English
1. Introduction
None of these rules are applicable to technological measures that protect computer programs (infra, 7).
The following overview is limited to the law on technological measures as laid down in Art. 6 of the Copyright Directive. It does not deal with rights-management information (Art. 7 Copyright Directive = § 95c German CA) or other statutes on technological protection measures, such as the conditional access directive and its German implementation.
The German legislature is already working on the next amendment of the German CA (so-called “second basket”), which will also concern technological measures, notably the question whether the limitation for digital private copies will be enforced against technological measures and in how far levies have to be adjusted because of the application of technological measures. This legislative process is expected to be finished in 2005/2006.
2. Definition of Technological Measures
§ 95a (2) sentence 1 defines what a protected technological measure is. The provision copies the Copyright Directive almost literally. Protected technological measures are:
- technologies, devices and components that
- in the normal course of their operation
- are designed to prevent or restrict acts
- in respect of works or other subject matter protected by the German Copyright Act
- that are not authorized by the right holder.
Sentence 2 names as examples access controls, protection processes such as encryption, scrambling or other transformation, and copy control mechanisms. These measures can be hardware- or software-based (for example smartcards, software to enable password control).
The technological measure has to protect copyrightable material. Therefore, technologies preventing acts in regard of content that is not subject to copyright protection because copyright has expired or because the content lacks other preconditions for copyright (lack of originality etc.) may lawfully be circumvented.
However, there is no “right to hack,” where a user wants to benefit from the limitations to copyright. It is thus not allowed to circumvent the measure, even if the circumvention is done solely for e.g. private copying or citing the protected content. Only with regard to some “first class” limitations is the right holder obliged to make available to the user necessary means to benefit from the limitation without circumventing the technological measure (infra, 5).
3. Effectiveness
Technological measures have to be “effective”. § 95a (2) sentence 2, which is copied from the Copyright Directive, proclaims hat the content has to be controlled through application of a mechanism, which achieves the protection objective. Since this wording is everything but clear, one can only speculate what “effectiveness” means.
If only 100-proof technological measures were effective, legal protection would be superfluous. It has been argued that malfunctioning measures that conflict with the normal use of a device are ineffective. Some commentators propose that only those measures deterring the average user are “effective.” Others hold that even mechanisms that are easy to bypass are eligible for protection as long as any activity towards circumvention has to be undertaken. Ultimately, the European Court of Justice will have to give guidance on how to interpret this requirement.
4. Restricted Acts, Sanctions and Remedies
Circumvention
§ 95a (1) declares that effective technological measures
- may not be circumvented
- without authorization of the right holder,
- if the actor knows or has a reason to know that the circumvention takes place in order to enable access to such a work or subject matter, or to enable its use.
Circumvention can be defined as any act abrogating the function of the technological measure, for example inserting a chip or running a computer program in order to copy a protected work.
Following the wording of this provision, research on encryption systems can possibly be a violation. It is however opined that the purpose of encryption research is not to use the work, but to test the effectiveness of the protection measure. These acts would therefore not run afoul of § 95a (1) German CA. It remains to be seen whether courts will follow this interpretation.
Circumvention Devices and Services
§ 95a (3) German CA, which is also copied nearly word by word from the Copyright Directive, bans certain preparatory acts relating to circumvention. It is prohibited
- to manufacture, import, distribute, sell, rent, advertise for sale or rental and possess for commercial purposes devices, products or components,
- and to provide services
- that are
- advertised for the purpose of circumvention, or
- have only a limited commercially significant purpose or use other than to circumvent, or
- are primarily designed for circumvention.
The idea behind this provision is that the average user is not capable of circumventing protection measures on his or her own but instead relies on techniques developed and offered by “hackers.” This kind of “support” is banned. For example, it would be a violation of this provision to explain in a periodical or on a website how to bypass a copy protection system, or to make the necessary software available on the net.
Again, especially the publication of results of encryption research may come into conflict with this law. In order not to render academic discussion in this field impossible, at least the publication in recognized academic journals should not be considered a violation. However, it is not clear whether courts will apply this distinction.
Civil Remedies
A violation of these provisions triggers civil remedies according to German tort law. These remedies include:
- an injunction to prevent further violations,
- a right of information,
- a claim for damages,
- and the destruction of infringing goods.
Penal Sanctions
Additionally, § 108b German CA declares some of the prohibited acts to be criminal offenses, punishable with imprisonment up to one year or a fine. This relates to
- willful circumvention of technological protection measures, unless this circumvention is done for private use (§ 108b (1) no. 1), and
- professional manufacture, import, distribution, sale or rental of devices, products or components for circumventing (§ 108b (2)).
Professionally circumventing technological protection measures is even penalized with up to three years of imprisonment or a fine (§ 108b (3) German CA). Other acts in violation of § 95a (3) do not constitute a crime but may nevertheless be punished with an administrative fine up to € 50.000,00 (§ 111a (1) no. 1).
The circumvention of technological protection measures for solely private use is neither a criminal offense nor punishable with administrative fines.
5. Limitations and Enforcement of Limitations
Probably the most challenging task in regulating technological protection measures is to make clear the relationship between the protection of these measures and the limitations on copyright. The Copyright Directive and, accordingly, German law do not entitle the user to hack a technological measure, even if the user acts in order to make private copies or to engage in other permissible acts (such as quotation).
Instead, from
- for the administration of justice and public safety,
- for people with disabilities,
- for collections for school or instructional use,
- for school broadcasts and for making works available for teaching and research,
- for personal academic use,
- for the inclusion of the work in personal files, if and to the extent that reproduction for this purpose is necessary and not done for commercial purposes,
- for personal use in teaching or for examinations.
The limitation for private copying (§ 53 (1) German CA) may be enforced against technological protection measures, but only in respect of reproductions on paper or similar mediums by photographic techniques. Thus, the right holder is not obliged to support the user if he or she wants to make a digital private copy of the work.
The law does not say how this obligation may be accomplished. The German legislature hopes that right holders and users will agree on procedures. Otherwise, one could think of providing the beneficiary with additional copies or with a version that allows a certain number of reproductions. If the right holder refuses to execute his duty, the beneficiary may sue the right holder for making the necessary means available, possibly also for damages.
Additionally, associations of “first class” limitation beneficiaries - for example, associations of disabled persons - have standing to sue the right holder (§§ 2a, 3a German law on actions for an injunction (Unterlassungsklagengesetz). However, this standing to sue only relates to injunctions against the failure of the right holder to enable lawful uses. Such an action does not really strengthen the position of users because associations are not entitled to demand from the right holder to support beneficiaries in individual cases. It thus remains to be seen whether this solution will develop practical relevance at all.
Finally, right holders who do not make necessary means available according to § 95b (1) face an administrative fine of up to € 50.000,00 (§ 111a (1) no. 2).
One important exception to these rules has to be stressed. Generally, no obligation to enforce limitations on copyright against technological protection measures exists where a work is distributed on demand online on agreed contractual terms (§ 95b (3)). Where a user acquires content over the net by using “on demand” services and pressing the “I agree” button, he or she may therefore never demand that a right holder facilitates any use.
6. Neighboring Rights and Database Rights
Not only technological measures of copyrightable works are protected according to §§ 95a et. seq. German CA, but also measures that relate to databases and other protected subject matter, such as performances.
7. Technological Protection of Software
§§ 95a-d do not apply to technological protection of software protected under copyright (“computer programs”). This is expressly stated by § 69a (5) German CA. Thus, one first has to ask whether the technically protected content is software or something else.
According to § 69f (2) German CA, which has been in force since 1993, the right holder may require from every owner or possessor any means of which the sole intended purpose is to facilitate the unauthorized removal or circumvention of any technical device that may have been applied to protect a computer program from being destroyed. For example, several court decisions have declared that software to circumvent dongles as technical devices preventing unauthorized copying is covered by this provision. Different from § 95a German CA, the right holder does not have to show that the defendant circumvented the device or offered the circumvention means publicly. Everyone who owns or only possesses these means is liable.
Again, it is questionable how to bring this law into line with limitations of the legal protection of software under the German CA. Liability according to § 69f (2) is given only where removal or circumvention of technical devices would be “unauthorized.” Several court decisions have dealt with the question of whether the infringer may rely on limitations of the legal protection of software, for example, that he or she allegedly needed the circumvention means for permissible uses under § 69d German CA (use of the computer program, error corrections, making a back-up copy). However, except for one single decision of the Mannheim District Court, this defense was not accepted by the courts.
8. Miscellaneous & Controversial Subjects
Labeling
With effect from
First, § 95d (1) prescribes that the properties of the technological protection measure have to be clearly indicated. The authors of the law want to make sure that everyone who buys a CD or downloads music knows what technical restrictions of possible usage he or she has to expect. It is not necessary to explain how the protection measure works, but the consumer must be well informed about, for example, whether copying is possible, whether the content can be used on a PC, and about other modes of action of the technical device applied that may influence the consumer’s decision. In light of these goals, the relevant information must be displayed on the package of a CD or DVD or on a website that is visible before the consumer downloads or streams the content.
Second, according to § 95d (2), the right holder has to identify his or her name and address if technological measures are adopted. This provision assures that those beneficiaries who have a right to obtain support from the right holder for certain permissible uses (“first class” limitations, supra, 5) know who the responsible right holder is. This information need not be visible on the packaging (a declaration in the booklet of a CD would be sufficient). Since in the case of interactive online uses the right holder is in no case obliged to facilitate even “first class” limitations, an identification of the name and address is not required for on demand services.
If the right holder fails to meet these requirements, consumers or beneficiaries may file for damages. Besides, a violation of § 95d (2) - the obligation to indicate name and address - entails an administrative fine of up to € 10.000,00 (§ 111a (1) no. 3).
Levies and Technological Measures
Private copying is permissible, even if it involves digital copies. However, right holders are compensated by a levy on appliances and on recording mediums that are intended for the making of reproductions (for example: CD writers). Since it would not be fair if a levy were due if private copying is technologically blocked, § 13 (4) of the Law on the Administration of Copyright and Neighboring Rights declares that collecting societies, in drawing up tariffs for the levy, have to take into account in how far technological protection measures are applied. There is an ongoing discussion as to whether this approach is sufficient. It is expected that the next amendment of the copyright act (“second basket”) will deal with these questions too.
Author:
Dr. Alexander Peukert
Senior Research Fellow
Max-Planck-Institute for Intellectual Property, Competition and Tax Law, Munich
Last update:
Also available are the relevant parts of the German copyright act.
Print
Send to Friend
