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International Context
The national laws on circumvention discussed on this website are introduced to fulfill certain international obligations. Both a treaty at the UN level signed in 1996 and a European directive enacted in 2001 require that the EU Member States protect technological measures in their national (copyright) laws.
1. WIPO-Treaty
In 1996 the members of the World Intellectual Property Organization (WIPO), which is a specialized agency of the United Nations, agreed on a treaty regarding copyright: the so-called WIPO Copyright Treaty.
The WIPO Copyright Treaty was drafted in order to provide international rules to solve the (perceived) problems created by technological developments, more particularly, the problems caused by the rise of digital technology and the Internet.
Technological measures are dealt with in Article 11 of the Treaty. With this provision, the contracting states take it upon themselves to:
‘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 or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.’
The quoted provision implies that technological measures need only be protected, if they hinder an act that constitutes a copyright infringement. If technological measures block activities that are not covered by the restricted acts under copyright law, the contracting states are under no obligation to prohibit the circumvention of such technological measures.
2. The European Copyright Directive
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Generally, a EU directive does not create provisions to which the civilians of the EU countries can appeal directly, rather it addresses the legislative bodies of the Member-States. They have to implement the norms dictated therein into national legislation. That is to say, a Directive only addresses member states, not the civilians of the states. Only after the rules of a Directive have been made part of national law, are the civilians of the EU countries bound by them. The provisions of a Directive do not have to be copied verbatim in national law. A Directive aims for a result. The EU Member States are free to transpose its norms according to their own legislative traditions. The ultimate authority with regard to matters that are regulated in a Directive no longer is with the national supreme courts. The European Court of Justice determines how the rules of a Directive must be interpreted.
The Copyright Directive took three years to make. Various interest groups, such as the entertainment industry, I.T. hardware and software manufacturers, telecommunications operators, broadcasters and, to a lesser extent, consumer organizations lobbied intensively during the preparation of the Directive, which is a testament to the enormous interests at stake. On
It is important to note that this Directive focuses on copyrighted material such as texts, music and films. Software is explicitly excluded from its scope. The protection of technological measures applied to software products is governed by a different regime, which is discussed further below. On the other hand, the provisions on technological measures discussed below also apply to technological measures that hinder acts with regard to material protected by the neighboring and database rights.
3. Technological Measures
Article 6 of the Copyright Directive concerns technological measures. The definition of protected ‘technological measures’ is given in Article 6(3):
‘For the purposes of this Directive, the expression ‘technological measures’ 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 [protected] subject matter, which are not authorized by the rightholder.’
Apparently, any technology is covered which enables a rightholder to prevent usage of a work that he did not authorize. That is to say, the Directive requires the EU Member States to protect a technological measure even if it obstructs the user from performing an act that is not a copyright infringement. Note that the EU Directive goes further in this respect than the WIPO Treaty requires, as the Treaty only obliges to protect technological measures which prevent copyright infringing activities.
The definition does, however, contain a limitation to the protection of technological measures. Technological measures need only be protected if they hinder to perform an act with copyrightable material. Technological measures, which are applied to material not protected by copyright – or by the neighboring or database rights – may lawfully be circumvented.
4. Effectiveness
Another limitation of the scope of protection of technological measures follows from the fact that only ‘effective’ technological measures have to be protected by the EU Member States. Even though it is still uncertain what exactly this requirement implies, some insight into its meaning is given in Article 6(3):
‘Technological measures shall be deemed ‘effective’ where the use of a protected work or other subject matter is controlled by the rightholders 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.’
Essentially, to be considered effective, a technological measure has to allow the rightholder to control the use of a work. Two types of technological measures are mentioned: those which control access to a work, e.g. by way of encryption techniques, and copy control mechanisms. To be considered ‘effective’, technological measures must meet their protection objective, which seems quite obvious. Probably, if a technological measure does not really and reliably restrict (unauthorized) acts, it is considered to be ineffective and thus not protected. However, it is up to the European Court of Justice to ultimately decide what the requirement means.
5. Circumvention
Which activities must the EU Member States target in their national laws? First of all, the act of circumvention. Article 6(1) contains the norm regarding the circumvention of technological measures:
‘Member States shall provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.’
Not under all circumstances must circumvention be made illegal in national law. Only if a person knows or has reasonable grounds to know that an act leads to the circumvention of a technological measure, do the Member States have to declare that act unlawful. Thus, if, for example, person A sends a file to person B, who, not knowing it to be a crack and having no reason to assume it is one, runs the file which then turns out to crack a technological measure, then the Directive does not require the Member-States to target this act.
6. Circumvention Devices
Apart from circumvention itself, the national laws of the Member States must also target certain acts that are related to circumvention. Article 6(2) instructs them to prohibit the manufacture, distribution and sale of devices or services which:
· are advertised, promoted or marketed for the purpose of circumvention, or
· have only a limited commercially different use or purpose other than to circumvent, or
· are primarily designed to enable circumvention.
The main purpose of these criteria is to distinguish equipment or software which can be used for circumvention, but which is also capable of other uses which are not related to circumvention. For instance, a regular PC of which the number crushing power can be used to decrypt a file, but which can also be used as a word processor, will not fall under the criteria.
7. Sanctions and remedies
The Directive requires the EU Member States to provide ‘adequate legal protection’ against circumvention and against the provision of circumvention devices or services. This means that it is up to the Member States to decide whether it is enough to provide civil remedies or whether penal sanctions are also necessary. Thus, there may be differences in the remedies that are available in the different countries and in the penalties imposed on circumvention and on the provision of circumvention devices or services. In one respect the Directive is somewhat more demanding. Article 8(2) states that a rightholder must be able to apply for the seizure of circumvention devices.
8. Exceptions and Exception Procedure
Copyright law confers to rightholders the exclusive rights to reproduce their works or to make them available to the public. However, the copyright acts of all European countries contain many statutory exemptions, due to which the performance of a restricted act under copyright law is not an infringement. In cases where usage is covered by an exemption, the authorization of the rightholder is not needed to lawfully reproduce a copyrighted work or to make it available to others.
As is explained above, technological measures may not be circumvented, even if they hinder activities expressly exempted under copyright law. This implies that, if a rightholder decides to technologically block usage that is not an infringement, it nevertheless is necessary to acquire the rightholder’s permission. Thus, the protection of technological measures could render the copyright limitations meaningless.
The Copyright Directive does, to some extent, take account of the broadening scope of control over usage that the protection of technological measures provides. Article 6(4) compels the Members States to ensure that right owners furnish users with the means which enable certain exempted activities. But the EU countries are only obliged to do so, if right owners do not voluntarily supply those means or come to an understanding with the users about the exempted usage concerned. The Member States may decide for themselves when rightholders have had enough time and, thus, when it is appropriate to introduce an obligation for copyright owners to provide the means necessary to perform an exempted act. Some countries apparently found that the time is up and have taken measures to that effect, others, however, chose to wait. Additionally, the Member States mat decide for themselves which “means” rightholders will have to provide.
For only six of the twenty-one exemptions which the Copyright Directive allows the Member States to insert in their national copyright acts, must they compel rightholders to supply the means enabling the exempted usage. This is for the those exemptions permitting:
· photographic reproductions
· reproductions made by public libraries, schools, museums
· ephemeral reproductions made by broadcasters
· reproductions for teaching or for scientific research
· uses for the benefit of people with a disability
· uses for public security or administrative or judicial procedure
Additionally, the EU countries may choose to require that rightholders enable usage covered by the private copying exemption. Because, with regard to this exemption, there is no obligation for the Member States to ensure that the usage is facilitated by copyright owners, it is to be expected that the regimes in the different countries will diverge. In some countries rightholders will have to enable private copying, in others they will not.
Finally, it’s important to note that the Member States may not oblige a copyright owner to provide the means which enable exempted usage, if the work is distributed online and on demand and the user contractually agreed to not to perform the exempted act. Additionally, the rightholder need only provide the means enabling usage, if the user has lawful access to the work. Exempted usage does not have to be facilitated, if the user did not lawfully acquire a copy.
9. Technological Protection of Software
The above regime explicitly does not apply to the technological protection of computer programs. Recital 50 of the Copyright Directive states that the protection of technological measures that are used in connection with computer programs is addressed exclusively by Directive 91/250/EEC – the so-called Software Directive of 1991. Consequently, a different regime is applicable to the legal protection of technological measures that control the usage of software products.
Article 7(1)(c) of the Software Directive requires that the EU Member States introduce in their national laws appropriate remedies against:
‘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 applied to protect a computer program.’
Note that the act of circumventing technological measures applied to software products needs not be targeted by the countries of the EU. Only the trafficking in circumvention devices for such technological measures needs be declared unlawful. Another difference with the regime of the Copyright Directive is that only devices of which the ‘sole intended purpose’ is to facilitate circumvention have to be prohibited. Clearly, this criterion is harder to fulfill than the criteria for distinguishing illegal circumvention devices from illicit multi-purpose equipment, mentioned in Article 6(2) of the Copyright Directive.
Also, the relation to the copyright exemptions is somewhat different where the protection of technological measures applied to software is concerned. Remarkably, this is not clarified in the Software Directive, but in the Copyright Directive, which was enacted about a decade later. Recital 50 of the latter Directive states that the protection of technological measures that hinder the usage of software should:
‘neither inhibit nor prevent the development or use of any means of circumventing a technological measure that is necessary to enable acts to be undertaken in accordance with the [exemptions] of Article 5(3) [which allows to do research as to the ideas and principles which underlie a computer program] or Article 6 [which permits decompilation] of [the Software Directive]’.
This means that the development or use of circumvention devices which are necessary to perform decompilation or research as to the principles underlying a computer program (reverse engineering) may not be restricted by the protection of technological measures. Thus, it appears that, for example, devices or software which enable to decrypt an encrypted software product may lawfully be produced and distributed. It will be interesting to see how judges will rule if the provider of a device which is capable of decrypting computer programs for any purpose, and therefore also for the purpose of studying the ideas underlying the program, is indicted.
10. Technological Measures and Levies
Many European countries introduced a levy scheme for private copying. In those jurisdictions, the rightholder cannot prohibit home copying, but he is entitled to a remuneration for private copying. Copyright owners are compensated for the losses by a levy on recording equipment and/or blank recording media. However, with the advent of technological measures – so-called Digital Rights Management Systems – it is expected that rightholders can technologically block private copying or can extract payment for it directly from the user. It would then seem superfluous to maintain a levy system.
Article 5(2) of the Copyright Directive allows the EU Member States to insert an exemption for private copying in their national copyright acts. However, they may only do so, under the condition that the rightholders receive ‘fair compensation’ for home copying. The provision goes on to state that in determining the amount of compensation, the extent to which technological measures are used has to be taken into account.
Thus, there is a link between technological measures and the levy scheme. The idea appears to be to lower the levy in due course, as technological measures become more common. But how exactly must the application or non-application of DRM systems be taken into account? According to some commentators, it is impossible to measure the actual usage of these systems. They propose to phase out the levies not based on the actual usage of technological measures, but on the availability of DRM systems on the market. They argue that the Copyright Directive requires to repeal the levy system as soon as reliable and standardized DRM-systems are available.
11. Encryption Research
The protection of technological measures, as introduced by the Copyright Directive, could be at odds with (academic) research into cryptography. Encryption research usually is conducted in a ‘battle’ between code-makers and code-breakers. Code-breakers try to find the weaknesses of encryption schemes in order for the code-makers to know where they need to improve them.
However, successfully attacking a technological measure may constitute an act of circumvention for the purpose of Article 6(1) of the Directive. Furthermore, the publication of research results, which would usually consist of a description of the weak spots of a protection system, could be regarded as the provision of a circumvention service, which is prohibited under Article 6(2). Needless to say that if those activities are indeed unlawful, research into cryptography could be paralyzed. The development of DRM systems, which are often based on an encryption layer, could thereby be stifled.
If, on the other hand, a paper were published which describes in detail where the soft spots may be found of a DRM-system which is applied in practice, than the effectiveness of the technological measure could be nullified instantly. This could cause substantial damages for rightholders. Clearly, there is a tension between the two interests.
Although the issue was identified during the drafting of the Directive, there is no exception to be found in the body of law of the Copyright Directive. There is, however, a statement regarding the relation between the protection of technological measures and cryptography research. Recital 48 of the Directive states that the protection of technological measures may not hinder the research into cryptography. It is, however, left to the
Authors:
Kamiel J. Koelman
Menno Briët
Free University of
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