Legal Protection of Copy- protection Mechanisms & Rights Management Information Martina Gillen Law Department, Reading University & Gavin Sutter Institute of Computer & Communications Law, Centre for Commercial Law Studies, Queen Mary, University of London

Introduction l Copyright in the digital era –Ease of infringement –Enforcement problems –Conceptual challenges to copyright l Find new ways to protect copyright… –Copy protection technologies l Dongles, SDMI, smartcards, encryption –Access control mechanisms –Rights management information l Or abandon it? –What is the alternative?

Legislative Response l WIPO Treaties 1996 l EU Copyright in the Information Society Directive l UK Copyright & Related Rights Regulations 2003 l US Digital Millennium Copyright Act

Protection of Copy-protection Technologies l WIPO Copyright Treaty Article 11 –Adequate legal protection& effective remedies against circumvention l EU Copyright Directive –A6(1): adequate legal protection against “circumvention of any effective technological measures” –A6(2): prevention of trade in circumvention tools l Primarily designed… l Marketed as… l Only limited commercially significant other uses –A6(3): scope l “designed to prevent or restrict acts…which are not authorised by the rightholder…” l “…controlled by the rightholders through application of an access control or protection process…”

Protection of Copy-protection Technologies l UK Regulations – Regulation 24 –“Circumvention of copyright protection measures” –Circumvention of copy protection or access control system l Encryption research exception –Commercial manufacture & dealing in circumvention tools l Computer programs l General circumvention of protection measures l “…in the course of a business or otherwise…to such an extent as to affect prejudicially the copyright owner…” l Exception for law enforcement agencies and intelligence services

Protection of Copy-protection Technologies l US Digital Millennium Copyright Act –Introduction of new Copyright Act S1201 –Section 1201(a) l Circumvention of “technological measure that effectively controls access…” l Circumvention tools –“primarily designed” –“only limited commercially significant [other] purpose or use…” –“marketed…for use in circumvention…” –Section 1201(b) l Manufacture or trade in tools designed to circumvent “protection afforded by a technological protection measure that effectively protects a right of copyright…” l Fair use exemption – clarity problem? l Other exemptions

Rights Management Information l WIPO Copyright Treaty A12 –Removal / alteration of rights management information –Distribution of copies where RMI removed / altered –What is rights management information? l Identifies the work / author / rightholder / terms and conditions / “any number or codes that represent such information”

Rights Management Information l EU Copyright Directive A7 –Removal / alteration of RMI –Distribution of copies where RMI removed / altered –Rights Management Information is… l “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.” l UK Copyright and Related Rights Regulations 2003

Rights Management Information l US Digital Millennium Copyright Act S1202 –“Integrity of copyright management information” l Knowing provision of false copyright management information or distribution / acts prepatory to distribution l Intentional removal or alteration of copyright management information, or distribution of same

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.”

Exceptions, Limitations & Penalties l WIPO Treaty l EU Directive / UK Regulations l DMCA

Criticisms l Controversial provisions l Empowering the rightholder… l …at the expense of the public domain? l The US as a “test-lab”: DMCA in action

The DMCA in Action: Common Criticisms DMCA Section 1201… l -v- Freedom of Expression & Scientific research –Dmitry Skylarov (Elcomsoft) –Felten –v- RIAA l -v- Fair Use –‘Time shifting’ l Realnetworks, Inc –v- Streambox Inc 2000 WL (WD Wash Jan 18, 2000) –deCSS l Bunner l Corley l Universal City Studios –v- Ramirez 111 F Supp 2d 294 (SDNY 2000) l -v- Competition & Innovation l Sony Computer Entertainment Inc –v- Connectix Corporation 203 F 3d 596 (9 th Circuit 2000) l Sony Computer Entertainment America Inc –v- Gamemasters 87 F Supp 2d 976 (ND Cal 1999) …Time for a change?

Problems with Terminology l Terms like “contract” or “bargain” carry intellectual associations with them which do not necessarily reflect the actual nature and effects of the copyright regime.

Examining the history and purpose of Copyright l Difficulties of gaining a clear picture because of fragmented views of copyright history.Multi- disciplinary not often interdisciplinary. –Lawyers; –Printers; –Authors; –Literary theorists; –Marxist theorists; –Post-modern writers; and, –Post-industrial critics.

Technological Challenges l Speaking to creators –John Perry Barlow l "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'.

Review the Copyright Structure? l Alternatives –Copyleft –Creative Commons –Technological Controls l What are the potential underlying interest balances?

Conclusions l There are problems with existing regimes. l We now need to ask what values we want to promote and how best to achieve this? l Learn form copyright history.