English
1. Introduction
On 17 June 2005, the Norwegian Parliament passed the Act implementing the EU Copyright Directive into Norwegian law. The implementation was carried out through several amendments to the Norwegian Copyright Act of 1961. The new Sect. 53a of the Act provides legal protection of applied technological measures, as required by Article 6 of the Directive, in the form of a prohibition against circumvention and certain circumvention-related acts. At the overall level, the Norwegian legislator has intended to maintain the pre-existing balance between rightholders and users, and the approach chosen as to the implementation Article 6 contains some rather innovative elements that go far in protecting user interests.
2. Definition of Technological Measures
The act does not contain any actual definition of technological measures. However, on the basis of how the prohibition of circumvention is phrased (combined with unambiguous statements in the preparatory reports) it is clear that the anti-circumvention protection in principle shall apply only to technological measures that control so-called “copyright-relevant acts”. Basically, this means that only measures that control the copying or making available to the public of works – the acts defining the copyright holder’s exclusive rights under Norwegian law – are protected. However, the said limitation is not much more than a theoretical starting point, since the act also protects so-called “combined measures” – measures that control both acts that are and acts that are not. (The Ministry originally intended to exclude such combined measures from the protection, but was convinced to reverse its standpoint during the public hearing-round).
3. Effectiveness
As in Article 6, the text of the Norwegian provisions refers to “effective” technological measures. According to the explanatory reports, this means that the protection system must not be too simple.
- According to the white paper, a protection that can be removed by a stroke of ink, or by pressing a key on the keyboard while loading, shall not be regarded as “effective”.
- And in the report of the Parliament committee, it is similarly stated that a measure that can be neutralized by a person without formal or professional special expertise, shall not be regarded as “effective”.
Based on these statements, it seems that the threshold might be a bit higher under Norwegian law than according to Community law.
4. Restricted Acts, Sanctions and Remedies
The first two paragraphs of Sect. 53a contain the two prohibitions of, respectively, the act of circumvention and certain acts related to dealing with circumvention tools and services. These provisions reflect the two first paragraphs of Article 6, and no deviation from the Directive is intended. Violation can be met with both penal and economical sanctions.
5. Exemptions and Exemption Procedure
In the view of the Norwegian legislator, the inclusion of so-called “combined measures” potentially renders the anti-circumvention protection too wide-ranging. Thus, a limited exception to the ban of circumvention was created, in order to protect certain forms of private use: If a technological measure hinders what is called ‘enjoyment within the private sphere’ of a lawfully acquired copy of a work, the user may circumvent the measure in order to ‘enjoy’ the work on what is called ‘relevant playback equipment’. This means that even though the measure as such is protected, the user may lawfully circumvent. The provision raises difficult questions as to which equipment shall be deemed as ‘relevant’. As a point of departure, thhis – of course – is relative to the product in question. During the leigislative process, it became clear that mp3-players generally are to be regarded “relevant” for enjoyment of music bought on a CD. In other words, copy-controls on CDs may lawfully be circumvented in order to convert the music to mp3. It is uncertain, however, how the exception is to be interpreted as to music bought on-demand, where contractual terms usually defines the platform on which the content may be experienced.
The Act contains two further exceptions to the prohibition of circumvention; one concerning research in cryptography and one concerning the rights of libraries and some other public institutions to make use of protected works for conservation purposes and some other purposes.
As required by EUCD Article 6.4, the Norwegian Act also contains an express ‘interface’ with certain copyright exceptions and limitations. The copyright exceptions and limitations covered regard certain uses related to teaching, recording for use health institutions, retirement homes, prisons etc., libraries, museums and archives, disabled persons, ephemeral recordings and public negotiations, document inspection, interrogation and evidence. The option of creating an ‘interface’ for the private copying exception has so far not been used. In accordance with Article 6.4 fourth paragraph, the ‘interface’ shall not apply where a protected work is being 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 (on demand services).
The ‘interface’ places an obligation upon right holders to respect the concerned copyright exceptions and limitations when shaping their technological protection measures. However, the question of how the right holder shall enable such use may be regulated through contract between the parties. If the right holder does not voluntarily enable the use required by the relevant copyright exception or limitation, the user may file an administrative complaint to a specialist Board, appointed by the Ministry. As one of several options, this Board is empowered to create case-by-case permissions to circumvent.
6. Neighboring Rights and Database Rights
According to Sect. 53e, the anti-circumvention protection as defined in Sect. 53 a shall apply accordingly to subject mattes protected by one of the neighboring rights in chapter 5 of the Act, hereunder the sui generis database right cf. Sect.t 43.
7. Technological Protection of Software
The already existing anti-circumvention provision governing computer programs – and reflecting Article 7.1.c of the Software-directive – was not changed but was relocated to the new Chapter 6a (Sect. 53c).
8. Miscellaneous & Controversial Subject
At the time of writing, it is not clear whether the Norwegian implementation will be accepted as a compliant implementation of the Directive.
Author
Thomas Rieber-Mohn
Norwegian Research Center for Computers and Law, Faculty of Law, University of Oslo
E-mail: thomas.rieber-mohn@jus.uio.no
Print
Send to Friend