by
A critical evaluation of the different legal regimes that EU Member States are in the process of adopting to govern technical
protection and copyright management systems
Copyright owners are justifiably concerned about the threat posed by digital technology. Whereas analog technology had previously
hindered the ability to make large numbers of inexpensive, high quality reproductions, in a networked world anyone possessing
widely available digital technology can make virtually unlimited numbers of perfect copies of copyrighted works. However,
the same digital technology that poses a threat of widespread copying may also provide the solution, at least in part.
The new WIPO Copyright Treaty ("WCT")[fn1] that entered into force on March 6, 2002, and the highly controversial Directive 2001/29/EC of May 22, 2001 ("Copyright Directive")[fn2] afford new opportunities to control reproduction and dissemination of copyrighted works and mandate "adequate legal protection
against the circumvention of any effective technological measures."[fn3] Many copyright owners believe that the key to maintaining order on the digital frontier lies in new "technical systems of
protection "
Several EU[fn4] Member States - Austria, Belgium, France, Germany, the Netherlands, Sweden and the United Kingdom have published draft legislation
to implement the Copyright Directive into national law. In other Member States regulation is already underway, and should
be available for public consultation in the next few months.[fn5] Given the speed with which Member States are moving to adopt technical protection legislation, one might ask whether a number
of important questions have been adequately considered. In particular, has sufficient thought been given to the impact such
legislation will have on existing copyright/authors' right systems, and the larger societal purposes they serve?
The balance achieved in present copyright and authors' right law, with rights accorded to protect right owners and exceptions
created to protect the interests of consumers, libraries, researchers, educational institutions and the general public, was
many years in the making. If legislation on technical protection systems is added to the armory of protection granted to right
owners, care should be taken not only to treat device manufacturers with fairness and transparency, but also to protect the
existing balance in the law. If that balance is hard to maintain, it is for one fundamental reason: once deployed, technical
protection systems may prevent not only infringing reproduction, but also reproduction that is permitted under existing copyright
exceptions. Technical protection systems can, for example, be used to prevent reproduction normally permitted for private,
non-commercial use or educational and archival purposes, or to prevent reproduction necessary for research permitted under
the exception, or to frustrate interoperability between computer products and networks by preventing the lawful reverse software
engineering often required to achieve such interoperability. Some copyright owners may well desire the elimination of any
copies of their works, and they may well object to existing legislation and systems that permit users to make copies under
certain circumstances. They may wish to replace the existing system with one giant metering system, whereby every act of reproduction
would be subject to control. However, it would be unwise for policy-makers (and ultimately, perhaps, for copyright owners)
to act as if in a vacuum. The fact is that the law authorizes some reproduction and the public has come to have certain expectations
regarding its ability to copy. Both legislators and copyright owners risk public rejection of their efforts to adapt law and
practice to the digital world if they ignore these public expectations. These questions demand reflection and it is uncertain
whether the laws we have seen Member States adopt so far adequately address these issues. This article evaluates the proposals
that the Member States made available before this article was submitted for publication, namely the draft legislation in Austria, Belgium, Denmark, France, Germany, the Netherlands, and the United Kingdom, and in particular, how Member States accommodate the fundamental contradiction between the protection granted by existing
copyright and authors' right laws and the protection offered by technology.
European Framework
The Legal Advisory Board noted in its comments on the EU Green Paper on Copyright and Related Rights in the Information Society
that "the widespread use of technical protection devices might result in the de facto creation of new information monopolies, [and] this would be especially problematic in regard of public domain materials."[fn6] In other words, a sweeping prohibition on "circumvention devices" could give those who deploy technical protection systems
the ability to replace the existing copyright and authors' right regime with a new, private regime that admits no exceptions
and pays no heed to the public interest. Unfortunately, the final text of the Copyright Directive does not address the issue
properly and with the degree of clarity and fairness that is required.
The European legislature had chosen to provide extremely broad legal protection to technical measures. Article 6.1 requires
that Member States provide adequate legal protection against the circumvention of any "effective technological measure," which the person concerned carries out in the knowledge or with reasonable grounds
to know, that he or she is pursuing that objective. Article 6.2 mandates protection for the manufacture, import, distribution,
sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which are either promoted, advertised or marketed for the purpose of
circumvention of, or have only limited commercially significant purpose or use other than to circumvent, or are primarily
designed, produced, adopted or performed for the purpose of enabling or facilitating the circumvention of any effective technological
measure.
While it is disappointing that the Directive does not permit citizens to circumvent technical measures when necessary to exercise
key copyright exceptions and limitations, Article 6.4 provides a sort of "safety valve" for Member States to act to preserve
the vitality of certain exceptions listed in Article 5. Article 6.4 differentiates between reprography and audiovisual copies;
with respect to reprography, Member States must ensure that users may benefit from the exception for private use; with respect to audiovisual copies, Member States may do so. The Directive does not mandate any particular form for the "means necessary to benefit," except that preference should
be given to voluntary measures. Article 6.4(4) is even more obscure, and states that the safety value of Articles 6.4(1) and
(2) are not applicable if works are "made available to the public on agreed upon contractual terms." Contract law and the
bargaining power of right holders may effectively render copyright exceptions and limitations redundant.
Implementing the Copyright Directive
Austria
A draft proposal[fn7] has been tabled by the Ministry of Justice to adapt the Austrian Copyright Act to the provisions of the Directive. The proposal
reproduces almost verbatim Articles 6.1 and 6.2 of the Directive.[fn8] Infringement of these provisions may be subject to civil, criminal and administrative sanctions. The draft merely refers
to failure to implement appropriate means and processes to ensure that beneficiaries may continue to benefit from copyright
exceptions and limitations. While the act only seems to protect those technical measures that are deployed to prevent or restrict
the infringement of an exclusive right, we believe that this language is not sufficiently clear to ensure that users may continue
to benefit from copyright limitations.
Belgium
Two legislative proposals to implement the Directive currently exist; both are in the early stages of the legislative process.
On March 23, 2002, Senator Monfils introduced a bill[fn9] in the Senate of the Belgian Parliament that would amend the existing Belgian Copyright Act. Monfils' proposal takes a "minimalist" approach, providing only a few amendments to the existing legislation. On February 15, 2002,
the Belgian Ministry of Justice made public its own proposal (a so-called "predraft law") to implement the Directive.[fn10] This proposal is far more detailed, with regard to Article 6, and relevant amendments proposed by the Ministry of Justice
bill include Article 13, which provides extensive rules on the protection of technological measures and the actions to be
taken by right owners to enable users to take advantage of the private copying exception in cases where a work is protected
by technical measures. With respect to benefiting from the private copying exception, the onus is, in the first instance,
on the right owner. Right owners have to communicate the means for profiting from the exception to the government. If they
do not do so within a year, the Act proposes alternative options for ways to obtain the same result.
Denmark
Denmark revised its Copyright Act in June 2001. The revision legalized copying of digital content (computer programs excepted)
for strictly personal use. Following the enactment of the Copyright Directive, the Ministry of Culture appointed a working
group to examine whether additional changes were needed to comply with the Copyright Directive, and as a result published
a draft proposal of amendments on June 17, 2002. The draft proposal contains a new chapter entitled "Technological measures
etc." to be integrated in the Act. Pursuant to Article 75 c) paragraph 1 of the new chapter, which implements Article 6(1)
of the Directive, it is not permitted to circumvent any effective technological measures without the consent of the right
owner.
Denmark faithfully transposed the provision in Article 6(4)1 of the Copyright Directive, which will be included in Article
75 d) of the Danish Act, and states that the Copyright Committee can require a right owner who has made use of such technological
measures as referred to in Article 75 c) paragraph 1 to make these measures available to a beneficiary in order for him/her
to benefit from the exceptions to the exclusive rights of Articles 2 and 3 of the Directive.
Denmark has, however, chosen not to include a reference to the private copying exception of Article 5.2b) in the proposed
Article 75 d) (Article 6(4)2) of the Copyright Directive). Thus, a person making copies for his/her own private use cannot
claim to benefit from the rules of Article 75 c) paragraph 1. The Ministry of Culture points out that right owners will more
frequently make use of technological measures to protect their works and that the purpose of Article 6 of the Directive is
precisely to urge and encourage right owners to make use of technological measures that could block the copying of digital
works. The Ministry believes that this purpose could not be fulfilled if right owners in general are asked to remove "barriers
against copying" from their works. Paragraph 2 of the proposed Article states that the provision in the first paragraph applies
only in the absence of voluntary measures by the right owner.
France
In France, the implementation of the Copyright Directive is part of a broad legislative reform of the Intellectual Property
Code ("IPC") of July 1, 1992, to adapt it to technological advancement. In May 2001, the French Ministry of Culture established
the Council of Literary and Artistic Property ("the Council") to provide expertise on the implementation of the Copyright
Directive into French law. The Council has held several meetings and on April 4, 2002, the Ministry of Culture presented the
Council with a working draft regarding the various hypotheses for implementing the Copyright Directive into French law.
The French Ministry of Culture is in favor of implementing a minima of the Copyright Directive, and would like to follow as closely as possible the literal wording of the Directive, except
when complementary considerations are needed, in particular with respect to Article 6.4 of the Directive. The Ministry of
Culture suggests two different approaches for implementing Articles 6.1 to 6.3 into French law: On the one hand, the Ministry
of Culture recommends using the legal provisions of the IPC regarding counterfeiting as a legal basis for implementing Article
6 and extending the prohibited acts to include circumvention of technological measures of protection. On the other hand, it
has also examined the possible creation of a new and separate regime in the IPC for acts of circumvention of technological
measures of protection. A working group composed of representatives of the Ministries of Culture, Justice and Finance is currently
examining the possibility of a specialized regime governing technological measures of protection, especially issues relating
to the definition of infringement, jurisdiction, right of action, civil and criminal action, criminal liability of moral persons,
and emergency procedures. The Council of Literary and Artistic Property has expressly taken a position in favor of the first
approach.
No proposal has been formulated regarding measures to ensure that right owners make available the benefit of certain exceptions
(Article 6.4). The Council is currently working on formulating propositions regarding the private copying exception. With
respect to the provisions regarding the definition of a restricted number of copies, the Ministry of Culture examines two
possibilities: (i) it suggests no specific measures but to wait for technical measures of protection to evolve; (ii) it examines
the possibility of drafting language to ensure the exercise of the exception of private copying by providing specific measures,
such as specific legal claims or mediation.
The French Ministry of Culture has not given any consideration to recital 50 of the Copyright Directive and the working draft
makes no reference to the acts allowed in accordance with the terms of Articles 5.3 and 6 of the Software Directive 91/250/EEC
(exceptions applicable to computer programs). Article L1226-1 of the IPC provides a legal exception for the acts engaged for
the purpose of achieving interoperability. However, for the purpose of achieving interoperability, this exception needs to
be expressly ensured with respect to computer programs protected by technological measures.
Germany
On March 18, 2002, the German Justice Ministry released draft legislation to implement the Copyright Directive. After intensive
consultation with interested parties, a revised draft, the so-called cabinet draft, was published on July 31, 2002.[fn11] The Ministry clearly wanted to preserve the existing legislation to the greatest extent possible. The broad protection of
technical measures in Article 6 of the Directive has been implemented almost verbatim. As a result, circumvention for entirely
legal purposes, as well as the manufacture and sale of a circumvention device that solely permits a lawful use, is prohibited
in the draft's provision on technical measures. Infringement of these provisions may be subject to civil, criminal and administrative
sanctions.
With respect to the "safety valve" for Member States in Article 6.4 of the Directive to act to preserve the vitality of certain
copyright exceptions, the draft requires right owners to provide "technical means" to allow beneficiaries of exceptions, (e.g. the handicapped) to benefit from those exceptions. No specific means, e.g., the provision of keys to beneficiaries or voluntary agreements, are mentioned. The commentary accompanying the draft notes
that no further requirements were set forth to ensure harmonious interpretation in all the Member States of the European Community.
The commentary stresses that beneficiaries are not entitled to self help, but if right owners fail to provide the appropriate
means voluntarily, the draft allows for civil actions including collective actions against any right owner who fails to provide
the necessary means. Failure to provide technical means may further be subject to fines up to EUR 250,000. Unfortunately,
these enforcement actions are only effective as of April 1, 2003. The commentary suggests that this delay should allow sufficient
time for right owners to implement voluntary measures.
With respect to technical protection measures that prevent or restrict reproduction for personal use (except for reprography),
the Ministry apparently decided not to take measures allowed under Article 6.4(2) of the Directive. The commentary only suggests
that these questions require further examination and separate, intensive and measured discussion with all parties involved,
e.g., the federal states, academics and legal practitioners, should be held.
The Netherlands
A draft implementation law to transpose the Directive is moving through the legislative procedure.[fn10] In practical terms, the proposed implementation does not appear to change significantly the digital rights management regime
currently applicable in the Netherlands. Articles 6.1 and 6.2 are faithfully implemented. With respect to Article 6.4(1) and
6.4(2) of the Directive, the draft empowers the council to enact regulations in the public interest to ensure that beneficiaries
may benefit from certain exceptions (including the private copy exception) provided the beneficiary has legal access to the
work in question (Article 29a of the draft). Article V introduces an obligation on the Dutch Ministry of Justice to report
to the speaker of the Lower House of the States General with respect to the application of Articles 29a and 29b and in particular
whether users are limited in practice by the application of technological measures in their right to invoke the legal exceptions
and limitations.
The United Kingdom
On August 7, 2002, the United Kingdom Patent Office published a proposal and consultation paper on the implementation of the
Copyright Directive.[fn13] The government clearly wanted to retain the status quo as far as possible, and started from the existing provision on technical
measures. With regard to Article 6.4 of the Directive, the proposal enables beneficiaries of exceptions to appeal to the Secretary
of State where a technical measure prevents them from benefiting from the exceptions for reprography in Article 5.2 (a), the
disputed private copy exception in Article 5.2 (b), copying for the benefit of libraries, educational establishment, museums
and archives (Article 5.2 (c)), ephemeral recordings (Article 5.2 (d)), reproduction of broadcasts for social institutions
(Article 5.2 (e)), scientific research (Article 5.3 (a)), exceptions for the benefit of disabled (Article 5.3 (b)) as well
as public security (Article 5.3 (e)). With respect to the 5.2 (b) referred to in Article 6.4(2), it is interesting to note
that the only exception that counted as "private copying" under the draft is time-shifting.
Although under no obligation, the Secretary of State may then issue directions enabling the complainant to benefit from the
exception or exceptions concerned.
The proposal fails to provide effective means by which beneficiaries may then benefit from existing exceptions. In practice,
the appeal process is likely to prove an unsatisfactory solution both for the beneficiaries, and the Secretary of State, who
may expect to receive an exceedingly large number of appeals. Only a right owner refusing to comply with a direction from
the Secretary of State commits an actionable breach of duty. It would seem preferable that it is an actionable breach of duty
for a right owner to fail to make available some means of benefiting from an exception. Disputes should be resolved in court
without the unnecessary complexity and delays associated with involving the Secretary of State.
Conclusion
Striking a balance between past and future creators and more generally between the specific interests of copyright owners
and the broader public interest is central to copyright's mission. Copyright achieves this by establishing exclusive rights
and subjecting them to certain limits and exceptions. Even if copyright law is modified to accommodate digital technology,
limitations and exceptions will continue to be indispensable complements to exclusive rights. EU Member States now face the
challenge of determining the extent to which private parties may rely on technological measures to attain protection they
may not achieve by copyright.
Unfortunately, the Copyright Directive fails to provide the degree of clarity and fairness required to counterbalance the
broad protection afforded to technical protection measures in Article 6. Article 6.4 relies on voluntary measures and mandate
limitations and exceptions only for certain exceptions listed. At the time of writing, draft Member State legislation fails
to reconcile copyright exceptions and limitations with technical protection. In particular, it does not ensure that the regulation
of technical measures fully reflects the balance embodied in copyright. In light of copyright's historic success, it would
perhaps be wise to show more respect for its basic principles.
Footnotes
1: World Intellectual Property Organization (WIPO), Document CRNR/DC/94, available at http://www.wipo.org/eng/diplconf. See
Peter Wand: Technische SchutzmafSnahmen und Urheberrecht, 2001, p. 24-53.
2: Directive 2001/29/EC of May 22, 2001 on the harmonization of certain aspects of copyright and related rights in the information
society; published in the Official Journal L 167/10. Articles without reference refer to the Copyright Directive.
3: Article 6 of the Copyright Directive.
4: Any reference to the EU should be understood as referring to the territory of the European Economic Area (EEA). The EEA
Member States are: Austria, Belgium, Denmark, Finland, France, Germany, Greece, Iceland, Italy, Ireland, Liechtenstein, Luxembourg,
the Netherlands, Norway Portugal Spain, Sweden and the United Kingdom.
5: Article 13 requires the Copyright Directive to be implemented before December 22, 2002
Any reference to the EU should be understood as referring to the territory of the European Economic Area (EEA). The EEA Member
States are: Austria, Belgium, Denmark, Finland, France, Germany, Greece, Iceland, Italy, Ireland, Liechtenstein, Luxembourg,
the Netherlands, Norway Portugal Spain, Sweden and the United Kingdom.
Article 13 requires the Copyright Directive to be implemented before December 22, 2002
6: Legal Advisory Board Reply to the Green Paper on Copyright and Related Rights in the Information Society, November 1995,
at 12.
7: Entwurf Bundesgesetz, which changes the Urheberrechtsgesetz geiindert wird (Urheberrechtsgesetz-Novelle 2002 - UrhG-Nov.
2002), available at http://www.justiz.gv.at.
8: Article 90c.
9: Wetsvoorstel tot wijziging van de wet van 30 juni 1994 betref. fende her auteursrecht en de naburige rechten in de context
van de ontwikkeling van de informatiemaatschappij, March 23, 2001.
10: Voorontwerp van Wet van wet houdende de omzetting in Belgisch recht van de Europese richtlijn van 22 mei 2001 betreffende
de harmonisatie van bepaalde aspecten van her auteurs. recht en de naburige rechten in de informatiemaatschappij, February
15, 2002.
11: Gesetzentwurf der Bundesregierung; Entwurf eines Gesetzes zur Regelung des Urheberrechts in der Informationsgesellschaft,
available at http://www.bmj.bund.de.
12: Act providing for the amendment of the Copying Act (Auteurswet) 1912, the Neighbouring Rights Act (Wet op de naburige
rechten) and the Database Act (Databankenwet) concerning the 2001/29/EC Directive of the European Parliament and the Council
of the European Union of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information
society (Act implementing directive on copyright and related rights in the information society).
13: Available at http://www.patent.gov.uk/about/consultations/eccopyright/index/htm.
This article first appeared in CRi
, May 2002 and is reprinted with permission.
