Download copyright law

Copyright in the Digital Age:
Regulation through Technology
• DMCA and EUCD, recognize a legal status and
explicit legal protection for “technological
measures” and “copyright management
information” hampering unauthorized uses
and determining the conditions for legitimate
use
European Copyright Directive 2001/29
• Article 6(1) of the European Copyright
Directive prohibits the circumvention of
technological protection measures stipulating
that “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”
DMCA
• “No person shall circumvent a technological
measure that effectively controls access to a
work protected under this title” 17 U.S.C. 1201(a)(1)(A)
"DRM framework"
• In this new legal framework, the technological
protection measures have found formal
recognition replacing the old practical barriers.
This has the relevant advantage that technology
is not subject to any legal limit and can regulate
transactions in a much more powerful way.
• “Digital Rights Managements Systems,”
“Technological Protection Measures,” and
“Automated Rights Management” all refer to
automated systems able to protect and manage,
individually, the distribution of digital works.
• The most recent measures – very effective in
the protection of authors’ rights – have
enhanced the feasibility of new business
models, in particular, enabling rights-holders
to engage in differential pricing according to
the specific uses made of their rights.
However, the application of these measures is
also one of the most troublesome sources of
conflict between rights-holders and
consumers.
• The role technology can hold in protecting
intellectual property varies greatly. It can be
used simply to prevent users from gaining
access or en- gaging in definite uses, like
copying, or it can be used to develop licensing
business models where rights-holders
determine at their own discretion terms and
conditions for access and use of their works
and embed these rules in technical devices.
• Prominent among the problems that may be
connected with the use of these systems is the
fact that any rights a consumer may have under
copyright law could be replaced by unilaterally
defined contractual terms and conditions, in a
sort of commercial agreement between the
parties with a modifying consequence on the
balance of rights. Moreover, these means can
also individually control users’ behavior
presenting a powerful threat to freedom of
expression as well as privacy.
• the copyright law, although carefully worded,
simply cannot be expressed in the kind of
algorithmic language that is required by
computer programs to automate functionality
like printing or copying. This is especially true
of the key concept of “fair use.”
• However, neither copyright law nor contracts can
exercise any actual control over the behavior of
users of content. On the contrary, they rely on
the parties to act within the stated agreement or
law.
• Because digital materials must be mediated
through software and hardware for use, it is
possible to exercise a priori control over access to
and use of the content through that technology.
The nature of the control may or may not also be
expressed in a human-readable user license.
• A wide range of techniques are used in an
attempt to guarantee that only the authorized
user can make use of the content. In general,
it is possible to classify two different kinds of
technological control measures, “access
control” and “rights control”.
• Access control deals with the concept of “who
has access to what,” and includes the type and
number of operations that can be executed by
users. In other words, access control measures
provide a framework for the definition of
authorization policies.
• Rights control limits a user’s ability to exercise
one of the rights of the content owner. These
distinctions imply, for example, that those “who
circumvent a rights control will not infringe the
copyright owner’s rights.
• DRM systems can be characterized by different
technology. Encryption is one of the basic features. It
keeps content secure by scrambling (or “encrypting”) it
and preventing it from being read until it is
unscrambled with the appropriate decryption key.
• However once access is gained, encryption provides no
means of controlling how content is used, so that it
could be copied in the decrypted format or passed
along, together with its decryption key, and accessed
by unauthorized users.
• Digital watermarking is another technique
used to authenticate, validate, and
communicate information in digital media. It
enables identification of the source, author,
creator, owner, distributor, or authorized
consumer of digital content. This protection
system is based on the science of
steganography or data hiding.
• Invisible data or information, imperceptible to
human senses, are embedded in a digital
media but detectable by appropriate software
or devices. In fact, the invisible signal may
include information about the identity of
rights-holders or content providers, a serial
number, the name of the author, or other
information that a particular software or
device could read to establish the exact origin
of the digital data.
• Programs like web-crawlers allow extensive
searches over the Internet for documents
digitally marked, and even though
watermarking cannot control the use made of
digitally marked works nor stop people from
distributing them, unauthorized applications
can be detected. With such evidence, rightsholders are then enabled to sue individuals for
intellectual property rights infringement.
• Finally, another type of protection measure is
constituted by “trusted systems.” These
systems strengthen content protection,
involving both software and hardware in the
control process by building security features
like cryptographic signatures in personal
computers. This solution would probably lead
users to lose control over their machines, but
it would also make copying more easily
controlled.
Users/Consumers
• DRM-controlled applications, in fact, have the
potential to formulate rules and to enforce
contractual conditions locking content beyond its
copyright period or disrespecting existing
exceptions, such as the right to make copies for
private use, parody, quotation, scientific or
teaching purposes. Furthermore a DRM enforced
contract is often realized on unfairness in the
process of contract formation and on unfairness
in the “invisible” contract terms connected with
the use of technological protection measures.
• The perverse consequence of this technology
controlled contract is to preclude the
traditional copyright balance between rightholders’ interests on the one hand and the
interest of users and society on the other
hand. A traditional balance that has been a
part of Anglo-American fair use doc- trine as
well as of the copyright exemptions in
European copyright law.
• DRM, de facto, could also be seen as the
imposition of “unilateral[] contractual terms
and conditions. Consumer protection
measures could play a useful role in
reconciling the interest of intellectual property
rights- holders and users.
• There is an essential contradiction: if the
technological measures against copying are legal,
and, at the same time, the private copy is legal
too, what kind of solution is possible?
• “some types of technologically-enforced rights
transactions supersede the limits of fair use and
the first sale doctrine.”
• DRM, when seen as a contract, could be used to
protect content that is not subject to intellectual
property rights protection.
• In general, a content transaction could be
identified as a license or a sale.
• However, the main difference is that in the
first case the content transaction falls under
contract law while in the second it falls under
copyright law.
• Vendors, usually, prefer license agreements because
they allow to avoid the first sale or the exhaustion
right, imposing terms and limitations on consumer’s
use.
• However, the main issue is to decide if DRM could be
seen as a contract between buyer and seller.
– If so, in the U.S. systems, federal copyright law is not
involved because the relation is based on contract law. This
also implies that, after the expiration of copyright, the
right-holder would no longer have any right under
copyright law, but the contract could still be effective and
enforceable despite the expiration.
• On the other hand, in the EC system, the
tension between contract law and copyright is
less obvious, because in Europe the statutory
regulation of contractual practices in the
matter of copyright is not unusual, even if
freedom of contract is the general rule while
contractual restraint is the exception.
• copyright exemptions and usage con- tracts is
still quite ambiguous
• there is an increasing trend within the market
to create private copyright protection through
contract.
• some commentators underlined that also
copyright law can contribute to setting a
standard of consumer protection, even if
copyright law is not explicitly intended to
protect consumers.
• US Digital Millennium Copyright Act includes provisions
stipulating exceptions to the protection of
technological measures for reasons of privacy or
parental control, provisions that are undoubtedly
consumer-oriented.
• Art. 6.4 of the EUCD can be interpreted to serve some
consumer interests because it encourages right-holders
to voluntarily adopt any measure deemed necessary
“to make available to the beneficiary of an exception or
limitation..., the means of benefiting from that
exception or limitation...” and invites Member States to
ensure compliance.
• As observed by the Bureau Européen des
Unions de Consommateurs (BEUC), the
current course of DRM development “seems
to aim at creating a new relationship between
right-holders and consumers, with altered
consumer rights, freedoms and expectations
and towards the general re- placement of
copyright law with contract law and codes.
• The issue is directly related to cases in which the
contract is shaped not as the consequence of
negotiation between parties, but rather as a form
of imposition of unilaterally defined contractual
terms and conditions.
• In the common law systems there is in force the
“doctrine of unconscionability” with the effect of
extending the protection of weak contractual
parties as far as possible, giving judges the power
to determine boundaries of this remedy.
• EC framework is based on a set of rules
primarily incorporated in the European
Community Council Directive on Unfair Terms
in Consumer Contracts. Specifically, a term is
considered unfair if, contrary to the
requirement of good faith, it causes a
significant imbalance in the parties’ rights and
obligations under the contract, to the
detriment of consumers.
• Also the Distance Contract Directive and the
Electronic Commerce Directive could be applied
to products and services offered through on-line
contracting and that may include a DRM system.
• Both Directives, in fact, include transparency
provisions that oblige the provider to comply
with the requirements relating to the such
information about the main characteristics of the
goods or services, the prices, the right of
withdrawal, the contract terms and the general
conditions.
• iTunes service enforces its standard contract
terms by means of a DRM systems called
“FairPlay” and, according to the terms of
service, the provider reserves the right, at its
sole discretion, to modify, replace or revise
the terms of use of the downloaded files.
• This kind of unilaterally imposed changes in conditions of
use on legitimate downloaded files, can be enforced just by
changing the DRM. Well, in the EC market, these kinds of
terms are prohibited by law because unfair. In fact,
according to the Directive 93/13/EEC on unfair terms in
consumer contracts, the case could be included in the
indicative and non- exhaustive list of the terms which may
be regarded as unfair, reproduced in the Annex to the
Directive. Explicitly, the Directive talks about terms which
have the object or effect of “enabling the seller or supplier
to alter the terms of the contract unilaterally without a
valid reason which is specified in the contract” or of
“enabling the seller or supplier to alter unilaterally without
a valid reason any characteristics of the product or service
to be provided”
• EC consumer protection regulatory framework
has been enriched with the directive on Unfair
Commercial Practices (2005/29) concerning
unfair business-to-consumer commercial
practices in the internal market. Directive
concerns business-to-consumer transactions
whereby the consumer is influenced by an unfair
commercial practice which affects decisions on
whether or not to purchase a product, on the
freedom of choice in the event of purchase and on
decisions as to whether or not to exercise a
contractual right.
• Since technological standards constitute a
form of regulation that shapes markets and
market behavior”, regulators and policy
makers might also be able “to protect
consumer interests in on-line markets by
focusing on the content of the technical
standards that define the architecture of online markets”