Part Six: Electronic Rights Management Information
A. Issue Summary
132. Electronic rights management information ("ERMI") identifies content protected by copyright and the terms and conditions of use, and can assist copyright owners in tracking copyright infringement and legitimate use of their works. There are currently no provisions in the Act that apply to the removal of ERMI.
133. The WIPO Internet Treaties 43 require Member States to provide "adequate and effective" remedies against the removal or alteration of any ERMI without authority. Remedies are also required against the distribution, importation for distribution, broadcast or communication to the public (without authority) of works or copies of works knowing that ERMI has been removed or altered without authority.
134. The following issues arise:
- Should copyright owners have a right of action for the removal of or tampering with ERMI?
- If so, what limitations or exceptions should apply (if any)?
- Should offence provisions apply? If so, to what activities should they apply?
B. Perspective and Proposed Policy Response
135. In approaching this issue the Ministry is aware that copyright industries tend to approach TPMs and ERMI together, as a package of technological solutions to address the ease of copying and distribution that digital technologies afford. These measures are collectively known as digital rights management. 44 For practical purposes we have distinguished, in this paper, between digital rights management solutions that control content and those that describe rights to that content. We note also that this distinction is made in the relevant articles of the WIPO Internet Treaties.
136. In approaching the ERMI issue we also make a distinction between those aspects of ERMI that identify content protected by copyright and terms and conditions of use, and ERMI that assists copyright owners to track copyright infringement and legitimate use of their works.
137. In respect of the first aspect, the Ministry considers the identification of content, rights and conditions to be nothing new. This sort of authentication information has traditionally been a feature of print and other traditional media (for example, inside the front cover of a book or on a record sleeve). The question arises, however, as to why the Act should provide additional rights to copyright owners in respect of its removal from digital material?
138. While rights management is obviously not a new concept, the Ministry considers that managing rights and asserting copyright in respect of content has become more important, as digital network technologies have limited or made obsolete the methods of control that content owners have exercised over analogue media. In this respect, "digital is different" and has shifted the balance. With digital works, authentication information can easily be removed or changed with little or no visible alteration to a work, so that purchasers would not be put on notice that they are dealing with infringing material.
139. The Ministry's preferred policy response is, therefore, to make provision in the Act to protect against the intentional removal and alteration of ERMI, or the commercial dealing in copyright material where a dealer knows that ERMI has been removed or altered. In making this recommendation, the Ministry notes that submissions on the 2001 discussion paper generally supported maintaining the integrity of ERMI. The Ministry also considers that the cost to the public interest of imposing such a requirement would not be unreasonable. We note that some respondents suggested that there should be some exceptions to allow the alteration of ERMI, but they did not provide evidence as to why such an exception would be needed in practice. Respondents may wish to comment on this issue.
140. If provision against the alteration or removal of ERMI is to be made in the Act, it will be necessary to develop a definition of ERMI. In considering this issue, we turn to the second aspect of ERMI, identified at the beginning of this section, namely tracking.
141. If digital technologies create problems for content owners by providing a range of opportunities to would-be infringers, not previously available in the analogue environment, they also present new opportunities to content owners, for example in terms of new business models and gaining more information about audiences for content.
142. Network digital technology has, for example, facilitated the development of a market for journal articles as single units, not previously feasible in print publishing. It has also made it possible to find out what content is being consumed and when, through identification metadata which enables content owners to track usage remotely. Metadata may be connected to content through digital watermarking, which in addition to authentication and usage metering, may facilitate payment processing systems. 45
143. The Ministry's recommendation is that any definition of ERMI included in the Act not encompass the tracking functions of ERMI. We are not convinced that the Act should provide new rights to content owners to assist them to take advantage of these new business opportunities. It seems to us that the tracking functions of ERMI are quite removed from what has traditionally been the scope of copyright law. Many of these features are designed to ensure that the terms and conditions of licence agreements are observed. The law of contract, not copyright therefore applies.
144. There are also privacy issues where technology allows content owners to determine what information is being accessed by whom. Whether such systems would comply with information privacy principles in the Privacy Act 1993 would depend on the particular circumstances. For example, whether or not the content owner had advised the purchaser of the copyright material about the nature of the information collected, the manner in which it would be collected and the purposes for which it would be used. Labelling of digital works may, therefore, be an important issue for content owners to consider.
145. The Ministry also notes that the inclusion of a provision in the Act providing copyright owners with a right of action against the removal or tampering with ERMI would assist New Zealand to comply with the relevant substantive provisions of the WIPO Internet Treaties, should New Zealand wish to accede to those treaties at a later date.
146. Consistent with our recommendations concerning TPMs, the Ministry does not favour the application of offence provisions to ERMI. Our preferred policy response would be that civil remedies apply. Our initial position is that a subjective knowledge standard should apply. Submissions are invited on this point.
43 WCT, Article 12 and WPPT, Article 19.
44 For a discussion of a comprehensive range of digital rights management solutions, see Rosenblatt, Trippe and Mooney, Digital Rights Management (2002).
45 Ibid, pp 81 and 102.
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