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«International Review of Law, Computers and Technology, forthcoming, 2006 The evolution of anti-circumvention law Ian Brown E-mail: ...»

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International Review of Law, Computers and Technology, forthcoming, 2006

The evolution of anti-circumvention law

Ian Brown

E-mail: I.Brown@cs.ucl.ac.uk

Department of Computer Science,

UCL, Gower Street,

London WC1E 6BT

Countries around the world have since 1996 updated copyright laws to prohibit the

circumvention of “Technological Protection Measures,” technologies that restrict

the use of copyright works with the aim of reducing infringement and enforcing

contractual restrictions. This article traces the legislative and treaty history that lies behind these new legal provisions, and examines their interaction with a wide range of other areas of law: from international exhaustion of rights, through competition law, anti-discrimination measures, regulation of computer security research, constitutional rights to freedom of expression and privacy, and consumer protection measures. The article finds that anti-circumvention law as promoted by United States trade policy has interfered with public policy objectives in all of these areas.

It picks out key themes from the free trade agreements, legislation and jurisprudence of the World Trade Organisation, World Intellectual Property Organisation, United States, European Union member states, and South American, Asian and Australasian nations. There is now a significant movement in treaty negotiations and in legislatures to reduce the scope of anti-circumvention provisions to ensure their compatibility with other important policy objectives.

Introduction The introduction of “anti-circumvention” rules has caused the most significant change in global copyright laws and treaties for decades. The Technological Protection Measures (TPMs) protected by these rules are techniques such as encryption (the scrambling of copyrighted works so they can only be read by licensed users and devices), watermarking (the embedding of information on copyright holders, restrictions on the use of works and the identities of licensed users) and copy restriction that all enforce conditions upon the users of digital works. These techniques have been given legal protection under recent World Intellectual Property Organisation (WIPO) treaties, and it is now illegal in many signatory states for users to circumvent TPMs even for the purpose of exercising legitimate exemptions in copyright law. 1 Where did these legal provisions originate? What caused such a significant evolution in the international copyright system? What are the consequences for other areas of law? This paper looks at the evolution of anti-circumvention provisions, and how they are beginning to interact with a wide range of other public policy issues – touching areas as diverse as freedom of expression,privacy, competition law, academic research and consumer protection.

The paper is not an exhaustive survey, but identifies key themes from nations across five continents. It summarises the public policy process that began in the United Kingdom and United States, moved to WIPO, and from there continued to play out in

-1International Review of Law, Computers and Technology, forthcoming, 2006 the national legal systems of the states around the world that became party to the resulting treaties. It also looks at key differences in how anti-circumvention provisions have been implemented in national law.

While interaction with national law has limited the wide scope of the WIPO obligations, the United States is still pushing similar provisions in other international instruments. This policy evolution is continuing to have a significant impact, not just on copyright law, but on the foundations upon which the global information society of the 21st century is being built.

Provisions in international instruments Legislative pre-history Legal restrictions were applied during the 1980s in the US against the supply of devices that circumvented specific TPMs such as satellite cable encryption systems2 or serial copyright management systems, 3 which restrict copies of digital audio. A similar restriction appeared in the North American Free Trade Agreement.4 The European Union also restricted the supply or commercial possession of “means” of

circumvention of TPMs applied to software:

Article 7 Special measures of protection

1. Without prejudice to the provisions of Articles 4, 5 and 6, Member States shall provide, in accordance with their national legislation, appropriate remedies against a person committing any of the acts listed in subparagraphs (a), (b) and (c) below:

… (c) any act of putting into circulation, or the possession for commercial purposes of, any means the sole intended purpose of which is to facilitate the unauthorized removal or circumvention of any technical device which may have been applied to protect a computer program.5 A more general ban on the supply of devices that could circumvent copy-protection applied to copyright works came in the UK’s Copyright, Designs and Patents Act

1988. In one respect, this went further than later treaties and legislation, by banning

even the publication of information on how to circumvent TPMs:

(2) The person issuing the copies to the public has the same rights against a person who, knowing or having reason to believe that it will be used to make infringing copies— (a) makes, imports, sells or lets for hire, offers or exposes for sale or hire, or advertises for sale or hire, any device or means specifically designed or adapted to circumvent the form of copy-protection employed, or (b) publishes information intended to enable or assist persons to circumvent that form of copy-protection, as a copyright owner has in respect of an infringement of copyright.6 The UK law however did not lead to the inclusion of similar provisions in other states’ copyright laws. Interestingly the restriction on the publication of information

–  –  –

was limited to TPMs applied to software when the UK implemented the EU Copyright Directive in 2003.7 The original WIPO drafts The World Intellectual Property Organisation first became interested in Technological Protection Measures (as they came to be known) during the drafting of their model provisions on copyright law in 1989. WIPO initially proposed that member states

make mandatory the inclusion of TPMs in devices that processed copyright works:

Obligations Concerning Equipment: Protection against Uses Conflicting with a Normal Exploitation of Works (1) If equipment might normally be used for reproduction of works in a manner that, if not authorized by the authors concerned, would conflict with a normal exploitation of such works, the manufacture, importation or sale of such equipment shall be prohibited … unless such equipment is made to conform to technical specifications which prevent its use in such a manner.8 Similar provisions persisted through discussions on new protection for phonogram producers. However, concerns about their impact on competition and innovation led to more focussed anti-circumvention-device provisions modelled on those contained in the UK Copyright, Designs and Patents Act 1988.9 The US National Information Infrastructure White Paper The most significant input into the process that resulted in the WIPO Internet treaties emerged out of a report from President Clinton’s Task Force on the National Information Infrastructure (NII). Their Intellectual Property Working Group, chaired by ex-copyright lobbyist and US Commissioner of Patents and Trademarks Bruce Lehman, spent two years producing a “White Paper” on “Intellectual Property and the National Information Infrastructure” that was published in September 1995.10 This noted that “content providers must be confident that the systems developed to distribute these works will be secure and that works placed on these systems will remain authentic and unaltered. If content providers cannot be assured that they will be able to realize a commercial gain from the sale and use of their products using the

NII, they will have little incentive to use it.” (p.177). Therefore:

the Working Group recommends that the Copyright Act be amended to include a new Chapter 12, which would include a provision to prohibit the importation, manufacture or distribution of any device, product or component incorporated into a device or product, or the provision of any service, the primary purpose or effect of which is to avoid, bypass, remove, deactivate, or otherwise circumvent, without authority of the copyright owner or the law, any process, treatment, mechanism or system which prevents or inhibits the violation of any of the exclusive rights under Section 106. The provision will not eliminate the risk that protection systems will be defeated, but it will reduce it. (p.230) The NII proposals were controversial, to say the least. While popular with copyright owners, the report “was heavily criticized by other groups, including telephone companies, ISPs, computer companies, universities, libraries, and scientific organizations, as to its interpretation of existing law and as to its legislative proposals.”11

-3International Review of Law, Computers and Technology, forthcoming, 2006 While some of the report recommended balance in the design and protection of TPMs, these sections seem to be largely absent in the resulting legislation. “Such security measures must be carefully designed and implemented to ensure that they not only effectively protect the owner's interests in the works but also do not unduly burden use of the work by consumers or compromise their privacy.” (p.191).

With unintended irony, the report also recommends that standards bodies be wary of TPMs that are encumbered with intellectual property rights, and that competition law may be necessary to regulate the exploitation of such intellectual property in de facto standards (p.200) The WIPO Copyright and Performances and Phonograms Treaties Draft legislation was quickly introduced in the US House of Representatives and Senate to implement the recommendations of the NII White Paper (S. 1284 and HR.

2441 of December 1995). However, an outpouring of public criticism led by technology and telecommunications companies, libraries and civil liberties groups prevented these drafts from making any progress in Congress.12,13 Commissioner Lehman, who also headed the US delegation to the WIPO Standing Committee on Copyright and Related Rights (SCCR), saw another route to have the NII recommendations implemented. “It appeared that Administration officials might be able to get in Geneva what they could not get from the U.S. Congress, for the draft treaties published by WIPO in late August 1996 contained language that, if adopted without amendment at the diplomatic conference in December, would have substantially implemented the U.S. digital agenda, albeit with some European gloss.”14 Congress would then have been constrained by this treaty in any amendments made to US copyright law.15

This approach did not proceed smoothly. Senator Orrin Hatch wrote to Lehman that:

“Surely you will not want to be in the position of negotiating final language on a treaty that as yet commands no clear support in the full Senate and which may not ultimately be ratified. Congress will not wish to be in the position of having its hands tied by international developments on the basis of proposed legislation that has stalled precisely because it contains so many unresolved issues.”16 The US submission to the SCCR on the treaties had used anti-circumvention language almost identical to that of the White Paper’s draft Copyright Act amendments. One key difference was the removal of the requirement that circumvention be permitted if done by “authority of… the law,” so removing the explicit protection of circumvention done for legitimate purposes under copyright exemptions. The SCCR however was keen on this protection, and added a further requirement that prohibitions only be introduced against device manufacturers or service providers “knowing or having reasonable grounds to know” that a device or service would be used for purposes not authorised by copyright holder.

Even after this and other amendments, many SCCR members were unhappy about much of this language. In the end the SCCR settled for a more neutral provision

suggested by South Africa:

Contracting parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this treaty

-4International Review of Law, Computers and Technology, forthcoming, 2006 or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or by the law.

This became article 11 of the final WIPO Copyright Treaty17 (WCT) and mutatis mutandis, article 18 of the Performances and Phonograms Treaty18 (WPPT). These treaties came into force on 6 March 2002 and 20 May 2002 respectively.

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