IP and the Development of Digital Rights Management (DRM) Standards: Co-Existence of DRM and Copyright Limitations

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1 IP and the Development of Digital Rights Management (DRM) Standards: Co-Existence of DRM and Copyright Limitations Paolo Lanteri Assistant Legal Officer Copyright Law Division Port Louis April

2 Digital Rights Management (..) technology to manage the conditions under which copyrighted material in digital form can be accessed. (by thefreedictionary.com) The answer to the machine is in the machine Clark Charles

3 Various functions (I) Access/copy control (technical measures); Identify content in a unique manner (identifiers) and describe it (e.g. identity of right-owner, price) (metadata); Define terms and conditions Rights Expression Languages (RELs) translate them into machine readable instructions) requiring precise vocabulary (semantics) and structure (syntax) (e.g. print, play, payment, time & location)

4 Various functions (II) Authenticate on users and devices and protect content (encryption, cryptographic algorithms); Persistently associate information with content (fingerprinting to extract characteristics of a file with a purpose to match those to an unknow file; watermarks to associate metadata to content in a imperceptible way for usage tracking); Report events.

5 Technological Protection Measure WIPO treaties framework: Art. 11 WCT, Art. 18 WPPT, Art. 15 BTAP Obligations concerning Technological Measures Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by owners of rights 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 them concerned or permitted by law.

6 Technological Protection Measure Define TPM is an hard task: 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 objects of related rights, which are not authorized by the owner of rights or by the law (by Professor Ficsor in Guide to the copyright and related rights treaties administered by WIPO and glossary of copyright and related rights terms) The problematic points for the implementation are: 1- what are the requirements for an effective TPM? 2- what are the rights whose excercise can be protected? (to access? moral?) 3- what is a circumvention? (acts permitted by law / devices and services? 4- how adequate has to be the legal protection of TPM (see below: partially (problems 2 and 4) shared with RMI implementation)

7 Technological Protection Measure TPM: copy control / access control WIPO treaties don t distinguish (extensive number of different options) Effective TPM WIPO treaties don t suggest any criteria to define effectiveness Different implementations: A- legislations that leave the interpretation job to the judges (e.g. DMCA, EUCD, UK) B- legislations that don t include this requirement (e.g. Japan) C- legislations that provide an interpretation (e.g. Holland..if the use of a protected work of the author is controlled by means of an access control or by application of a protection process, such as encryption, scrambling or other transformation of the work or other subject-matter or a copy control mechanism, which achieves the intended protection )

8 Technological Protection Measure Circumvention WIPO treaties don t define the act (reason: rapid technological evolution) Different implementations: A- legislations that don t provide any definition (e.g. EUCD, Japan) B- legislations that provide a detailed definition (e.g. DMCA section 1201(a)(3)(A)) Are the preparatory acts included in circumvention? Excepting some exceptional remarks (e.g. Japan, Australia) the answer is YES (v. Public sphere component: manufacture, importation and distribution of circumvention tools and the offering services for circumvention)

9 Rights Management Information WIPO treaties framework: Art. 12 WCT, Art. 1 WPPT, Art. 16 BTAP Obligations concerning Rights Management Information Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty (or the Berne Convention): (i) to remove or alter any electronic rights management information without authority; (ii) to distribute, import for distribution, broadcast, communicate to the public (or make available to the public), without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority.

10 Rights Management Information Definition of RMI by the Treaties: information which identifies (the work, the author of the work, the owner of any right in the work) (the performer, the performance of the performer, the producer of the phonogram, the owner of any right in the performance or phonogram), or information about the terms and conditions of use of (the work) (the performance or phonogram), and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public.

11 Rights Management Information The agreed statement concerning Article 12 (on Obligations concerning Rights Management Information) of the WIPO Copyright Treaty. [The text of the agreed statement concerning Article 12 of the WCT reads as follows: It is understood that the reference to infringement of any right covered by this Treaty or the Berne Convention includes both exclusive rights and rights of remuneration. It is further understood that Contracting Parties will not rely on this Article to devise or implement rights management systems that would have the effect of imposing formalities which are not permitted under the Berne Convention or this Treaty, prohibiting the free movement of goods or impeding the enjoyment of rights under this Treaty. ]

12 Rights Management Information Numerous and heterogeneous identifiers and services. (need for interoperability) e.g. -ISO _ ISBN, ISSN, ISRC, ISAN, ISTC -ISNI, International Standard Name Identifier (for parties involved in the creation and production of content) -by CISAC CISnet system -ONIX, Online Information Exchange (for licensing and multimedia) -ACAP, Automated Content Access Protocol -MPEG, Moving Picture experts Group

13 13 Digital Rights Management DRM is a system of IT components and services along with corresponding law, policies and business models which strive to distribute and control intellectual property and its rights. TPM + RMI = DRM The answer to the machine is in the machine Clark Charles

14 Concerns with digital lock up focus on the unilateral imposition of terms for the use of content; the denial of the use of content in ways sanctioned by the law; and the control of content in which the underlying rights have expired of perhaps never existed Nic Garnett DRM should restrict acts which are not authorized by the right holder or permitted by the law

15 15 L&Es in a broad sense (1) Limits to the object of copyright protection: ideas, theories, simple data, and fixation requirements; Exclusion of some categories of works (e.g. laws, administrative acts); Permitted uses without authorization and remuneration (e.g. quotation, illustration, news reporting, fair use ); Permitted uses by law with remuneration: mandatory or compulsory licensing system (e.g. private copy + levies, mechanical reproduction).

16 16 Free Uses, different legislative models (2) Criteria: 3 step test rule (BC 9(2), RC 15(2), WCT 10, WPPT 16(2), BTAP 13); (special cases; no conflict with normal exploitation; and no unreasonable prejudice the legitimate interest) based on: - Solid public policy concerns (education, information..): - For small impact on rightholders interest - When burden to obtain clearance cannot be reasonably required e.g. A- provisions addressing specific utilizations (e.g. Directive 2001/29/EC ) B- provisions establishing general criteria, to be used by courts to determine permitted utilizations (e.g. US Fair Use ; UK Fair Dealing )

17 National approaches on the interplay between L&E and TPM Faculty of the beneficiary to access and/or use Obligation of the right holder to make the means available to the beneficiary Prerogative of courts of law Prerogative assigned to an administrative body

18 US Copyright Office triennial rulemaking on DMCA section 1201(a)(1) e.g. jailbreaking of smartphones to make the operating system interoperable with an independently created application (not approved by maker); Using short clips for educational and (new) noncommercial purposes, as long as is for criticism or comment; Software protected by dongles (physical devices that must be attached to your PC to run the software), when doesn t work and too obsolete Cell phones (only used ones) unlock to be used with other carrier

19 Information Society Directive (Article 6.4) I- Promote voluntary measures of rights-owners; IIestablish appropriate measures Privileged exceptions: copying for reprography; by libraries, educational institutions, museums; ephemeral recordings by broadcasters; of broadcast by noncommercial social institutions; for illustration for teaching; for people with disabilities; for purposes of public securityor official proceedings. Beneficiaries do not have a right and distribution of circumvention devices.

20 Information Society Directive (Article 6.4) Regarding private use, States have the power (not duty) to take appropriate measures The regulation does not apply in relation to works supplied online ( making available ) on agreed contractual terms

21 Mulholland Drive Case (French Supreme Court 2006) Although the French copyright provisions allow private copying under certain conditions in accordance with the three-step-test, it is not a sufficient reason to allow the circumvention of the TPM applied in DVDs, since this would create conflicts with the three-step-test

22 Beijing Treaty on Audiovisual Performances Article Agreed statement concerning Article 15 as it relates to Article 13: It is understood that nothing in this Article prevents a Contracting Party from adopting effective and necessary measures to ensure that a beneficiary may enjoy limitations and exceptions provided in that Contracting Party s national law, in accordance with Article 13, where technological measures have been applied to an audiovisual performance and the beneficiary has legal access to that performance, in circumstances such as where appropriate and effective measures have not been taken by rights holders in relation to that performance to enable the beneficiary to enjoy the limitations and exceptions under that Contracting Party s national law. Without prejudice to the legal protection of an audiovisual work in which a performance is fixed, it is further understood that the obligations under Article 15 are not applicable to performances unprotected or no longer protected under the national law giving effect to this Treaty.

23 Beijing Treaty on Audiovisual Performances Article effective and necessary measures (when necessary / necessary effective measures); Priority of voluntary measures; Legal access for the beneficiary is a requirement;,in accordance with Article 13, within commas may extend application of the three-step-test; Open exclusion of public domain Importance of post-adoption statements (v. Switzerland no obligation to provide for any procedure or to establish any organization in order to ensure that beneficiary may enjoy ; Republic of Korea and reaction of the United States of America and European Union)

24 Role of WIPO Legislative assistance Awareness raising Forum for discussion

25 Thank you WIPO Culture and Creative Industries Sector