Anticircumvention Rules In the U.S. and the EU: Introduction, Comparison and Some Remarks 

 

I.       Introduction

 

A.   A Little Caveat at the Beginning

 

Today, it seems that the copyrights in most marketable media are owned by publishers, not by the authors any more[1]. This must lead to a shift in the economic interests in the works and the policies of copyright: authors get a part of the revenue generated by the original work and its derivatives, but once the rights are assigned to the publisher, it is him who has the main interest in controlling the use of the work in order to exploit it commercially as far as possible. At this later stage, there can be a conflict of interest between the author and his publisher: while the author would prefer that the work is disseminated as widely as possible (for reasons as varied as enhancing his reputation, stirring a public controversy or just to spread his views and ideas), the publisher will try to maximize profits and accordingly choose the channels of distribution, the time and forms of the publishing, whom to allow to make which derivative works etc. The effect of this change in the industry seems not to have been studied intensively yet. But to get away from the “romantic” idea of a copyright centered on the “poor” individual author, I will use the term of copyright “owner”.

 

 

B.   The Development of Media Distribution in Cyberspace

 

Technology and the internet in special make it possible to distribute all kinds of information, freely worldwide at a very low cost. But technology has also developed a range of mechanisms to control the dissemination of information on the internet. Digital Rights Management Systems (DRMS) provide the infrastructure the owner needs to control the use of his work when it is accessed and distributed online. Basically the main functions of DRMS are:

 

-         controlling access to the work

-         preventing unauthorized copying

-         identifying the works and those who own copyright in them

-         enabling contracting for the use of the works.

 

DRMS use a variety of technologies to protect the copyrights of the owners, including steganography (digital watermarking for the authentication of the works), encryption and electronic agents to monitor the usage of the media.[2] The systems currently available are admittedly in an early stage, but there is push in the software industry to develop complete packages.[3]

 

Although the claim is that DRMS are all about protecting the owners’ copyrights, it should be borne in mind that DRMS can be used to limit access to works that are not copyrighted.[4]

 

 

 

II.    The Dilemma of Protecting Digital Works: “All or Nothing At All”

 

Most scholarly discussion is about the fact that the AP do not duplicate Copyright law. That they give the owners of DRMS more control, that the traditional exemptions of copyright like fair use are not guaranteed etc. Is this not asking too much from the designers and operators of DRMS? Copyright is extremely subtle and what is allowable use of the work and what not varies from case to case: to use a part of a work might be legal parody in one case, a legal quote in the other case, copying that is only “de minimis” in yet another case. But just a tiny change in the circumstances can make similar uses illegal in other cases. No DRMS can recognize what is allowable use and what not. “Technology – at this stage – is simply too crude to accommodate all the subtleties of the law”[5]. Given the impossibility of distinguishing between permissible and infringing uses, a DRMS will have to block use all use that does not comply with the access conditions, whether the use would be permissible or infringing under copyright law. The owner will make sure that the work is protected in the best way technically possible. Especially he will use all possibilities to prevent copying of the work. It is an eminent feature of digital media and information in general that they can be copied without incurring a loss of quality, with low cost and without limitations as to the quantity of the copies. Additionally, in today’s digital environment, once an attractive work is available in a digital version that can be copied, there is a real possibility that it will be distributed, world-wide, in period of time so short that the owner does not have a “head start” in distributing it, and through channels that cannot be controlled effectively any more (like file-sharing networks). This means that the work is in a kind of “factual public domain” or “factual commons” where anybody who wants a copy of the work (and who doesn’t care about copyright implications) can find it easily and use it without paying any royalties.

 

Given this threat, which increases with more and more media being available in digital format and more and more consumers having the necessary technical equipment (especially broadband internet access) to make extensive use of this “factual commons”, it is not difficult to imagine that both traditional media sales and sales of digital media through the internet could become “endangered species”. After all, who buys a music CD in the shop or music files from an online service if he gets the music for free, with the ease of a few mouseclicks and sometimes even before the music is released officially? Economically speaking, the works become a public good and it is impossible to generate income from them – thus nobody will invest time and resources in the creation and distribution of works. This is the market failure that copyright seeks to redress: owners are given exclusive rights over the use of their works so that they can reap the full benefit of the value his work gives to society. This way, the investments needed to produce works will raise to an optimal level. The owner should be given perfect control over the use of the work – then he can internalize the external effects of it. In the digital world, the owner is a loser: everybody is a potential pirate who can make perfect copies and distribute them worldwide at no cost. Thus, so goes the argument, the owners need more protection, some more weight on their side to set the scales even again. In the digital world, it seems possible to improve the protection of the owner without burdening the consumer too much because the transaction costs are so low that the owners and consumers can get into contact and contract for each use of the work cheaply and easily: through the use of technology, the “play” button gets a second function as the “pay” button.[6]

 

This calls for an absolutely watertight protection of works in the digital environment. If sales of works are threatened, the main source of income for owners and thus (at least in the model of creation that underlies today’s copyright act[7]) the incentive to create work is lost. Society would suffer hugely culturally as fewer works would be created.

 

But on the other hand, the widespread dissemination of works in the public and the access of interested individuals to the work are also recognized goals of copyright policy. Allowing owners to lock in their works in electronic safes by giving them means for watertight protection could lead to too high costs of access to the works. And there are valid economic arguments against giving works or information in general too much protection: information is the classical non-rivalrous good. Often it gains in value when combined with other information and spread to the broadest audience possible.[8] This point of view calls for fewer exclusive rights of the owners and – if lowering copyright protection is not possible – then at least they should not be given more control over the works by protecting DRMS technologies!

 

How should and could the legislator react to this dilemma and those conflicting interests? In extremis, he has two possibilities:

 

a) value the access to and the dissemination of works of authorship higher than the “incentive to produce works”-argument. This would mean not to give DRMS the protection of the law or even – in the contrary – forbid them completely. A less radical approach – forbidding to block the use copyright allows only – seems possible only if technology makes a huge step towards more intelligent DRMS that can distinguish between use that infringes copyright and use that does not.[9]

 

b) allow the blocking of any use for the sake of giving the owners as much control over their works as possible in the hope that this will provide incentive to the creation of new works and to the development of new business models for the distribution of digital media.

 

As mentioned, due to the lack of sufficiently sophisticated technology and the “all or nothing” character of protection, one should be skeptical about the possibilities of finding a good and practicable compromise between those two extreme poles. But obviously, legislatures both of the EU and the US were not deterred by this, as both have enacted legislation protecting digital works. This paper will deal only with the provisions that “protect the protection”: the provisions that are triggered when a consumer does not want to comply with the conditions the DRMS imposes on him in order to gain access to the work and finds a way to circumvent the technological protection.

 

III.  The Reaction of Legislature

 

A.   The Empire Strikes Back: Publishers Push for More Protection

 

The publishing has seen the answer to the new threats of cyberspace in improving technological protection of the works: “The answer to the machine is in the machine”[10]. This push toward reliance on technology instead of law has been described as a private system of regulation through the design of the architecture of the systems used to disseminate information.[11]

 

Given the fact that many technologies of this kind have been hacked, the industry has called upon legislators to give them better protection.

 

The first steps to introduce legal protection of technological measures seem to have been taken in the U.S, which doesn’t seem surprising as the U.S. leads the world in the production of mass marketable content. In 1995 the Information Infrastructure Taskforce issued the “White Paper” with proposals concerning the protection of technological measures. These were included in the National Information Infrastructure Copyright Protection Bill of 1995.[12]

 

At about the same time, the EU Commission issued its “Green Paper” on the issues of the Information Society [13] and its follow-up[14].

 

Parallel to these actions, the WIPO prepared the Copyright Treaty of 1996 (“WCT”). [15] Art. 11 WCT requires the Contracting parties to protect:

 

“effective technological measures that are used by authors 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 the authors concerned or permitted by law”.

 

The requirements for the measure to be protected thus are:

 

-         Effective measures

-         Used by authors

-         To exercise copyright

-         Restrict acts not authorized by the authors or required by law.[16]

-         Not required is the protection of technologies that merely control the access to works, since controlling access is not an exclusive right of the owner.

 

 

The treaty allows to give protection to more measures: it defines minimal standards of protection only which can be extended by national legislators. Both the EU and the U.S. have opted for a “WIPO plus” version that goes beyond the minimal protection required by Art. 11.

 

The U.S. have enacted the Digital Millennium Copyright Act (“DMCA”) which introduces § 1201 into the Copyright Act.

 

The EU uses three legal instruments to protect technological measures:

 

-         enacted first was the Directive on the legal protection of computer programs[17]

-         second came the Directive on the harmonization of certain aspects of Copyright and related rights in the Information Society (the “Directive”)[18]

-         the most recent addition will be the Directive on the legal protection of services base on, or consisting of, conditional access (“Conditional Access Directive”)[19].

 

B.   The Result: Multiple Layers of Protection

 

The trend towards technologisation of the protection of works has long term impacts on copyright law. First it adds an additional (factual) layer of protection on top of the protection provided by copyright law. Second it facilitates the use of contract as the primary means of regulating access to and use of copyrighted works, which has the effect of marginalizing traditional copyright laws and its concepts in the digital environment.[20]

 

The anti-circumvention provisions add yet another layer of protection to the works: they protect the protection of the works that are protected by copyright and contract.

 

As a result a copyrighted work can be protected by the following layers:

 

-         intellectual property in the content (copyright, neighbouring rights, database and software protection)

-         contractual restrictions imposed by user licenses

-         technological measures

o       access control

o       copy protection

o       regional coding

o       monitoring (“phone home systems”), watermarking

-         legal protection of technological measures (anti-circumvention provisions), enforcement by law of contractual agreements[21].

 

Is this protection justified or a judicial overkill?

 

Before this legislation is analyzed more closely, it is appropriate to decide on which criteria to use for the analysis. It seems most useful to focus on the points that have drawn most criticism in academia.

 

IV.The Critique of Anti-Circumvention Protection

 

Academia on both sides of the big pond has responded in almost the same way to the respective legislation:

 

-         “The Directive is a badly drafted, compromise-ridden, ambiguous piece of legislation … The European Court’s decision raises the intriguing prospect of one or more disgruntled member states challenging the validity of the Copyright Directive. Wouldn’t that be a perfect way of getting rid of this monstrosity? I hereby offer my services to any Member State pro bono.”[22]

-         The anti-circumvention provisions of the DMCA “are unpredictable, overbroad, inconsistent, and complex. The many flaws in this legislation are likely to be harmful to innovation and competition in the digital economy sector, and harmful to the public’s broader interests in being able to make fair and other non-infringinng uses of copyrighted works.”[23]

 

These two opinions are a pretty representative sample of the avalanche of scholarly writing the provisions have triggered. The general concern is that there is a danger that the provisions further the technologisation of copyright (the shift from “code” to “code”) and this will have detrimental effects on knowledge flows, lower the quality of the social discourse, reduce “digital diversity”, harm scientific research and impoverish culture as a whole. [24]

 

How should the provisions be assessed? The critique stresses the point that they do not provide for a duplication of copyright into the digital world. As mentioned supra, this could be the wrong approach – it can be doubted that “digital copyright” should be the implementation of the subtleties of the traditional copyright laws in the digital environment.[25] Maybe the perspective should be shifted completely and the question should be asked whether a completely new regime should be created from the scratch for the digital environment: one that leaves behind the concepts of “copyright” and tries to make rules for “access” to works.[26]  

 

Here the provisions will be discussed using traditional copyright and its values as a criteria.

 

Traditional copyright uses the following tools to achieve the intended balance between the interests of owners and consumers of works:

 

-         definition of rights protected

-         definition of acts that constitute exploitation/use

-         exemptions (fair use)

-         exhaustion rule (first sale doctrine)

-         duration (limited term)

 

In the digital environment, this subtle system can be replaced by a system of total control of a work by the owner: “Copyright today is less about incentives than it is about control”.[27] This view leads to the thought that the critique on the anti-circumvention provisions might not be entirely fair: it has to be taken into account that traditional copyright has given the owners more and more rights. Traditional copyright might therefore not be the measure stick for assessing the anti-circumvention provisions and the access they allow. Today’s copyright might already have lost its traditional balance of interests. Additionally there is the fact that the digital environment is so different from the analog world that maybe the question asked should be whether it wouldn’t be better to build a completely new regime for it instead of trying to make a 1 to 1 copy of the traditional copyright laws.

 

The anti-circumvention provisions pose problems of their own, that do not arise in traditional copyright law:

 

-         issues with circumvention for legitimate purposes (no general exception, no general fair use exception)

-         “dual use” technologies

-         research focused on technological measures of protection (encryption research)

-         privacy issues due to the possibility of monitoring media use

-         discrepancies due to the fact that circumvention is allowed in certain cases, but it is forbidden to make and trade the tools necessary to make

-         discrepancy between the works that copyright protects and the information that can be protected by technological measures (e.g. works in the public domain, unprotectible subject matter).

 

 

V.   The Anticircumvention Provisions in Detail

1.     In the US: The Amended Copyright Act (DMCA)

 

§ 1201 of the Copyright Act is “fiendishly complicated”.[28] An attempt to crack up this complicated structure looks like this:

 

-         two different technological protection measures: those to control access and those to control use

-         two different rulemaking procedures: the one that matters in this context is the review to be made by the Library of Congressy ever three years

-         seven different exceptions to the prohibition of the different circumventing activities.

 

a)    Right of Access

 

Indirectly, a right of owners to control access to the works is created, which is not recognized by traditional copyright law. If the owner protects his work sufficiently that he comes under the protection of §1201, the user must accept the conditions of access set forth by the owner. He is not allowed to circumvent the protection, even if he can claim fair use of the work under copyright law. Fair use is understood as a defense against a copyright infringement claim, but not against a violation of §1201: “even if fair use exists, fair access does not”[29]. Fair use is an argument only in one of the multiple layers of protection: copyright protection.

 

In effect, prohibiting the circumvention of technological measures that control access is giving the owners an exclusive right to authorize the access to the work.

 

It was never intended by the WCT to introduce such a new right. The protection should be given only to the exercise of the existing rights of the owners.[30]

 

 

b)    Acts forbidden

 

§ 1201 (a) forbids

 

-         the act of circumvention

-         trafficking in circumventing technology.

 

a) Important is first the definition of what circumventing technology is, as this determines the treatment of technology that is capable of infringing as well as non-infringing uses (the crucial distinction in the Sony Betamax case). Technology is prohibited under § 1201(a)(2) if it meets any of the three conditions:

 

-         primarily designed or produced for the purpose of circumventing the technological protection measure

-         only limited commercially significant purpose or use other than to circumvent

-         marketed by the person who traffics in that kind of technology or acting in concert with that person.

 

These conditions exclude usual consumer electronics and PCs. This is made clear by § 1201(c)(3) as well, which provides that manufacturers of consumer electronics, telecommunications equipment and computer products are not required to design the products according to the needs of any technological protection measure (no mandate provision).

 

b) Then the definition of what is a protected technological measure is important to distinguish which works are protected: § 1201 (b)(2)(B) defines that a technological measure only then “ ’effectively protects a right of a copyright owner under this title’ if the measure … limits the exercise of a right of a copyright owner under this title.” It is hard to understand the exact meaning of this: are only the exclusive rights of the owner under traditional copyright meant or does this include the newly introduced right to control the access to digital works as well? It would make sense to interpret this in a way that is compatible with Art. 11 WCT, meaning that only the exclusive rights of a copyright owner are meant. But this does not away the fact  that practically all works and the possible uses are protected by access control technologies that may not be circumvented under § 1201 (a).

 

c) There is no knowledge or intent requirement for the act of circumvention: the consumer who circumvents technological measures in order to obtain unauthorized access to a work is strictly liable.

 

 

c)     Exemptions

 

The Copyright Act contains

 

-         a general exemption permitting circumvention for “particular classes of works” that may be determined by the Library of Congress in the rulemaking procedure under § 1201 (a)(1)

-         several specific exemptions:

o       nonprofit libraries

o       archives

o       educational institutions

o       law enforcement, intelligence and other government activities

o       encryption research

o       reverse engineering to achieve interoperability of software

o       protection of minors

o       protection of privacy

o       computer security testing.

 

d)    Monitoring and Rulemaking Procedure

 

§ 1201 (a)(1)(C) gives the Library of Congress the power of designing all three years “particular classes of works” that can be excluded from the general prohibition of circumvention. The Library has made use of this power for the first time on Oct. 28, 2000[31]. To the disappointment of many commentators, it has defined only two narrow classes of works that will be exempted from the prohibition of circumvention during the next three years period:

 

-         lists of websites blocked by filtering software applications

-         works protected by malfunctioning, damaged or obsolete access control mechanisms.

 

Potentially, this monitoring and rulemaking procedure would allow to change the scope of the protection given to technological measures in a substantial way. But there are two factors from which can be inferred that this will not be the case:

 

-         the Library of Congress has defined its role in a very cautious and narrow way: it deems it not appropriate to implement policy changes but wants to leave this to Congress.[32]

-         Given the “all or nothing dilemma” in protecting digital works, the Library of Congress does not have very much leeway in granting too many new exemptions. Each new exemption increases the risk that works will actually be circumvented and that unprotected copies are put into the “factual commons”.

 

 

e)     Remedies

 

§§ 1203 and 1204 provide both for civil remedies as for criminal sanctions. “Any person injured” by a violation of the provisions can bring a civil action in court, which seems to imply that the person other than the owners may do so. It is however not easy to find such persons: one can think e.g. of licensees who do not have exclusive rights and thus no standing to sue under copyright law.

 

2.     in the EU: the Copyright Directive

 

First it has to be emphasized that the Copyright Directive is not directly applicable law: it has the goal to harmonize the law in the EU member states by setting the aims without proscribing the exact means.

 

a)    Access Right?

 

The Directive does not mention access or the protection of devices that protect access to works. On the contrary, Art. 6 (4) obliges the member states to take some steps to ensure access of the beneficiaries of an exception or limitation provided for in the national law (meaning in traditional copyright law) to the work. This provision however is everything else than clear cut:

 

-         the first step is that the member states should encourage the owners to provide for “voluntary measures, including agreements between rightholders and other parties concerned” to make the exceptions[33] to the anti-circumvention provisions effective.

-         if this fails, the member states “shall take appropriate measures to ensure that rightholders make available to the beneficiary of an exception or limitation provided for by national law … the means of benefiting from that exception or limitation, to the extent necessary to benefit from that exception or limitation and where that beneficiary has legal access to the protected work or subject matter concerned.”
This should be understood as an obligation for the owners to give actual access to those consumers who can claim one of the exemptions – but it is far form certain that it can be understood in this way as well!

-         But the importance of such an obligation is greatly reduced by Art. 6 (4) al. 4, which provides that al. 1 and 2 are not applicable to works “made available on agreed contractual terms to members of the public on demand in such a way that member of the public may access them from a place and at a time individually chosen by them.” The relevant recital 53 does not provide more of a clue: it only mentions that al. 4 is about “interactive on-demand services”. But nobody seems to know which services exactly are meant.[34] DRMS fit neatly into that definition: they are accessible from everywhere at a time individually chosen by the consumer and they make their content available on the condition that the consumer accepts the contractual terms. So the whole idea of enforcing the exemptions is jeopardized. It will be up to the courts to clarify this issue.

 

b)    Acts Forbidden

 

Similar to the U.S. the EU forbids in Art. 6 of the Directive the[35]

 

-         act of circumvention itself, which is defined as 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.” Interestingly intention is required – this is attributed to the fear that otherwise consumers who commit “innocent” acts of circumvention (like using a deep link into a protected website) are not made liable.

-         Trafficking in circumventing technology (with a wording quite similar to the U.S. provision).

 

c)     Exceptions

 

The Directive does not set up its own regime of exceptions but refers back to the list of exceptions of the copyright law (Art. 6 (4) al. 1). But in al. 2 it makes a special reference to the private copying exception: the member states are allowed (but not obliged) to take measures to enable the consumers who, under the applicable national copyright law, have the right to make copies of a work for private use, to benefit from that exception. The means by which this goal can be achieved are not specified.

 

The exceptions apply only to the prohibition of the act of circumvention, not to the prohibition of trafficking in circumvention devices (Art. 6 (4) al. 1 refers expressly only to paragraph 1), meaning that practically, the only way of legal circumvention is to do it yourself –  there will not be tools available on the market legally.

 

 

d)    Monitoring and Amendment Procedure

 

Art. 6 (4) of the directive tries to encourage private rulemaking. This could be a good solution. But it will work only if the parties concerned have equal bargaining power – meaning that the consumers (supposedly represented by consumer protection groups) need to rely on the threat of the member states to make use of their power to enact mandatory rules. But this threat lost a lot of its credibility due to the fact that the whole system is jeopardized by the unclear Art. 6 (4) al. 4. The private rulemaking idea will gain importance only after courts have given the provision a clear-cut and much more limited meaning.

 

But fortunately the Directive doesn’t rely on the private rulemaking only. Art. 12 sets up a monitoring process to be carried out by the commission. Art. 6 is referred to expressly and the Commission has the duty to examine in particular whether that article confers a sufficient level of protection and whether acts which are permitted by law are being adversely affected by the use of effective technological measures. The commission can then submit proposals for amendments to the Directive.

 

 

e)     Remedies

 

The Directive only states that “adequate” legal protection must be provided for the technological measures. The member states are completely free to chose whether they want to give remedies of criminal, civil or administrative law. However, under some title they must give the owners the possibility to recover for damages suffered (Art. 8).

 

VI.Comparison and Assessment

 

 

Following the WCT, both the EU and the US have adopted the view that the owner will be worse off in the new millennium than he was in the last one. The legislation tries to protect the exclusive rights copyrights gives the owners in the digital environment as well as possible. Through the anti-circumvention provisions the owner is given the power of very fine-grained control over the use of his work through using DRMS. How do the two legislators approach this issue and try to preserve the balance of interests traditional copyright makes?

 

-         The first observation is that both have gone way beyond the protection required by Art. 11 WCT, that requires only “adequate protection”. This is only consequent given the purpose of giving technological measures strong protection.

-         Both have chosen to try to balance the protection of technological measures with the traditional exemptions copyright law gives to the public. This makes for many difficulties in the interpretation of the provisions. It would have been better if the legislators would have waited until the technology of DRMS is so far that the exemptions can be accommodated (“intelligent” DRMS). Due to the “all or nothing” nature of the protection of digital works, circumvention of protecting technologies must be extremely limited. It seems therefore right that even in the case that an  exemption is applicable, the trafficking in tools for circumvention is forbidden. But it would have been better if the legislators had not allowed circumvention in the first place. It would have been a more efficient measure and more of a “win win” situation for both sides to give the beneficiary of an exemption the enforceable right to receive the information good from the owner. DRMS would allow these transactions with low costs.

-         Both have chosen a technology-neutral approach: the protected technological measures are defined by their purpose, not by specific characteristics like software algorithms, hardware features etc. This is a good choice as it provides for automatic adaptation to the development of technology used for the purpose of protection.

-         Both require a certain amount of effectiveness of the protecting technology. This also introduces an element of flexibility into the provisions as it is not defined what exactly this means and how high the threshold is. This flexibility can be used to limit the scope of the provisions in order to avoid the criminalization of minor infringers.

-         The exemptions made are sufficient to accommodate the most urgent needs of society.[36] Given the “all or nothing” character of the protection of digital works, it doesn’t seem possible to give more users the right to gain access to protected works by circumventing the technological locks, if the protection should be effective at all.

-         The practical importance of the exemptions is dubious: even if certain users are given permission to circumvent the protection, they are not given the tools to do so. Very few of those users will have the ability and a sufficient incentive to do so on their own. They would have to rely on acquiring tools that can do the job easily and cheaply. But the production of and trade of such tools is forbidden. The user is allowed to unlock the door but he is not given the key to the lock.
But this needn’t be a serious threat to the effectiveness of the exemptions: while it is certainly true that very few beneficiaries of an exemption will have the means of hacking an ECMS themselves and will invest resources to do so, the exemptions may still come in very handy. If the copies of the work are accessible where the technological measures have been circumvented, the beneficiaries should be free to use such copies in the way they are permitted to without having to fear charges of (direct or contributory) liability. For example, it should be recognized that a library that qualifies for the exemption is allowed to use a file-sharing network to make use of its shopping right.

-         Both sets of rules don’t make express provisions for the exhaustion rule (first sale doctrine) and for a limited term of controlling a work – leaving it to the courts to find a solution by applying traditional copyright law.

-         Both rules seem to be so unclear and difficult to apply in general that there is considerable uncertainty what is allowed and what not – this could have chilling effects the users. On the other hand, the use of “rubber words” and undefined terms (in the Directive even more than in §1201) gives the courts a lot of leeway in the implementation.

 

In substance, the respective provisions differ only in details. The differences seem to be not related to different policies – both the EU and the U.S. have the same policy on circumvention technology – but to the vagaries of the legislative process. Differences could develop in the future, if the procedures provided for adapting the provisions to changing circumstances are used in dissimilar ways. This could well be the case, given the fact that the EU provisions assign the task of monitoring to the Commission, which claims a leading role in the development of the Community laws, whereas the U.S. has assigned it to the Library of Congress, which has downplayed it role and possibilities.[37]

 

The main difference seems to be the original provisions of the Copyright Directive introducing the concept of “voluntary measures” as a means of private rulemaking and the encouragement of the member states to make the exemptions effective.

 

Both the U.S. and the EU have provided for a kind of “open door” by installing procedures and administrative bodies to monitor the implementation of the anticircumvention provisions and their impact on the industry. In the US, the body entrusted with this task even has discretionary power to introduce the changes in the protection of classes of works it deems appropriate. So it is possible that the protection given to technological measures will be relaxed in the future[38]. However, I am skeptical that this will happen in a significant degree:

 

-         first there is the “all or nothing” factor in protecting digital media, which does not leave much room for allowing more exceptions to the anticircumvention provisions – at least as long as technology does not allow for more fine-tuned control of access.

-         Second there will be effects of path dependency, both in the legislative process and in technology. Once a new regime, a status quo, is established, it becomes very difficult to change it. It takes a concentrated effort by a well organized political force. It is doubtful whether the consumers have this possibility. Even in the age of easy and cheap communications by internet, they have tremendous collective action problems and they don’t have the means for a concentrated lobbying effort.
Technologically, a path dependency problem may arise, as now many “stupid” DRMS are designed and implemented that can be adapted to a new situation only with considerable cost.[39]

 

The assumption is therefore that we will have to live with the fact that DRMS will be used widely by publishing houses and that the technological measures to control the use of the works will enjoy the protection of the law.

 

 

VII.         Possible Scenarios for the Future

 

A.   Failure of DRMS

 

1.     Market Failure

 

DRMS are not sure to catch on in the market. As of today, several publishers of digital content have considerable difficulties in gaining revenue.[40] If technological protection and the use of DRMS will not have significant commercial advantages over business models that do not use these technologies, they will disappear from the market. “If content providers come to believe that a good business model is the best way to protect intellectual property from market-destructive appropriations, perhaps the current debate over the DMCA’s anti-circumvention regulations will seem in time like a tempest in a teapot.”[41]
 

2.     Technological Failure

 

The anti-circumvention provisions will never be respected by every hacker in the world. It is possible that any technology that developed will be hacked somewhere in the world. The tools to hack the technologies can be distributed over the internet as easily as the works whose protecting mechanisms have been circumvented. As it seems impossible to control the entire data flow of the internet, it is a realistic scenario that the anticircumvention provisions will not be effective in providing additional protection for digital works – as little as the other layers of protection.

 

B.   Harmony Through a Divided Internet?

 

Another possible scenario – whose beginnings can be observed today already – is that the internet is developing into two different models that exist side by side:

 

-         a market-based model for commercial content (marketable information and services: Britney Spears music files, commercial databases, periodicals, subscription-financed news services)

-         a non-commercial model, where the need for widespread, fast, cheap and easy dissemination is greater than the need for financial gain (geeks websites, “commons” inspired projects).

 

The first model has yet to prove that it is able to develop and is sustainable for mass media products, but the last model is already very much part of the reality: the internet is not only the home of innumerable geeks but also the dominant medium of communication among scientists. Working papers, drafts and other contributions are published on websites, distributed through discussions lists and specialized distributors like www.ssrn.com. This is a very good example of the concept of “publishing without publishers”, meaning publication of media works without intermediaries. The “official” and commercial printed versions are published only months later and are bought by libraries for archival purposes only.

 

The final remark can be only that almost everything is unclear about the anti-circumvention provisions: the legal details, the actual need for them, their effectiveness. Time will tell whether they matter at all and can stop the threat perceived by the owners. But society needn’t be worse off if the owners loose control over the digital works to a certain degree: the internet is not only a threat to the traditional model of authorship, it is also a new opportunity for the creation of works. And the public is not worse off even if less works are created in total: the availability of the works still produced is enhanced so dramatically that no individual will ever feel a lack of works. The better availability offsets a decrease in the production of rights.

 

 

 

 

 

VIII.       Literature

 

Barlow, 1996,   Selling Wine without Bottles. The Economy of Mind on the Global Net, in:P. Bernt Hugenholtz [Ed.],  The Future of Copyright in a Digital Environment,   The Hague, London, Boston

 

Bing, 2001,   The New or Evolving "Access Right",    in:   ALAI 2001 Congress, New York, June 13-17: Adjuncts and Alternatives to Copyright,   http://www.law.columbia.edu/conferences/2001/program_en.htm 

 

Bloom, 1997,   Protecting Copyright Owners of Digital Music-No More Free Access to Cyber Tunes,    in:   45 J. Copyright Soc'y U.S.A.

 

Bygrave, 2002,   The Technologisation of Copyright: Implications for Privacy and Related Interests,    in:   2002 E.I.P.R. 51

 

Clark, 1996,   The Answer to the Machine is in the Machine,    in: P. Bernt Hugenholtz [Ed.],  The Future of Copyright in a Digital Environment,   The Hague, London, Boston

 

Cohen, 1997,   Some Reflections on Copyright Management Systems and Laws Designed to Protect Them,    in:   12 Berkeley Tech. L.J. 161 (1997)

 

Cohen, 1998a,   Lochner in Cyberspace: The New Economic Orthodoxy of "Rights Management",    in:   Michigan Law Review, 1998, vol. 97, pp.462-563

 

Cohen, 1998b,   Lochner in Cyberspace: The New Economic Orthodoxy of "Rights Management",    in:   97 Mich. L. Rev. 462

 

Cohen, 1998,   Copyright and the Jurisprudence of Self-Help,    in:   Berkeley Technology Law Journal, 1998, vol. 13, pp. 1089-1143

 

Cohen, 1999,   WIPO copyright treaty implementation in the United States: will fair use survive?,    in:   E.I.P.R. 1999, 21(5), pp. 236-247

 

Cohen, 2001,   Information Rights and Intellectual Freedom,    in:   Anton Vedder [Eds.],   Ethics and the Internet, pp. 11-32,   Antwerp

 

Commission of the European Communities, 1995,   Green Paper. Copyright and Related Rights in the Information Society,    in:   COM(95) 382 final

 

Commission of the European Communities, 1996,   Communication from the Commission. Follow-up to the green paper on copyright and related rights in the information society,    in:   COM(96) 586 final

 

Commission of the European Communities, 2002,   Digital Rights. Background, Systems, Assessment,    in:   Commission Staff Working Paper,   SEC(2002) 197 

 

de Werra, 2001,   The Legal System of Technological Protection Measures under the WIPO Treaties, the Digital Millenium Copyright Act, the European Union Directives and other National Laws (Japan, Australia),    in:   ALAI 2001 Congress, New York, June 13-17,   http://www.law.columbia.edu/conferences/2001/program_en.htm 

 

Dommering, 1996,   Copyright Being Washed Away through the Electronic Sieve. Some Thoughts on the Impending Copyright Crisis,    in:   P. Bernt Hugenholtz [Eds.],   The Future of Copyright in a Digital Environment,   The Hague, London, Boston 

 

Dusollier, 1999,   Electrifying the fence: the legal protection of technological measures for protecting copyright,    in:   E.I.P.R. 1999, 21(6), pp. 285-297

 

Dusollier, 2001,   Situating legal protections for copyright-related technological measures in the broader legal landscape: anticircumvention protection outside copyright,    in:   ALAI 2001 Congress, New York, June 13-17: Adjuncts and Alternatives to Copyright,   http://www.law.columbia.edu/conferences/2001/program_en.htm 

 

Ginsburg, 1996,   Putting Cars on the "Information Highway": Authors, Exploiters and Copyright in Cyberspace,    in:   P. Bernt Hugenholtz [Eds.],   The Future of Copyright in a Digital Environment,   The Hague, London, Boston 

 

Ginsburg, 1999,   Copyright Legislation for the "Digital Millenium",    in:   23 Colum.-VLA J.L. & Arts 137

 

Ginsburg, 2000,   Copyright Use and Excuse on the Internet,    in:   24 Colum.-VLA J.L.& Arts 1

 

 

Ginsburg, 2001,   Copyright and Control over new Technologies of Dissemination,    in:   101 Colum. L. Rev. 1613

 

Grosheide, 2001,   Copyright law from a user's perspective: access rights for users,    in:   E.I.P.R. 2001, 23 (7), pp. 321-325

 

Hart, 2002,   The copyright in the information society directive: an overview,    in:   E.I.P.R. 2002, 24(2), 58-64

 

Hugenholtz, 2000a,   Why the Copyright Directive is Unimportant, and Possibly Invalid,    in:   EIPR 11 [2000], p. 501-502

 

Jeanneret, 2001,   The Digital Millenium Copyright Act: Preserving the Traditional Copyright Balance,    in:   12 Fordham Intell. Prop. Media & Ent. L.J. 157

 

Johnston/Patel, 2001,   Anti-Circumvention Provisions fo the Digital Millenium Copyright Act,    in:   671 PLI/Pat 313 (Practising Law Institute)

 

Koelman, 2000,   A hard nut to crack: the protection of technological measures,    in:   E.I.P.R. 2000, 22(6), pp. 272-288

 

Koelman, 2001,   The protection of technological measures vs. the copyright limitations,    in:   ALAI 2001 Congress, New York, June 13-17: Adjuncts and Alternatives to Copyright,   http://www.ivir.nl/publications/koelman/alaiNY.htm 

 

Litman, 2001a,   Digital Copyright,   New York 

 

Lunney, 2001,   The Death of Copyright: Digital Technology, Private Copying, and the Digital Millenium Copyright Act,    in:   87 Va. L. Rev. 813 (2001)

 

Marks/Turnbull, 2000,   Technical Protection Measures: The Intersection fo Technology, Law and Commercial Licenses,    in:   E.I.P.R. 2000, 22 (5), 198-213

 

Nimmer, 2000,   A Riff on Fair Use in the Digital Millenium Copyright Act,    in:   148 U. Penn. L. R. 673

 

Nimmer, 2001,   Back from the Future: a Proleptic Review of the Digital Millenium Copyright Act,    in:   16 Berkeley Tech. L.J. 855

 

Reinbothe/Von Lewinski, 2002,   The WIPO Treaties 1996: ready to come into force,    in:   E.I.P.R. 2002, 24(4), 199-208

Samuelson, 1996,   The Copyright Grab,    in:   WIRED 4.01 Jan. 1996

 

Samuelson, 1999,   Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised,    in:   14 Berk. J.L.&Tech 519 (1999)

 

Samuelson, 2001,   Economic and Constitutional Influences on Copyright Law in the United States,    in:   E.I.P.R. 2001, 23(9), 409-422

 

Stefik, 1997,   Shifting the Possible: How Trusted Systems and Digital Property Rights Challenge Us to Rethink Digital Publishing,    in:   12 Berkeley Tech. L.J. 137

 

Stefik/Silverman, 1999,   The Bit and the Pendulum: Balancing the Interests of Stakeholders in Digital Publishing,    in:   16 NO. 1 Computer Law. 1

 

Waelde, 2001,   The Quest for Access in the Digital Era: Copyright and the Internet,    in:   J. Info. L. & Tech. Feb. 28, 2001

 

World Intellectual Property Organization , 1996,   Copyright Treaty of 1996, document CRNR/DC/94 of 23 December 1996,    in:   http://www.wipo.org/eng/diplconf/distrib/94dc.htm