Transcript Legal Protection of Copy-protection Mechanisms & Rights

Legal Protection of Copyprotection Mechanisms & Rights
Management Information
Martina Gillen
Law Department, Reading University
[email protected]
&
Gavin Sutter
Institute of Computer & Communications Law, Centre for Commercial Law Studies, Queen Mary,
University of London
[email protected]
ICCL @ CCLS.edu
Introduction
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Copyright in the digital era
– Ease of infringement
– Enforcement problems
– Conceptual challenges to copyright
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Find new ways to protect copyright…
– Copy protection technologies
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Dongles, SDMI, smartcards, encryption
– Access control mechanisms
– Rights management information
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Or abandon it?
– What is the alternative?
ICCL @ CCLS.edu
Legislative Response
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WIPO Treaties 1996
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EU Copyright in the Information Society
Directive
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UK Copyright & Related Rights
Regulations 2003
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US Digital Millennium Copyright Act
ICCL @ CCLS.edu
Protection of Copy-protection
Technologies
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WIPO Copyright Treaty Article 11
– Adequate legal protection& effective remedies against
circumvention
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EU Copyright Directive
– A6(1): adequate legal protection against “circumvention of any
effective technological measures”
– A6(2): prevention of trade in circumvention tools
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Primarily designed…
Marketed as…
Only limited commercially significant other uses
– A6(3): scope
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“designed to prevent or restrict acts…which are not authorised by the
rightholder…”
“…controlled by the rightholders through application of an access
control or protection process…”
ICCL @ CCLS.edu
Protection of Copy-protection
Technologies
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UK Regulations – Regulation 24
– “Circumvention of copyright protection measures”
– Circumvention of copy protection or access control system
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Encryption research exception
– Commercial manufacture & dealing in circumvention tools
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Computer programs
General circumvention of protection measures
“…in the course of a business or otherwise…to such an extent
as to affect prejudicially the copyright owner…”
Exception for law enforcement agencies and intelligence
services
ICCL @ CCLS.edu
Protection of Copy-protection
Technologies
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US Digital Millennium Copyright Act
– Introduction of new Copyright Act S1201
– Section 1201(a)
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Circumvention of “technological measure that effectively controls
access…”
Circumvention tools
– “primarily designed”
– “only limited commercially significant [other] purpose or use…”
– “marketed…for use in circumvention…”
– Section 1201(b)
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Manufacture or trade in tools designed to circumvent “protection
afforded by a technological protection measure that effectively protects
a right of copyright…”
Fair use exemption – clarity problem?
Other exemptions
ICCL @ CCLS.edu
Rights Management Information
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WIPO Copyright Treaty A12
– Removal / alteration of rights management
information
– Distribution of copies where RMI removed /
altered
– What is rights management information?
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Identifies the work / author / rightholder / terms
and conditions / “any number or codes that
represent such information”
ICCL @ CCLS.edu
Rights Management Information
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EU Copyright Directive A7
– Removal / alteration of RMI
– Distribution of copies where RMI removed / altered
– Rights Management Information is…
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“any information provided by rightholders which identifies the
work…, the author or any other rightholder, or information
about the terms and conditions of use of the work or other
subject matter, and any number or codes that represent such
information.”
UK Copyright and Related Rights Regulations 2003
ICCL @ CCLS.edu
Rights Management Information

US Digital Millennium Copyright Act
S1202
– “Integrity of copyright management
information”
Knowing provision of false copyright
management information or distribution / acts
prepatory to distribution
 Intentional removal or alteration of copyright
management information, or distribution of same
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ICCL @ CCLS.edu
Rights Management Information
US DMCA definition of RMI:
“(c) definition – As used in this section, the term ‘copyright management information’ means any of the following
information conveyed in connection with copies of phonorecords of a work or performances or displays of a
work, including in digital form, except that such term does not include any personally identifying information
about a user of a work or of a copy, phonorecord, performance, or display of a work:
(1)
The title and other information identifying the work, including the information set forth on a notice of
copyright.
(2)
The name of, and other identifying information about, the author of a work.
(3)
The name of, and other identifying information about, the copyright owner of the work, including the
information set forth in a notice of copyright.
(4)
With the exception of public performances of works by radio and television broadcast stations, the name of,
and other identifying information about, a performer whose performance is fixed in a work other than an
audiovisual work.
(5)
With the exception of public performances of works by radio and television broadcast stations, in the case of
an audiovisual work, the name of, and other identifying information about, a writer, performer, or director
who is credited in the audiovisual work.
(6)
Terms and conditions for use of the work.
(7)
Identifying numbers or symbols referring to such information or links to such information.
(8)
Such other information as the Register of Copyrights may prescribe by regulation, except that the Register of
Copyrights may not require the provision of any information concerning the user of a copyrighted work.”
ICCL @ CCLS.edu
Exceptions, Limitations &
Penalties
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WIPO Treaty
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EU Directive / UK Regulations
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DMCA
ICCL @ CCLS.edu
Criticisms
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Controversial provisions
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Empowering the rightholder…
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…at the expense of the public domain?
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The US as a “test-lab”: DMCA in action
ICCL @ CCLS.edu
The DMCA in Action: Common
Criticisms
DMCA Section 1201…
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-v- Freedom of Expression & Scientific research
– Dmitry Skylarov (Elcomsoft)
– Felten –v- RIAA
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-v- Fair Use
– ‘Time shifting’
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Realnetworks, Inc –v- Streambox Inc 2000 WL 127311 (WD Wash Jan 18,
2000)
– deCSS
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Bunner
Corley
Universal City Studios –v- Ramirez 111 F Supp 2d 294 (SDNY 2000)
-v- Competition & Innovation
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Sony Computer Entertainment Inc –v- Connectix Corporation 203 F 3d 596
(9th Circuit 2000)
Sony Computer Entertainment America Inc –v- Gamemasters 87 F Supp 2d
976 (ND Cal 1999)
…Time for a change?
ICCL @ CCLS.edu
Problems with Terminology
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Terms like “contract” or “bargain” carry
intellectual associations with them which
do not necessarily reflect the actual nature
and effects of the copyright regime.
ICCL @ CCLS.edu
Examining the history and
purpose of Copyright
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Difficulties of gaining a clear picture because of
fragmented views of copyright history.Multidisciplinary not often interdisciplinary.
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Lawyers;
Printers;
Authors;
Literary theorists;
Marxist theorists;
Post-modern writers; and,
Post-industrial critics.
ICCL @ CCLS.edu
Technological Challenges
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Speaking to creators
– John Perry Barlow
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"Intellectual property law cannot be patched,
retrofitted, or expanded to contain digitized
expression any more than real estate law might be
revised to cover the allocation of broadcasting
spectrum ... Digital technology is detaching
information from the physical plane, where
property law of all sorts has always found
definition'.
ICCL @ CCLS.edu
Review the Copyright
Structure?
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Alternatives
– Copyleft
– Creative Commons
– Technological Controls
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What are the potential underlying interest
balances?
ICCL @ CCLS.edu
Conclusions
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There are problems with existing regimes.
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We now need to ask what values we want
to promote and how best to achieve this?
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Learn form copyright history.