Implementing the EUCD: Legal Protection of Technological Measures iLaw Eurasia, Tallinn Urs Gasser, Berkman Center for Internet & Society December 15, 2004

Goals 1.Take EUCD implementation as an example of typical policy choices that must be made at member state level 2.Describe the mechanics of an implementation (WIPO, EU) 3.Hard questions in this context

Roadmap 1.Brief overview of EUCD 2.State of implementation 3.Legal protection of TPM (e.g. DRM systems)

Overview EUCD Directive 2001/29/EC on the Harmonization of Certain Aspects of Copyright and Related Rights in the Information SocietyDirective 2001/29/EC on the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society Basic objectives:Basic objectives: –Implementing WCT and WPPT –Harmonizing European copyright law Achieve the establishment of the internal marketAchieve the establishment of the internal market Avoid distortions of competitionAvoid distortions of competition

EUCD in a Nutshell Harmonization of three exclusive rightsHarmonization of three exclusive rights –Reproduction right (Art. 2) –Communication to the public right (Art. 3) –Distribution right (Art. 4) Introducing exhaustive list of copyright exceptions (Art. 5)Introducing exhaustive list of copyright exceptions (Art. 5) –but only one mandatory exception Introducing legal protection of technological measures (Art. 6)Introducing legal protection of technological measures (Art. 6)

Technological Measures Most controversial provisionMost controversial provision Art. 6(1) legal protection against act of circumvention of effective technological protection measuresArt. 6(1) legal protection against act of circumvention of effective technological protection measures Art. 6(2) legal protection against trafficking in circumvention devices for commercial purposesArt. 6(2) legal protection against trafficking in circumvention devices for commercial purposes Art. 6(3) definition of TPMArt. 6(3) definition of TPM Art. 6(4) interface protection of TPM and exceptionsArt. 6(4) interface protection of TPM and exceptions Art. 8(1) appropriate sanctions and remediesArt. 8(1) appropriate sanctions and remedies

State of Implementation See overview and materials at _materialsSee overview and materials at _materials _materials _materials

Transposing Art. 6 et al. Hard questions & hot topics:Hard questions & hot topics: –Scope (definition of “effective technological protection measures”) –Exceptions –Sanctions and remedies in case of violation

Scope: What are TPM? Art. 6(3): “any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works …, which are not authorized by the rightholder of any copyright...”Art. 6(3): “any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works …, which are not authorized by the rightholder of any copyright...”

Effective TPM? Art. 6(3): “where the use of a protected work … is controlled by the rightholders through application of an access control … or a copy control mechanism, which achieves the protection objective.”Art. 6(3): “where the use of a protected work … is controlled by the rightholders through application of an access control … or a copy control mechanism, which achieves the protection objective.”

Implementations Option 1: Copy & paste definitionOption 1: Copy & paste definition Option 2: Narrowing the scopeOption 2: Narrowing the scope –Only measures that prevent copyright infringement (Hungary) –Attempt to cut out mere access controls (Denmark, The Netherlands) –Restrictive definition of “effectiveness” Option 3: Maximizing the scopeOption 3: Maximizing the scope –Any use without authorization (e.g. Netherlands) –Making explicit: Access & copy control (e.g. UK) –Low “effectiveness” threshold (e.g. suggested in Germany)

Exceptions Public policy exceptionsPublic policy exceptions –Art. 6(4)(1) “in absence of voluntary measures taken by rightholders, member states shall take appropriate measures to ensure that rightholders make available to the beneficiary … the means of benefiting from that exception or limitation” Private copying exceptionPrivate copying exception –Art. 6(4)(2) “member state may … take such measures …”

Exceptions cont’ed Exception to the exception in Art. 6(4)(4)Exception to the exception in Art. 6(4)(4) –Public policy and private copying exceptions shall not apply to interactive on-demand services i.e. works made available to the public on agreed contractual terms, accessed from a place and time individually chosen by user.i.e. works made available to the public on agreed contractual terms, accessed from a place and time individually chosen by user.

Implementations Public policy exceptionsPublic policy exceptions –Option 1: “Wait-and-see” (e.g. Austria, The Netherlands) –Option 2: Intervene to ensure that exceptions are granted Mediation (e.g. Greece, Lithuania, Slovenia)Mediation (e.g. Greece, Lithuania, Slovenia) Administrative complaints procedure (e.g. UK)Administrative complaints procedure (e.g. UK) Direct access to courts (e.g. Ireland)Direct access to courts (e.g. Ireland) Private copying exceptionsPrivate copying exceptions –Option 1: none (most incumbent EU states) –Option 2: granting private copying exception in one form or another One (analog) copy (e.g. Italy)One (analog) copy (e.g. Italy) Broader exceptions (e.g. Lithuania, Malta, Slovenia)Broader exceptions (e.g. Lithuania, Malta, Slovenia)

Sanctions & Remedies Art. 8 “effective sanctions and remedies in regard of the rights and obligations set out in this Directive”; “effective, proportionate and dissuasive sanctions”Art. 8 “effective sanctions and remedies in regard of the rights and obligations set out in this Directive”; “effective, proportionate and dissuasive sanctions” Note: New powerful enforcement measures by IP Enforcement DirectiveNote: New powerful enforcement measures by IP Enforcement Directive

Implementations Standard: civil sanctions for violation of anti-circumvention provisionsStandard: civil sanctions for violation of anti-circumvention provisions Criminal sanctions; leeway re: acts of circumventionCriminal sanctions; leeway re: acts of circumvention –Option 1: For any acts of circumvention (e.g. Greece), imprisonment and fines –Option 2: imprisonment and fines only for acts of circumvention for non-private and commercial uses (e.g. U.K.) –Option 3: No imprisonment, only fines for acts of circumvention (e.g. Denmark)

Conclusions Harmonizing effect of the EUCD, but significant differences remainHarmonizing effect of the EUCD, but significant differences remain Leeway also means: Important policy choices must be made at national levelLeeway also means: Important policy choices must be made at national level Typically, hard questions include scope of protection, exceptions, and sanctions/remediesTypically, hard questions include scope of protection, exceptions, and sanctions/remedies –What’s the right regulatory ecosystem (“best practice”)? –What about user acceptance of different protection levels on a global marketplace, vis-à-vis “uniform” P2P?

Berkman Center for Internet & Society Harvard Law School Urs Gasser, Berkman Center for Internet & Society December 15, 2004