English
1. Introduction
The Copyright Directive, including the provisions regarding technological protection measures that control access to copyrighted works, was implemented into the Danish Copyright Act on
The new national rules on technological protection measures were inserted into a new chapter 6 a of the Copyright Act covering the §§ 75 b – e. This chapter also contains the new provisions regarding electronic rights-management information (§ 75 e).
2. Prohibitions
The new provisions of the Danish Copyright Act prohibit both direct acts of circumvention (“anti-circumvention” provision) and acts preparatory to circumvention, i.e. supply of circumvention devices and services (“anti-trafficking” provision).
The anti-circumvention provision, § 75 c (1) of the Copyright Act, prohibits circumvention of “effective technological protection measures” without the consent of the rightholder.
The anti-trafficking provision, § 75 c (2) of the Copyright Act, provides that it is not permitted to produce, distribute, sell, advertise, etc. circumvention devices, if they
(i) are promoted, advertised or marketed for the purpose of circumvention of effective technological measures;
(ii) have only a limited commercially significant purpose or use other than to circumvent effective technological measures; or
(iii) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of effective technological measures.
Section 75 c (3) of the Copyright Act provides that the anti-trafficking provision in § 75 c (2) applies correspondingly to services. This means that persons or firms that offer help for others to circumvent a technological measure will become liable to the same penalty as those who produce, distribute, sell or advertise circumvention devices. According to the explanatory memoranda with the bill implementing the Directive, this will probably include the situation where a person makes instructions accessible from his website that explain how to circumvent a technological measure.
Section 75 c (1)-(3) of the Copyright Act copies Article 6 (1)-(2) of the Copyright Directive almost verbatim.
3. Definition of Technological Measures
Section 75 c (4) of the Copyright Act defines “effective technological protection measures” as “any effective technological measures that, in the normal course of their operation, are designed to protect works and performances and productions, etc. protected under this Act.”
In order to fall under this definition, a technological measure must restrict acts that are covered by the exclusive rights given to the rightholder under the Copyright Act. Those are the acts of reproducing a work and of making it available to the public, whether in the original form or in an amended form, in translation, adaptation into another literary or artistic form or into another technique.
A technological measure is protected even when it blocks acts covered by the exceptions in national copyright law; see below under item 6.
Conversely, the prohibitions do not cover situations where a technological measure has been used to hinder or restrain usage that is not relevant under the Danish Copyright Act. The explanatory memoranda give browsing on the internet and personal appropriation of a work, including cracking of the region control mechanisms of DVDs, as examples. However, the final decision on this issue, of course, has to made by the European Court of Justice The explanatory memoranda add that it is also allowed to crack a code in order to play a work on the machine or with the software which one has available, for instance, with the open source operating system Linux. But it is not allowed to crack a code in order to make a copy of the work.
The fact that it is not a criminal offence to circumvent a code for the personal appropriation of a work indicates that access control devices are not protected under the Danish Copyright Act. This is also supported by the fact that an “access right” is not among the exclusive rights given to the rightholder.
Naturally, the prohibitions in § 75 c do not extend to situations where a technological measure is used in connection with non-copyrightable material. This includes situations where the copyright has expired and the work has fallen into the public domain.
It should be noted that not only technological measures that control the usage of copyrighted works are protected, but also measures that block the usage of material protected by the neighbouring rights. However, computer programs are not covered by § 75 c, but by 75 b; see below under item 8.
4. Effectiveness
Only “effective” technological measures are protected. This requirement is not developed further in the new provisions. But according to the explanatory memoranda copy control mechanisms and the like that are incorporated in works in digital form must achieve the protection objective, and measures which are not really effective will not qualify for protection.
It remains with the courts to make the final decision as to whether a technological measure qualifies for protection in this respect.
5. Encryption Research
Section 75 c (6) of the Copyright Act explicitly provides that the provisions on technological protection measures “shall not prevent research into cryptography.” This reservation copies the Copyright Directive’s preamble, recital 48, almost verbatim.
Thus, it is allowed to crack effective technological measures and to produce circumvention devices within the field of research into cryptography. The explanatory memoranda explain that research institutions may teach cryptography and publish their research achievements.
6. Exception Procedure
Circumvention and trafficking in circumvention tools and services is not tolerated, even when the purpose is to enable usage covered by an exception under national copyright law.
To allow the proper exercise of certain exceptions (listed below under item 7), the new § 75 d (1) of the Copyright Act provides that the Copyright License Tribunal may, upon request, order a rightholder who applies technological measures to make such means available to a user which are necessary for the latter to benefit from the exception.
The explanatory memoranda provide that the Tribunal may decide on the conditions for the use, including whether the rightholder must hand over a copy in analogue or digital form which is not blocked by a protection measure. Alternatively, the Tribunal can direct the rightholder to give up codes, keys, equipment for decryption and the like. The explanatory memoranda mention that the Tribunal may attach importance to whether real negotiations have taken place between the users and the rightholder.
Section 75 d (1) further provides that if the Tribunal upholds the user’s contention and that if the rightholder does not comply with the order within 4 weeks from the decision of the Tribunal, the user may lawfully circumvent the effective technological measure.
The latter may, however, be foreseen not to be of much worth for a user who has the Tribunal’s word that the technological protection measure should be removed. Because trafficking in circumvention devices and offering circumvention services is forbidden, there will be no (lawful) tools or services to this effect on the market.
Another problem with the exception procedure seen from the users' perspective may be the fact that the Tribunal is not a new institution. The Tribunal is an expert organ which has for many years adjudicated conflicts within areas with volumetric use of works, like in the radio, television and cable distribution areas, and the Tribunal has until now primarily issued decisions regarding remuneration to rightholders. Therefore, it may be questioned whether the Tribunal possesses enough expertise to adjudicate the new type of conflicts regarding technological measures
The Tribunal has not yet made any decisions under the new rules.
Both rightholders and users can bring a case before the Tribunal. The Tribunal’s expenses are, as a starting point, paid equally by the parties. The decisions of the Tribunal may be appealed at the courts. Commencement of legal such proceedings does not have delaying effect for a decision by the Tribunal. It is an open question whether a case regarding technological measures may be brought directly before the courts, or whether the Tribunal must adjudicate it first.
Use of the exception procedure is restricted in certain ways. Section 75 d (1) provides that the Tribunal’s jurisdiction shall extend only to users with legal access to the work. This requirement means, for instance, that the user must have legally bought the work or must have made an agreement regarding its usage.
The explanatory memoranda mention, however, that often license and subscription agreements have stipulated the conditions for the user regarding technological protection measures. As the Copyright Directive prescribes, § 75 d (3) of the Danish Copyright Act provides that the authority of the Tribunal shall not apply to situations where works are “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.” In short, the exception procedure shall not apply when the use of exceptions has been contractually agreed upon, for instance, via a contract over the internet where the user has clicked “I agree” to gain access to the work. For users this is another great flaw of the exception procedure.
Finally, a case cannot be brought before the Tribunal unless the parties have made reasonable attempts to make an arrangement. It is expected that the rightholders and the user organizations enter into general agreements regarding the question of handling technological protection measures.
7. Exceptions Included under and Excluded from the Exception Procedure
As mentioned above, the exception procedure, i.e. the Copyright License Tribunal’s jurisdiction, does only apply to certain exceptions to the rightholders’ copyright. Section 75 d (1) lists the exceptions of the Copyright Act which are included:
§ 15 regarding recording of broadcasts for use during a short period in hospitals, prisons, etc.;
§ 16 (1) regarding reproduction within archives, libraries and museums;
§ 17 (1)-(4) regarding reproduction for visually handicapped and hearing-impaired persons;
§ 18 (1) and (2) regarding production of anthologies for educational use, etc.;
§ 21 (1)(ii) regarding public performances in connection with education;
§ 23(1) regarding use of works of fine art, etc. in critical or scientific presentations;
§ 26 regarding use of public proceedings, etc.;
§ 27 regarding public access and access to public record offices;
§ 28 regarding use of works in connection with judicial proceedings and proceedings before administrative tribunals, etc.;
§ 31 regarding ephemeral recordings;
§ 33 regarding recording of broadcasts for use in the National Media Collection; and
§ 68 regarding remuneration for use of sound recordings in broadcasts on radio and television, etc.
Not all of the exceptions of the Danish Copyright Act are mentioned. For instance, § 12 regarding copying for private use and § 22 regarding quotations are not included.
Section 12 of the Copyright Act provides that anyone is entitled to make, single copies in digital form of works (excluding computer programs and databases) that have been made public, if this is done exclusively for the personal use of the copying person himself or his household. However, as a rightholder cannot be directed to assist a user to exercise his right of copying for private use, the right may become illusory (Some scholars have questioned whether the “right” of copying for private use is an affirmative right or just works as an objection against infringement –in other words is the right a sword or a shield? However, it seems to be generally accepted that the latter is the case.
). The exception cannot be exercised if a technological measure blocks private copying, because circumvention is prohibited.
Section 22 of the Copyright Act states that “a person may quote from a work which has been made public in accordance with proper usage and to the extent required for the purpose.” Likewise, this right of quotation may be void if for instance a technological measure blocks the “cut”, “copy”, and “paste” functions of a word processor. The author fears that such reductions in the possibility for research and critical treatment of other persons’ works might stifle the freedom of speech.
8. Computer Programs
National rules regarding technological measures to protect computer programs were introduced in the old § 78 of the Danish Copyright Act with the implementation of Article 7 of the 1991 Software Directive. There have been no court decisions regarding the provisions so far.
When the 2001 Copyright Directive was implemented into national law, the old provision in § 78 was moved to the new chapter 6 a of the Copyright Act which contains the other rules regarding technological protection measures.
However, computer programs are not included under the general provisions on technological protection measures but are given a somewhat weaker protection in an individual section, namely the new § 75 b.
The new § 75 b provides that it is not permitted to market or for commercial purposes possess the means of which the only purpose is to facilitate the unlawful removal or circumvention of technical measures which are used to protect a computer program. Thus, the protection of computer programs does not cover the act of circumvention itself but only acts of trafficking in circumvention tools.
9. Sanctions
Breach of the abovementioned rules regarding technological measures is sanctioned as follows: Anyone who intentionally or by gross negligence violates § 75 b regarding computer programs or § 75 c regarding technological measures applied to other copyrighted works, or performances and productions. is liable to a fine, cf. the new § 78 of the Copyright Act. The criminal offence is not sanctioned with imprisonment.
The courts have not yet tried any cases under § 78 cf. §§ 75 b or 75 c.
In addition to penal liability there is a possibility for sanctions under civil law in the form of a claim for damages from the rightholders. It may, however, by difficult for the rightholders to prove the extent of their losses in cases where a technological measure has been circumvented or tools to this effect have been offered for sale.
Finally, the rightholders may issue for an injunction forbidding users to circumvent a technological measure or to provide tools or services to this effect.
10. Revision of the National Rules
It must be noted that the new § 89 (3) of the Danish Copyright Act provides that a proposal for revision of §§ 75 c and 75 d shall be submitted to the Parliament at the latest in the year 2005-2006. This deadline allows the expected report from the EU Commission in December 2004 to be taken into consideration.
11. Blank Tape Remuneration
In order to compensate rightholders for the legal copying for private use (see above under item 7) a blank tape remuneration scheme was introduced in
As mentioned above, technological measures may, however, hinder private copying. This situation is anticipated by the Copyright Directive which provides that the “level of fair compensation should take full account of the degree of use of technological protection measures.”
The explanatory memoranda with the bill with the latest national amendment of the Copyright Act, following the implementation of the Copyright Directive, provide that it is still too early to measure the effect of the new technological measures on private copying, but that the blank tapes scheme should be revised in the year 2005-2006, i.e. at the same time as the revision of the provisions on technological protection measures (see above under item 10).
Author:
Terese Foged
Attorney-at-Law, LL.M.
tf@lrlaw.dk
Lassen Ricard law firm
Last update:
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Also available on the legislation page is the text of the provisions (English and Danish) and the explanatory memoranda (Danish only). On the Danish part of the legislation page are also some interesting (Danish) links concerning this topic. Click here for the legislation page |
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