1. Petroula Vantsiouri Doctoral Candidate in Law Cantab - LL.M. Harvard

2. TPMs and anti-circumvention TPMs constitute self-help mechanisms, such as copy protection for DVDs, password protection for online services and encryption of television broadcast signals, which are designed to prevent acts of infringement and exploitation of IP rights by controlling copying or access to works. Anti-circumvention norms do not create or enlarge exclusive rights as such, but they enhance the exploitation and enforcement of exclusive rights by making it illegal either to circumvent TPMs or to offer services that enable circumvention.

3. Anti-circumvention in the EU 1.Information Society Directive Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, O.J. L167, 22/06/2001 (henceforth InfoSoc). 2. Software Directive Directive 2009/24/EC of the European Parliament and the Council of 23 April 2009 on the Legal Protection of Computer Programs, O.J. L111, 16, 05/05/2009. 3. Conditional Access Directive Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access, OJ L320, 28/11/1998 (henceforth CAD).

4. “Complementary” Character of the 3 Directives 1. Ostensibly different subject matter 2. Ostensibly different beneficiaries of protection 3. Safeguard clauses: - Article 1(2) and Recital 50 InfoSoc - Recital 16 Software Directive - Recital 21 CAD

5. Ostensibly different subject matter INFOSOC & SOFTWARECAD Protect the use and economic exploitation of copyright works Protects the unauthorised reception of conditional access services regardless of whether they contain works protected by copyright INFOSOCSOFTWARE Protects the use and economic exploitation of other copyright works and related rights Protects the use and economic exploitation of Computer Programs

6. Ostensibly Different Beneficiaries of Protection INFOSOC & SOFTWARECAD original holders and successors in title of a copyright or a related right providers of protected services

7. Differences in the regulation of anti-circumvention in the EU The differences regarding the scope of protection of TPMs according to the protected subject matter affect fundamental matters, such as the: - prohibited acts - nature and purpose of circumvention means - means rea of the infringer - relation to contract law and to limitations of copyright law

8. The prohibited acts Only the InfoSoc condemns the act of circumvention per se. [Art.6(1) InfoSoc] All 3 Directives target the making and dealing in devices that facilitate circumvention, although their scope differs to a considerable degree. [Art.6(2) InfoSoc, Art.7(1)(c) Software, Art. 4 CAD]

9. The prohibited acts INFOSOCSOFTWARECAD Manufacture Import CONDEMNEDNO CONDEMNED FOR COMMERCIAL PURPOSES Distribution Sale Rental CONDEMNED CONDEMNED FOR COMMERCIAL PURPOSES AdvertisementCONDEMNEDNO CONDEMNED FOR COMMERCIAL PURPOSES Possession CONDEMNED FOR COMMERCIAL PURPOSES CONDEMNED FOR COMMERCIAL PURPOSES

10. The nature of circumventing means; devices or services INFOSOC SOFTWARE DIRECTIVE CAD Devices, products components the provision of services Any meansEquipment or Software DEVICESPROTECTED CODEPROTECTED SERVICESPROTECTEDPROBABLY NOT PROTECTED NOT PROTECTED

11. The purpose served by circumventing means INFOSOCSOFTWARE DIRECTIVE CAD “Primary purpose” to enable or facilitate circumvention “Sole intended purpose” to circumvent to enable or facilitate circumvention Irrelevant if the device has additional legal uses

12. The mens rea of the infringer INFOSOCSOFTWARE DIRECTIVE CAD “primary purpose to circumvent” criterion “Sole intended purpose to circumvent” criterion When the device has only a limited commercially significant legitimate use, facilitation may be unintentional. Only the intentional facilitation of illicit devices is condemned. Member State discretion to outlaw only the intentional facilitation of illicit devices.

13. Accommodation of Copyright Exceptions and Limitations INFOSOCSOFTWARE DIRECTIVE CAD Prevalence of anticircumvention regulation and contract over exceptions in the online environment Prevalence of copyright exceptions over anticircumvention regulation and sometimes contract Copyright Exceptions and limitations are irrelevant

14. OVERLAPS IN THE APPLICATION OF THE ANTI-CIRCUMVENTION PROVISIONS OF THE EU DIRECTIVES

15. Overlaps in the Application of InfoSoc/Software D. and CAD 1. The same TPM that prevents unauthorized access to the service also serves the function of impeding access to the work

16. Overlaps in the Application of InfoSoc/Software D. and CAD (I) 1. The same TPM that prevents unauthorized access to the service also serves the function of impeding access to the work 2. Copyright holders distribute their works online themselves

17. Overlaps in the Application of InfoSoc/Software D. and CAD (II) 1. The same TPM that prevents unauthorized access to the service also serves the function of impeding access to the work 2. Copyright holders distribute their works online themselves 3. Broadcasts enjoy protection as copyright works

18. Overlaps in the Application of InfoSoc and Software Directives Copyright works are offered in electronic formats with the help of computer programs that generate the display of copyright works. (eg. e- books, computer games) The same TPM that prevents unauthorised access or use of the code that generates the output of the work, also prevents access or use of the work itself.

19. Nature of computer games Kabushiki Kaisha Sony Computer Entertainment v. Dalvit Oscar, Cassazione, Sezione III Penale, Sentenza 25 Maggio 2007, n. 33768 (35598/2006). The court treated video games as a single work and held that the characterisation “copyright works other than “computer programs” better suited them.

20. Nature of Computer Programs The application of the InfoSoc or the CAD relies on whether the images generated on screens as a result of the operation of a program regarded as “expression in any form of a computer program”, according to Article 1(2) of the Software Directive. Article 1(2) Software Directive: “Protection in accordance with this Directive shall apply to the expression in any form of a computer program.”

21. Definition of “Computer Program” Case C-393/09, Bezpečnostní softwarová asociace – Svaz softwarové ochrany v Ministerstvo kultur, 22/10/2010 [NYR] A program’s graphic user interface is not protected as “a form of expression of that program” within the meaning of Article 1(2) of the Software Directive, but it can be protected by copyright as a work under the Information Society Directive, if that interface is its author’s own intellectual creation.

22. Works in digital formats are regarded as consisting of two separable elements; - a computer program, embodied in a semiconductor chip; - and the animated audiovisual display that the computer program projects onto the screen when activated by the user The circumvented TPM protects both the code and the generated output, which may enjoy copyright protection as such, the anti- circumvention provisions of both the Software and the Information Society Directive apply.

23. Conclusions The parallel existence of divergent norms with overlapping scope of application overprotects the interests of rightholders to the detriment of their competitors and of users of digital works. The established regime provides rightholders with the choice to base their claims in the most favorable to their interests norm and disregard the safeguards embedded in the other norms. Hence, there is a need to reevaluate the justifications that led to adoption of different legal treatment of TPMs for different subject matter and explore whether different policy reasons dictate the different scope of anticircumvention norms according to the protected subject matter, or whether the indicated differences are a result of inconsistent and inefficient protection of TPMs.