Technological Protection Measures
Current intellectual property policy places an emphasis on the control of copying. To an extent, that control is manifest in legal protections in the authorization of the act, although that control may also be sought in terms of the technology of copying. In addition, where technology facilitates copying, technology might also be used in the attempt to limit unauthorized copying (or at least make it more difficult and expensive). That is, where technology can be used for one purpose, technology can also be used to defeat that purpose. Thus, one trend in copyright policy is the increased use of legal prohibitions against the circumvention of technological protection measures.
The current trend in copyright policy is to attempt to outlaw the devices that may be used to circumvent copyright technological protection measures (TPMs). As the position paper notes, that policy is manifest in the WIPO Internet Treaties, and to an extent in section 226 of the Copyright Act 1994 (pars 97, 98). The position paper notes several issues arising from section 226 and TPMs: should the approach extend to devices circumventing the control of communication or access as well as copying, should protection provide right of action to actual use or against provision of means, the impact of TPMs on permitted acts, the standards for application of anti-TPM policy, and the need for criminal as well as civil remedies.
I think, if I am interpreting the second concern correctly, that the Ministry has it backwards. It is the act of infringing that creates a violation, and should be the foundation of TPMs policy, not the idea or means of circumvention. Certainly it is easier to seek to control the ideas or means of circumvention than to have to seek out the actual infringing acts themselves. But by shifting the emphasis, the Ministry is shifting the balance of rights, once again to the copyright owners, while creating for itself a whole class of related issues (issues 3-5 listed above). It also places a presumption of guilt (possession presumes intent). Finally, it opens up a potential for misuse and abuse that could have grave political and social consequences.
TPMs - Use or Means?
I would argue that the emphasis of policy restricting TPM circumvention should place its emphasis on the actual acts of circumvention, rather than on the technology or knowledge that may facilitate the act. At the very least, policy should seek to restrict use of anti-TPM technology for copyright infringement, and not merely its possession or creation. To do otherwise would have a negative impact on innovation and the diffusion of technology and media. It might also, as the position paper points out, restrict the ability of individuals to make permitted uses of protected materials.
As such, I would argue that the Ministry's current policy to retain the focus of anti-TPM technology on the manufacture of devices or means, and the publication of information, to be seriously wrong, and will likely lead to serious consequences. Any attempt to prohibit or criminalize the publication of information (even that discussing the means of TPM circumvention) is a serious violation of freedom of speech. Already, the threat of litigation has challenged the ability of researchers to present information related to issues of encryption and the viability and impacts of TPMs within a research context.
Further, while an absurd example, it could be argued the ability to write allows individuals to circumvent the TPM of printing, and thus the teaching of writing is the publication of information allowing the circumvention of TPMs. Or substitute the manufacturing of computers - the copyright proposals acknowledge that digital copies are infringements, and since computers both create and decode TPMs in the form of encryption, they are by definitions TPM circumvention technologies.
The ministry proposes to deal with the ability to over-control by focusing only on devices or means "specifically designed or adapted" to circumvent TPMs. However, I think that this will be problematic in a digital environment. Too narrow a specification would make it easier for TPM circumvention, while too broad a specification could prohibit myriad permitted uses and stifle technological advance. An emphasis on the use of TPM circumvention techniques, rather than the manufacture, sale, and possession, would also avoid the apparent anomaly discussed in paragraph 113.
Thus, I would urge the Ministry to reconsider their approach in this case. If the concern is that a failure to address TPM circumvention may facilitate infringement, then the appropriate response is to assert greater penalties for the use of such technology and techniques. Instead of seeking to limit information and technology, the act should emphasize that use of anti-TPM techniques indicates a positive intent to infringe (addressing the "knowledge" issued discussed in paragraphs 125-127), or that such use attaches greater penalties.
TPMs and Exceptions
The above section addresses the issue of the use of TPM circumvention technologies or techniques for infringing uses. TPMs can, however, also be used to prohibit authorized uses or exceptions of copyrighted material. This is not a problem if it is the use for infringement that is regulated. If the act is an infringement, it is improper. However, if the act is not an infringement, then the use of technology is not prohibited. On the other hand, placing limits on the manufacture and distribution of TPM circumvention technology would prohibit authorized as well as unauthorized uses. While not a serious problem to date, as the use of TPMs increase, so will the problems. The Ministry recommends waiting until the problem increases before reconsidering. I would argue that this potential provides further support for a general policy emphasizing the act of circumvention (for infringement) rather than a focus on trying to limit or prohibit information and technology that might circumvent.
TPMs and Knowledge Requirement
It would appear that the subjective test recommended by the Ministry is equivalent to an argument that one should presume that information or technology would be used illegally. Again, I feel that this places an inappropriate presumption of guilt that would encourage misuse and abuse.
TPMs - Offence Provisions
I would support the argument that penalties be primarily civil, with the possible exception of cases of gross piracy.
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