Copyright in the EU: The Infosoc Directive: TPMs, ACPs and RMI Turin, October 2011 Dr E Derclaye University of Nottingham

WIPO treaties 1996 Origin of ACPs & RMI: Art. 11 WCT & 18 WPPT Implementation in art. 6 & 7 InfoSoc Directive Three levels of protection: – Copyright – TPMs – legal protection of TPM = ACPs Difficulty: copyright’s balance (level 1) can be jeopardised by the legal protection (level 3) of TPMs (level 2) 2(c) E. Derclaye

Examples of TPMs ID+ password Encryption – ex: DVD CSS Watermarking Rights language: e.g. the machine code states that the work cannot be printed or printed more than once etc. (e.g. pdf: see file, properties) DRM = complete chain of protection and rights management; have several functions (e.g. stock the work on a server, licence negotiation, making the work safe, perceive and distribute payment/royalties to owner) DRM use several TPMs e.g. watermarking and encryption 3(c) E. Derclaye

Double protection regime Art. 7 software Directive and art. 6 InfoSoc Directive -> see s. 296 and 296Z ff CDPA Why? Fear of reopening the decompilation debate? Art. 7(c) Directive: Little interpretation (recitals, TP, literature) 4(c) E. Derclaye

Art. 7 Software Directive Only the commercialisation of circumvention equipment is prohibited Only aim = reduces protection – ex: software has a lawful aim but can also, subsidiarily, neutralise TPM is not covered by the prohibition => sufficient to give a lawful function to the circumvention device to escape the prohibition The law is not very efficient – provision easily overridden but… 5(c) E. Derclaye

Sony v Ball Defendant knew or had reason to believe that his Messiah 2 chips would be used to make infringing copies when he sold them in the UK => he infringed Sony's rights Defendant infringed s.296(2)(b) by publishing information on a website intended to enable or assist persons to circumvent the copy- protection system 6(c) E. Derclaye

Sony v Ball Sony's copy protection system was designed to prevent all uses of non-PAL games on PAL consoles (…). The sole purpose of the Messiah2 chip was to circumvent this. Section 296ZD created a tort of strict liability (restated in Nintendo v Playables, 2010): it is a breach, for example, to advertise for sale any device, component, product or service primarily designed, produced, adapted or performed of the purpose of enabling or facilitating the circumvention of TPM 7(c) E. Derclaye

Sony v Ball Nothing in the wording of the copy-protection provisions requires the copy protection system to be on the software rather than the hardware. There is nothing in the definition of either "technical device" or "technological measure" which limits where the device or measure should be. Restated in Nintendo v Playables (2010) 8(c) E. Derclaye

Nintendo v Playables “The section restricts acts in relation to“means the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of the technical device”. The focus of this requirement is on circumvention. The fact that a device may be used for a purpose which does not involve infringement of copyright does not mean that the sole intended purpose is not the unauthorised circumvention of a technical device.” The requirement of knowledge is general. “It is not necessary to show (a) that the defendant knew any particular program was to be copied or (b) that the means would only be used for making infringing copies”. Broad interpretation => s. 296 is not that weak… 9(c) E. Derclaye

Art. 6 InfoSoc Directive - structure Para 1: obligation of appropriate protection against circumvention of TPMs Para 2: obligation of appropriate protection against acts preparing the circumvention: manufacture, sale… Para 3: definition of TPM and effective TPMs = the only ones that are protected Para 4: mechanism to ensure the respect of copyright exceptions 10(c) E. Derclaye

Definition of TPM Art. 6§3: “TPM means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorised by the right holder of any copyright or any right related to copyright as provided for by law or the sui generis right provided for in Chapter III of Directive 96/9/EC.” 11(c) E. Derclaye

Definition of TPM Exclusions: – elements (works or not) belonging to the public domain (a contrario) – software: see above Inclusions: – acts covered by exceptions – Access acts 12(c) E. Derclaye

Definition of effectiveness “Technological measures shall be deemed "effective" where the use of a protected work or other subject-matter is controlled by the right holders through application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject- matter or a copy control mechanism, which achieves the protection objective.” 13(c) E. Derclaye

Prohibition Technological protection measures (TPMs), art. 6 §1&2: Member States must provide for the legal protection of TPMs, i.e. prevent the circumvention of effective TPM which the person concerned carries out knowingly or with reasonable grounds to know that s/he is circumventing the TPM & activities primarily designed or produced to circumvent TPMs (ACDs) 14(c) E. Derclaye

Safeguard of the exceptions Consumers feared that art. 6 could create a technical monopoly over all use of copyright works, lawful as well as unlawful. This is because, if a TPM is introduced which blocks all copying and it is unlawful to do anything about this, this means not only that right owners could technically prevent copying permitted by exceptions or where the term of copyright has expired but that, in addition, it would actually be unlawful to do anything about this. Consequence: users could not benefit from exceptions 15(c) E. Derclaye

Art. 6(4) “Member States should promote voluntary measures taken by right holders, including the conclusion and implementation of agreements between right holders and other parties concerned, to accommodate achieving the objectives of certain specific exceptions or limitations provided for in national law.” In the absence of such voluntary measures or agreements, Member States are obliged to take appropriate measures to ensure that right holders provide beneficiaries of such exceptions or limitations with appropriate means of benefiting from them. NB: The provisions of the first and second subparagraphs shall not apply to works or other subject-matter made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them. 16(c) E. Derclaye

Only 7 exceptions safeguarded I.e. Article 5(2)(a), (2)(c), (2)(d), (2)(e), (3)(a), (3)(b) or (3)(e) (disabled, teaching, research, public security...), so not all – most prominent example = exception for review and criticism 17(c) E. Derclaye

RMI – art. 7 InfoSoc Directive Much less controversial than art. 6: legal protection against the removal or alteration of any electronic RMI and the diffusion of protected material from which the RMI has been removed or altered by any person doing so knowingly Art. 7.2: definition of RMI : any information provided by right holders which identifies: – the subject-matter protected – the author or any other right holder – information about the terms and conditions of use of the protected subject-matter and – any numbers or codes representing that information – Ex: logos, icons, hyperlinks, © notice, ISBN 18(c) E. Derclaye