37
Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Embed Size (px)

Citation preview

Page 1: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Digital Copyright and Management of Rights in the Digital Environment

Giancarlo F. Frosio

Page 2: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

The Internet, Digitization and the Digital Dilemma

“. . . information wants to be free, because it has become so cheap to distribute, copy, and recombine - too cheap to meter. It wants to be expensive because it can be immeasurably valuable to the recipient. That tension will not go away . . . .”

Stuart Brand (founder of Electronic Frontier Foundation), THE MEDIA LAB: INVENTING THE FUTURE AT MIT 86 (Penguin Books 1986)

Giancarlo F. Frosio, (CC) by-nc-sa 221/04/23

Page 3: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

The Internet, Digitization and the Digital Dilemma

“The digital dilemma”

NATIONAL RESEARCH BOARD, THE DIGITAL DILEMMA: INTELLECTUAL PROPERTY IN THE INFORMATION AGE (National Academy Press, 2000)

Giancarlo F. Frosio, (CC) by-nc-sa 321/04/23

Page 4: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

The Internet, Digitization and the Digital Dilemma

Giancarlo F. Frosio, (CC) by-nc-sa 421/04/23

Page 5: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

The Internet, Digitization and the Digital Dilemma

“earlier generations of technology . . . have presented challenges to existing copyright law, but none have posed the same threat as the digital age . . . .”

John V. Pavlic, New Media Technology, 1996. John V. Pavlic is executive director of the Columbia University Center for New Media.

Giancarlo F. Frosio, (CC) by-nc-sa 521/04/23

Page 6: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

The Internet, Digitization and the Digital Dilemma

“notions of security and control that may have been exercisable in the non-networked, analog world cannot be effectively transferred to a realm where even a single digital copy can propagate millions of perfect clones, world-wide, almost instantaneously, and where control over the quantity and destiny of the bits that comprise digital media will be imperfect at best.”

Philip S. Corwin, legal counsel for Sharman Networks, owner of KaZaa peer-to-peer software, in a letter to Senator Joseph R. Biden, Jr., February 26, 2002

Giancarlo F. Frosio, (CC) by-nc-sa 621/04/23

Page 7: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

The Internet, Digitization and the Digital Dilemma

“I believe we are moving into a new kind of cultural if not economic reality. We are moving away from a world organized around centralized control, strict intellectual property rights and hierarchies of credentialed experts, to a radically different order. The new order is predicated upon open access, decentralized participation, and cheap and easy sharing.”

David Bollier, The Commons as New Sector of Value Creation: It’s Time to Recognize and Protect the Distinctive Wealth Generated by Online Commons, Remarks at the Economies of the Commons: Strategies for Sustainable Access and Creative Reuse of Images and Sounds Online Conference (Amsterdam, April 12, 2008)

Giancarlo F. Frosio, (CC) by-nc-sa 721/04/23

Page 8: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Copying in the Digital Enviroment

“[I]n the digital world copying is such an essential action, so bound up with the way computers work, that control of copying provides, in the view of some, unexpectedly broad powers, considerably beyond those intended by the copyright law.”

NATIONAL RESEARCH BOARD, THE DIGITAL DILEMMA: INTELLECTUAL PROPERTY IN THE INFORMATION AGE 140 (National Academy Press, 2000)

“For while it may be obvious that in the world before the Internet, copies were the obvious trigger for copyright law, upon reflection, it should be obvious that in the world with the Internet, copies should not be the trigger for copyright law. More precisely, they should not always be the trigger for copyright law.”

LAWRENCE LESSIG, FREE CULTURE 140 (2004)

Giancarlo F. Frosio, (CC) by-nc-sa 821/04/23

Page 9: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Adapting the Law to Digitization

Giancarlo F. Frosio, (CC) by-nc-sa

Reproduction Agreed statement concerning Article 1 (4), WCT: “The reproduction

right, as set out in Article 9 of the Berne Convention, and the exceptions permitted thereunder, fully apply in the digital environment, in particular to use of the works in digital form. Storage of a protected work in digital form in an electronic medium constitutes a reproduction within the meaning of Article 9 of the Berne Convention.”

Including temporary (or permanent) reproduction By any means and in any form

Communication to the public by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a

place and at a time individually chosen by them

921/04/23

Page 10: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Adapting the Law to Digitization

Giancarlo F. Frosio, (CC) by-nc-sa

Distribution authors retain the right to control and license their works, when those

works are re-compiled or re-distributed electronically in the digital environment

The New York Times, Co. v. Tasini , 533 U.S. 483 (2001) (Freelance writers)

National Geographic v. Greenberg, 122 S. Ct. 347 (2001) (Freelance photographers)

Exhaustion Agreed statement concerning Article 6 (2), WCT: “Nothing in this Treaty shall

affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the work with the authorization of the author.”

Agreed statement concerning Articles 6 and 7, WCT: “As used in these Articles, the expressions “copies” and “original and copies,” being subject to the right of distribution and the right of rental under the said Articles, refer exclusively to fixed copies that can be put into circulation as tangible objects.”

1021/04/23

Page 11: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Exceptions, Temporary Copies

Exemption of copies from copyright infringement under certain conditions; act of reproduction must be: temporary and transient or incidental integral and essential part of a technological process sole purpose is to enable:

lawful use of a work or other subject matter or a transmission, in a network between 3rd parties by an intermediary

no independent economic significance Webcasting is excluded

also known as "streaming", is the process of digitally transmitting musical recordings, and radio and television broadcasts over the Internet. The process is designed not to create permanent copies on end-listeners' computer hard drives.

MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993) 17 U.S.C. § 117 amended to overrule this holding

Giancarlo F. Frosio, (CC) by-nc-sa 1121/04/23

Page 12: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Digital Right Managment (DRMs)

“The answer to the machine is in the machine”

Clark Charles, The Answer to the Machine is in the Machine, in THE FUTURE OF THE COPYRIGHT IN A DIGITAL ENVIRONMENT 139-146 (P. Bernt Hugenhotltz ed., Kluwer Law International 1996)

Giancarlo F. Frosio, (CC) by-nc-sa 1221/04/23

Page 13: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Digital Rights Management (DRM) and Technological Protection Measures (TPMs)

Digital Right Management (DRMs) any of several technologies used to enforce pre-defined

limitations on the use and transfer of copyrighted digital content.

viewing, copying, printing, altering and everything else that can be done with digital content.

Technological Protection Measures (TPMs) Use Access

Giancarlo F. Frosio, (CC) by-nc-sa 1321/04/23

Page 14: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Anti-Circumvention Provisions

WIPO Treaties 1996 Art. 11 WCT & 18 WPPT

Digital Millenium Copyright Act 1998 Title I, DMCA § 1201-1205 Copyright Act

Directive 01/29/EC (Information Society Directive) Art. 6 and 7

Giancarlo F. Frosio, (CC) by-nc-sa 1421/04/23

Page 15: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

WIPO Copyright Treaty 1996

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of 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.

(Obligations Concerning Technological Measures, Art. 11 WCT)

Giancarlo F. Frosio, (CC) by-nc-sa 1521/04/23

Page 16: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

WIPO Copyright Treaty 1996

(1) 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 or communicate to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority.

(2) As used in this Article, “rights management information” means information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, 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.

(Obligations Concerning Right Management Information, Art. 12 WCT)

Giancarlo F. Frosio, (CC) by-nc-sa 1621/04/23

Page 17: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

WIPO Performance and Phonograms Treaty 1996

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers or producers of phonograms in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their performances or phonograms, which are not authorized by the performers or the producers of phonograms concerned or permitted by law.

(Obligations Concerning Technological Measures, Art. 18 WPPT)

Giancarlo F. Frosio, (CC) by-nc-sa 1721/04/23

Page 18: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Digital Millenium Copyright Act

(a)(1) No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

(§ 1201 (a) (1) (A))

Giancarlo F. Frosio, (CC) by-nc-sa 1821/04/23

Page 19: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Digital Millenium Copyright Act

(a)(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

(§ 1201 (a) (2) (A) (B) (C))

Giancarlo F. Frosio, (CC) by-nc-sa 1921/04/23

Page 20: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Digital Millenium Copyright Act

(a)(3) As used in this subsection

(A) to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and

(B) a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

(§ 1201 (a) (3) (A) (B))

Giancarlo F. Frosio, (CC) by-nc-sa 2021/04/23

Page 21: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Digital Millenium Copyright Act

(b)(1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that

(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;

(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or

(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.

(§ 1201 (b) (1) (A) (B) (C))

Giancarlo F. Frosio, (CC) by-nc-sa 2121/04/23

Page 22: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Digital Millenium Copyright Act

(b)(2) As used in this subsection

(A) to “circumvent protection afforded by a technological measure” means avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure; and

(B) a technological measure “effectively protects a right of a copyright owner under this title” if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title.

(§ 1201 (b) (2) (A) (B))

Giancarlo F. Frosio, (CC) by-nc-sa 2221/04/23

Page 23: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

DMCA, Copyright Management Information

(a) False Copyright Management Information.— No person shall knowingly and with the intent to induce, enable, facilitate, or conceal infringement

(1) provide copyright management information that is false, or

(2) distribute or import for distribution copyright management information that is false.

(b) Removal or Alteration of Copyright Management Information.— No person shall, without the authority of the copyright owner or the law

(1) intentionally remove or alter any copyright management information,

(2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law, or

(3) distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that copyright management information has been removed or altered without authority of the copyright owner or the law,

knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.

(§ 1201 (b) (2) (A) (B))

Giancarlo F. Frosio, (CC) by-nc-sa 2321/04/23

Page 24: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

DMCA, Exemptions

(1) Statatutory exemptions Exemption for Nonprofit Libraries, Archives, and Educational Institutions Law Enforcement, Intelligence, and Other Government Activities Reverse Engineering Encryption Research

(2) Administratively-created exemptions (last issued by the Librarian of the Congress in July 2010)

Giancarlo F. Frosio, (CC) by-nc-sa 2421/04/23

Page 25: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Information Society Directive (Dir. 01/29)

Obligation of appropriate protection against circumvention of TPMs

(Art. 6, Par. 1)

Obligation of appropriate protection against acts preparing the circumvention: manufacture, sale, etc.

(Art. 6, Par. 2)

Definition of TPMs and effective TPMs

(Art 6, Par. 3)

Mechanism to ensure the respect of copyright exceptions

(Art. 6, Par. 4)

Giancarlo F. Frosio, (CC) by-nc-sa 2521/04/23

Page 26: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

InfoSoc, Anti-circumvention of TPMs

(Art. 6, §1 & 2) Member States must provide for the legal protection of TPMs: prevent the circumvention of effective TPMs which

the person concerned carries out knowingly or with reasonable grounds to know that she/he is circumventing the TPMs & activities primarily designed or produced to circumvent TPMs (ACDs)

prevents manufacture, sale, etc. of devices whose main purpose is to circumvent TPMs

Giancarlo F. Frosio, (CC) by-nc-sa 2621/04/23

Page 27: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

InfoSoc, Effective TPMs

“TPM means 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 other subject-matter, which are not authorised by the right holder of any copyright or any right related to copyright as provided for by law or the sui generis right provided for in Chapter III of Directive 96/9/EC.”

“Technological measures shall be deemed "effective" where the use of a protected work or other subject-matter is controlled by the right holders through application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject-matter or a copy control mechanism, which achieves the protection objective.”

Giancarlo F. Frosio, (CC) by-nc-sa 2721/04/23

Page 28: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

InfoSoc, Manufacture of Circumvention Tools

Article 6.2 requires Member States to provide legal protection against the

"manufacture, import, distribution, sale, rental, advertisement for sale for rental, or possession for commercial purposes of devices, products or components of the provision of services"

for the purposes of circumventing technological measures, including encryption, scrambling or other copy control mechanisms.  

Giancarlo F. Frosio, (CC) by-nc-sa 2821/04/23

Page 29: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

InfoSoc, Right Management Information

Art. 7.1: Legal protection against the removal or alteration of any electronic RMI and the diffusion of protected material from which the RMI has been removed or altered by any person doing so knowingly

Art. 7.2: definition of RMI: any information provided by right holders which identifies: the subject-matter protected the author or any other right holder information about the terms and conditions of use of

the protected subject-matter and any numbers or codes representing that information.

Giancarlo F. Frosio, (CC) by-nc-sa 2921/04/23

Page 30: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Sanctions

Member States must take effective, proportionate and dissuasive sanctions and remedies to enforce rights in the directive

Member States must ensure that right holder has

right to bring action for damages or injunction (in compliance with Artt. 44 & 45 TRIPs) and seize the infringing goods, etc. (in compliance with Art. 46 TRIPS).

Giancarlo F. Frosio, (CC) by-nc-sa 3021/04/23

Page 31: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Tensions between TPMs and Others Rights

Giancarlo F. Frosio, (CC) by-nc-sa 3121/04/23

Page 32: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Tension between TPMs and Privileged Uses

Three levels of protection: Copyright TPMs Legal protection of TPM

Tension: copyright’s balance (level 1) can be jeopardized by the legal protection (level 3) of TPMs (level 2)

Giancarlo F. Frosio, (CC) by-nc-sa 3221/04/23

Page 33: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Tension between TPMs and Privileged Uses

Consumers feared a technical monopoly over all use of copyright works, lawful as well as unlawful.

If a TPM is introduced which blocks all copying and it is unlawful to circumvent that TPM, right owners could technically prevent copying permitted by exceptions or where the term of copyright has expired in addition, it would actually be unlawful to circumvent the technological copy protection measures.

Users will not benefit from exceptions

Giancarlo F. Frosio, (CC) by-nc-sa 3321/04/23

Page 34: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Tension between TPMs and Privileged Uses

(Art. 6.4) “Member States should promote voluntary measures taken by right holders, including the conclusion and implementation of agreements between right holders and other parties concerned, to accommodate achieving the objectives of certain specific exceptions or limitations provided for in national law.”

In the absence of such voluntary measures or agreements, Member States are obliged to take appropriate measures to ensure that right holders provide beneficiaries of such exceptions or limitations with appropriate means of benefiting from them.

This provisions shall not apply to works or other subject-matter made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.

Giancarlo F. Frosio, (CC) by-nc-sa 3421/04/23

Page 35: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Tension between TPMs and Privileged Uses

What if the rightsholders do not provide the

users with appropriate means of benefiting

from the exceptions and limitations?

Giancarlo F. Frosio, (CC) by-nc-sa 3521/04/23

Page 36: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Tension between TPMs and Freedom of Expression

United States of America v. Elcom Ltd. a/k/a ElcomSoft Co. Ltd, and Dmitry Sklyarov

Universal City Studios, Inc. v. Reimerdes, 111 F.Supp. 2d 294 (S.D.N.Y. 2000)

"Content Control System" ("CSS") circumvented by the program DeCSS

Universal City Studios, Inc. v. Corley, 2001 U.S. App. LEXIS 25330 (2nd Cir. 2001)

Giancarlo F. Frosio, (CC) by-nc-sa 3621/04/23

Page 37: Digital Copyright and Management of Rights in the Digital Environment Giancarlo F. Frosio

Tension between TPMs and Competition

The Chamberlain Group, Inc. v. Skylink Technologies, Inc., 381 F.3d 1178 (Fed. Cir. 2004)

Garage door opener case

Lexmark Int'l v. Static Control Components, 387 F.3d 522 (6th Cir. 2004)

Lexmark locked its printers using a microcontroller so that only authorized toner cartridges could be used

RealNetworks, Inc. v. DVD Copy Control Association, Inc., 641 F. Supp. 2d 913 (2009)

Giancarlo F. Frosio, (CC) by-nc-sa 3721/04/23