopted a specific provision on the legal protection of CA devices. This new provision - which is part of the Japanese competition law - does not distinguish between signals which are provided against payment and those which are not. Thus, the law also protects the providers of free CA services which use CA devices for non-remuneration interests.
Title: Unfair Competition Act 1998
Date: 1998
Classification: Competition law
Covered are television and radio broadcasting services, but not IS services.
Protection is granted whether or not services are provided against payment.
Protection is not conditional on which reason the technology serves. The general interest behind the law is to protect the economic interests of service providers, such as the targeting of markets, collecting information, controlling access to content, ensuring exclusivity, etc.
Under the Japanese law, the import, distribution, sale and rental of decoding devices is prohibited. In this, the law focuses on activities linked to the process of making decoding devices available. However, neither the manufacture nor the use/possession for private/commercial purposes is covered.
The legislation focuses on commercial activities; private acts of circumvention are not covered.
The Japanese law includes a provision intended to stimulate/not hinder science and technological development. According to Article 11 (1) 7, under certain conditions the distribution or sale of decoding devices is lawful provided said devices are used for experimental purposes.
In addition, protection is restricted to devices which are exclusively used for the purpose of unauthorised circumvention (Article 2 (1) (10) (11).
Monetary fines can be imposed.
In addition, it is possible to apply for injunction.
No case law applying to these provisions is known.
At the moment, there are no plans to adopt additional legislation on this issue.
In the US, legal protection of encrypted broadcasting services is contained in two provisions of the Telecommunications Act 1934 (TCA), as amended by the Telecommunications Act 1996. The original purpose of these provisions was to protect the confidentiality of communication against unauthorised interception. The Federal Communications Commission (FCC) then decided that also television services, particularly pay-TV services, would fall under the TCA (Federal Communications Commission Public Notice, 43 Fed. Reg. 46, 581 (1978)). This decision has been upheld by several courts.
Whereas the underlying idea is to protect, apart from confidentiality reasons, also the use of CA devices for remuneration reasons, the wording of the law does not make protection conditional on the existence of a remuneration interest. Consequently, also free CA services which use CA devices may be protected.
Further provisions on the legal protection of the use of CA devices are implemented in Section 1201 (a) Digital Millennium Copyright Act 1998 (DMCA). This provision was adopted in the framework of the implementation of Article 11 WCT and Article 18 WPPT. Similar to the WCT and WPPT, however, Article 1201 (a) does not deal with the protection of the rights of broadcasting organisations and other service providers, but only those of rightholders, performers and phonogram producers. The DMCA includes a number of exceptions which are particularly focused on the use of CA devices and certain third parties interests.
Title: Telecommunications Act 1934, as amended by Telecommunications Act 1996
Date: 1996
Source: Pub. LA. No. 104-104, 110 Stat. 56 (1996), see also: http://www.fcc.gov/telecom.html
Classification: Telecommunications law
Article 633 Telecommunications Act 1934 protects any communications services offered over a cable system, including television broadcasting services. In addition, the provision is sufficiently broad to probably also cover IS services. It is not explicitly required that protected services are based on any form of access control. However, also access controlled services fall under the provision.
Protection is not conditional on the existence of a remuneration interest. Consequently, also free CA services may claim protection.
Originally, the underlying reasoning for the provision was to protect the confidentiality of communication; later, also remuneration interests were considered subject to protection.
Nevertheless, according to the wording of Section 633, protection is not conditional on the existence of a remuneration or other particular interests. Thus, Article 633 may be applied in situations where CA devices serve other reasons, such as the protection of minors (see below).
«Assist in intercepting or receiving» shall include the manufacture or distribution of equipment intended by the manufacturer or distributor (as the case may be) for unauthorised reception of any communications service offered over a cable system in violation of subparagraph (1) (Section 633 (a) (2)).»
Prohibited are the unauthorised act of interception or reception of a protected service as well as assisting in such acts. 'Assisting' includes the «manufacture or distribution of equipment intended by the manufacturer or distributor for unauthorised reception of a protected service» (Section 633 (a) (1)).
Article 633 includes an open clause concerning the protection of general public interests (««unless … as may otherwise be specifically authorised by law»).
Any person who wilfully commits an offence can be fined a maximum of $ 1,000 or be sentenced to imprisonment for not more than 6 months, or both. If the offence was committed for commercial purposes, the fine can be increased to $ 50,000 and the length of imprisonment to 2 years, or both (Section 633 (b) (1, 2)).
Any person aggrieved by a violation may bring a civil action in a US district court or in any other court of competent jurisdiction. The court may grant injunctions and award damages (in case of statutory damages, between $ 250 and $ 10.000' in case of commercial activities, not more than $50.000). Penalties can be reduced if the court finds that an infringer was not aware and had no reasons to believe that he/she was committing a violation.
No case law has been reported on the application of this rule on acts of circumvention of a free access controlled service.
Title: Telecommunications Act 1934, as amended by Telecommunications Act 1996
Date: 1996
Source: Pub. LA. No. 104-104, 110 Stat. 56 (1996)
Classification: Telecommunications law
Protected are any interstate or foreign communication by wire or satellite, including television services. It is not explicitly required that programmes are encrypted, though it can be concluded from the context that encrypted services are included.
Protection is not conditional on the existence of a remuneration interest. Thus, also free CA services which use encryption may fall under this provision.
Originally, the underlying reasoning for the provision was the confidentiality of communication; later, also remuneration interests were considered subject to protection.
The provision, as mentioned, does not explicitly link protection to the existence of a particular interest. Thus, Article 633 may be applied also where CA devices serve other reasons.
'Encrypt' means to «transmit such programming in a form whereby the aural and visual characteristics (or both) are modified or altered for the purpose of preventing the unauthorised reception of such programming by persons without authorised equipment which is designed to eliminate the effects of such modification or alteration».
It is prohibited to intercept, receive, assist in receiving (see definition above), transmit or assist in transmitting protected services, as well as to use such communication for own benefit or the benefit of another not entitled thereto. In addition, it is unlawful to publish the existence, contents, substance, purport, effect or meaning of such services (Section 705 (1)).
Furthermore, it is unlawful to manufacture, assemble, modify, import, export, sell or distribute any electronic, mechanical or any other device or equipment with the knowledge, or with reason to know, that the device or equipment is primarily of assistance in the unauthorised decryption of satellite cable programming or direct-to-home satellite services (Section 705 (4)).
Section 705 (c ) deals with the encryption of public broadcasting and the accessibility of such broadcast to the public. No person shall encrypt or continue to encrypt satellite-delivered programmes included in the National Program Service or the Public Broadcasting Service and intended for public viewing by retransmission by television broadcast stations; unless at least one unencrypted satellite transmission of any programme subject to this subsection is provided; this subsection shall not prohibit additional encrypted satellite transmissions of the same programme.
In other words, it has to be ensured that public service television programmes are accessible to the public in unencrypted form. However, it is allowed to additionally transmit the same programme in encrypted form, e.g. in the framework of a digital programme bouquet.
Infringers can be fined up to $ 2.000 or imprisoned for not more than 6 years ($ 50.000 / 2 years if carried out for commercial purposes). In case of activities in the context of the unauthorised decoder business, higher penalties can be imposed (i.e. up to $ 500.000 / 5 years of imprisonment).
Any person aggrieved by any violation may bring a civil action in a US district court or in any other court of competent jurisdiction. The court may grant injunctions and award damages. Damages can include actual damages suffered as a result of the violation as well as any profits. In case of statutory damages, fines can range from $ 1,000 to $ 10,000 (and up to $ 100,000 if the infringement was carried out for commercial purposes). Where courts find that the violator was not aware and had no reason to believe that his/her act constitutes a violation, damages may be reduced to no less than $ 250.
The Telecommunications Act also includes obligations to scramble certain programmes or channels. For example, upon request by a cable service subscriber, a cable operator shall, without charge, fully scramble or otherwise block the programming of each channel in order to prevent persons other than subscribers from receiving it (section 640 (a)).
Another provision applies in respect to the protection of minors. Providers of sexually explicit adult programming shall fully scramble or otherwise block the programme so that only subscribers can receive it (Section 641 (a)).
Title: Digital Millennium Copyright Act (DCMA)
Date: 1998
Source: Publ. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998)
Classification: Copyright law
Remarks: The provisions on the protection of technological measures are included in the WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998, which is part of the DCMA. However, the DCMA does not deal with technological measures as used by broadcasters, since the rights of broadcasters are not subject to either the WCT or the WPPT. The provisions on acts of unauthorised circumvention under Section 1201 (a) DCMA will become effective on 28 October 2000.
Section 1201 DCMA does not address particular services which use technological measures, but focuses on a situation in which technological measures are used by rightholders to protect a work that is subject to copyright protection.
Section 1201 divides technological means into two categories: measures that prevent unauthorised use of a protected work (Section 1201 (b)) and those that prevent unauthorised access to works. The latter measures are dealt with in Section 1201 (a) DCMA and will be described in the following.
Rightholders in the sense of Section 1201 are rightholders, performers and producers of phonograms, not e.g. broadcasting organisations. This is because the provisions implement the WCT and WPPT, while the DCMA does not deal with adequate rights of broadcasting organisations.
The DCMA focuses on the protection of technological measures used for reasons of copyright protection.
'Circumvention of a technological measure' means to «descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measures, without the authority of the copyright owner».
A technological measure «effectively controls access to a work» if the measure in the ordinary course of its operation requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
Prohibited are both the act of circumvention of CA devices as
well as certain preparatory activities. It is illegal to manufacture, import,
offer to the public, provide or otherwise traffic illicit devices which are:
- primarily designed or produced for the purpose of circumventing,
- have only limited commercially significance or a use other than to circumvent,
- are marketed for use in circumventing.
The act of circumvention shall not be unlawful if users of protected works are adversely affected in their ability to make non-infringing uses of that work.
The prohibitions contained in Section 1201 (a) are subject to a number of exceptions which deal specifically with the implementation of CA devices. The broadest of these exceptions, as contained in Section 1201 (a) (1) (B) (E), establishes an ongoing administrative rule-making procedure to evaluate the impact of the prohibition against the act of circumventing such access control measures.
Six additional exceptions are as follows:
1. Non-profit libraries, archives and educational institutions (Section 1201 (d)). The prohibition on the act of circumvention of access control measures is subject to an exception that permits non-profit libraries, archives and educational institutions to circumvent solely for the purpose of making a good-faith determination as to whether they wish to obtain authorised access to the work.
Reverse engineering (Section 1201 (f)). This exception permits circumvention and the development of technological means for such circumvention by a person who has lawfully obtained a right to use a copy of a computer program for the sole purpose of identifying and analysing elements of the program necessary to achieve interoperability with other programs, to the extent that such acts are permitted under copyright law.
Encryption research (Section 1201 (g)). An exception for encryption research permits circumvention of access control measures and the development of the technological means to do so, in order to identify the flaws in and vulnerabilities of encryption technologies.
Protection of minors (Section 1201 (h)). This exception allows a court when applying the prohibition to a component or part to consider the necessity for its incorporation in technology that prevents access of minors to material on the Internet.
Personal privacy (Section 1201 (i)). This exception permits circumvention if the technological measure or the work it protects is capable of collecting or disseminating [personally identifying information about the online activities of a natural person. = information which identifies a natural person who is carrying out online activities ?]
Security testing (Section 1201 (j)). this exception permits circumvention of access control measures and the development of technological means for such circumvention for the purpose of testing the security of a computer, computer system or computer network, with the authorisation of its owner or operator.
It is a criminal offence to violate Sections 1201 and 1202 wilfully and for purposes of commercial advantage or private financial gain. Under Section 1204, penalties include a fine of up to $ 500.000 or up to 5 years of imprisonment for a first offence, and a fine of up to $ 1.000.000 or up to 10 years of imprisonment for subsequent offences. Interestingly, non-profit libraries, archives and educational institutions are entirely exempt from criminal liability (Section 1204 (b)).
Any person injured by a violation of Section 1201 may bring a civil action in a federal court. Section 1203 gives courts the power to grant a range of equitable and monetary remedies similar to those available under the Copyright Act, including statutory damages. The court may reduce damages in cases of innocent violations, where the violator proves that he/she was not aware and had no reason to believe that his/her acts constituted a violation. Special protection is given to non-profit libraries, archives and educational institutions, which are entitled to a complete remission of damages in these circumstances (Section 1203 (c) ).
Because Article 1201 is relatively new, not much case law exists on this provision. The only case reported does not deal with broadcasting or IS services but with access control applied to DVDs, and therefore has no relevance to the purpose of this study.
[1] See Annex I, Section 1.2.6.
[2] See Annex I, Section 1.2.4.
[3] Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyrights and rights related to copyright applicable to satellite broadcasting and cable retransmission, OJE No. L 248, 06.10.93, p. 15.
[4] See section 5.1.4.
[5] Council Directive 83/189/EEC laying down a procedure for the provision of information in the field of technical standards and regulations, as amended by Directive 94/10/EC, OJE No. L 100, 19.04.1994, p. 60, defines IS services as any service provided at a distance, by electronic means and at the individual request of a service receiver.
[6] See Annex I, Section 1.2.4.
[7] As opposed to e.g. information provided within the framework of a live service, where on the side of the service provider a natural person is involved and deals directly with the request.
[8] Copyright protection of databases is made conditional on the existence of a certain selection or arrangement of the contents of the database which expresses the author's own intellectual creation (Article 1 (2) Database Directive).
[9] E.g. a reproduction right, translation, adaptation, arrangement, distribution of parts or copies of parts of the database to the public, communication to the public, etc.
[10] Note that the copyright protection of databases does not extend to their contents.
[11] See definition technological measures: «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.»(Article 6 (2) Amended Proposal).
[12] «The Telecommunications Administration Centre shall control compliance with this Act and with the provisions and orders issued thereunder» (Article 35 Telecommunications Market Act).
[13] State: 07.03.2000
[14] In addition, the Television Broadcasting Services (Digital Conversion) Act 1998 schedule 4, which is yet to come into force, includes provisions on CA systems. However, since these provisions deal exclusively with standardisation problems, they will be not discussed in this study.
[15] Article 2 – Definitions: «subscription programming signal means radiocommunication that is intended for reception either directly or indirectly by the public in Canada or elsewhere on payment of a subscription fee or other charge».
