Part Six: Technological Protection Measures and Electronic Rights Management Information
A. TPMs - Adequacy of Existing Provisions
(i) The Issues
165. Submissions were sought on whether sufficient protection exists to protect the interests of copyright creators and owners concerning the use of technological protection measures ("TPMs").54 In particular, is the existing section 226 of the Act sufficient to prevent interference with TPMs? If not, what changes or additions should be made? Should section 226 be extended to cover access-protection measures?
166. The discussion paper referred to the balance between protection and access. While TPMs provide a means to combat the ease of copying that digital technology provides, there are concerns about "digital lockup" as such measures, by preventing access, cannot distinguish between infringing activities and permitted acts.
(ii) The New Zealand Situation
167. Section 226 of the Act currently includes specific provisions directed against certain types of devices or means designed to circumvent electronic "copy-protection" measures. The section provides copyright owners and other persons who issue electronic "copy-protected" works to the public with rights against persons who make, sell, advertise or publish information concerning "devices" or "means" intended to circumvent copy-protection mechanisms and to make infringing copies of copyright works. The section contains a knowledge qualification - persons who make or distribute the devices or means must do so "knowing or having reason to believe that the devices, means, or information will be used to make infringing copies" for the section to apply.55
168. Copy-protection is defined for the purposes of section 226 as including "any devices or means intended to prevent or restrict copying of a work or to impair the quality of copies made".56 The term "technological protection measure" is not used or defined in the Act. Section 226 does not specifically refer to devices, means or information designed to circumvent access-protection (such as DVD zone formats). The United Kingdom equivalent of section 226 has, however, been interpreted to apply to DVD regional zone protection technology.57 It seems, therefore, that section 226 could already apply to access control (which is effected through copy-protection) on the basis that the DVD zone system prevents access by protecting against copying in Playstation consoles.
(iii) The International Situation
169. The WIPO Internet Treaties require that Member States provide adequate legal protection and effective legal remedies against the circumvention of effective technological protection measures that are used by copyright authors and owners in connection with the exercise of their rights under those Treaties or under the Berne Convention.58 The terms "technological protection measure" and "effective" are not defined in the Treaties.
Australia
170. Section 116A of the Australian Act, as amended by the CADA, protects against the manufacture, commercial dealing, importation, making available online, advertising, marketing and supply of a circumvention device or service used to circumvent technological protection measures such as program locks. The actual use of a circumvention device or service is not specifically prohibited.
171. A "circumvention device" is defined as a device (including a computer program) having no, or only a limited, commercially significant purpose or use other than the circumvention, or facilitating the circumvention of, a technological protection measure.59
The definition is intended to include non-physical devices such as software tools, and is designed to ensure that items of general-purpose equipment, such as video recorders and computers, do not fall within the definition. A corresponding definition is provided for "circumvention service".
172. The Australian Act defines a "technological protection measure" as a device, product or component incorporated into a process that is designed to prevent or inhibit the infringement of copyright:
- By ensuring that access is available solely by use of an access code or process (e.g. decryption, unscrambling or other transformation) with the authority of the copyright owner or exclusive licensee; or
- Through a copy-control (access) mechanism.60
173. The Australian Act also provides limited exceptions to the circumvention provisions, known as "permitted purposes". The manufacture or supply of a circumvention device or service is allowed if a declaration is received that it is required for a permitted purpose. Permitted purposes include the reproduction of computer programs to make interoperable products, to correct errors and for security testing, activities covered by libraries and archives exceptions, the use of copyright material for the Crown, and activities covered by the statutory licences for educational institutions and institutions assisting persons with a disability. No fair dealing exception exists in relation to the circumvention provisions.
174. Also relevant to the discussion of TPMs is the new exception for temporary or incidental reproductions, which was introduced to take account of transient copying automatically undertaken in technical communication processes. Section 43A of the Australian Act provides a specific exception to infringement that would otherwise arise from "making a temporary reproduction of the work or adaptation as part of the technical process of making or receiving a communication".
175. The new exception does not apply if the communication itself constitutes infringement, nor does it apply to temporary reproductions made in contexts that do not include communication to the public. This means, for example, that temporary reproductions made to enable play-back on devices (such as CD and DVD players) and in association with "buffer" systems are not covered. It is, however, arguable that such reproductions would be covered by an implied licence.
United States
176. The DMCA amended the US Act to include a range of provisions directed towards the "circumvention of protection systems". Section 1201 of the US Act provides for three categories of "violations" regarding circumvention of technological measures. These concern the act of circumvention, and measures that prevent access (anti-access) and those that prevent copying (anti-copying).61
- Act of circumvention: no person shall circumvent a "technological measure" that effectively controls access to a protected work.62 Section 1201 prevents the circumvention of technological measures that prevent access, but not those that prevent copying. This distinction was employed to ensure that the public could continue to make "fair use" of copyrighted works. Given that the doctrine of fair use is not a defence to the act of gaining "unauthorised access to a work", the act of circumventing a technological measure to gain access is prohibited.63
- Anti-access: no person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, or component that:
- Is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a protected work;
- Has limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a protected work; or
- Is marketed for the purpose of circumvention.64
- Anti-copying: as for anti-access, but where a technological measure "effectively protects a right of a copyright owner", and thereby prevents the copying of a work.65
177. A number of exceptions to the circumvention provisions exist under US law. An exception for law enforcement, intelligence and other government activities applies to the operation of the entire scheme of protection. Other exceptions apply to the provision dealing with the category of technological measures that control access to works, including for: non-profit libraries, archives and educational institutions, reverse engineering, encryption research, devices preventing access of minors to the Internet, personally identifying information, security testing, and certain technological measures and analogue devices (such as video cassette recorders).66 No exception is made for temporary copies made in the course of transmitting or making material available to the public.
European Union
178. The Copyright Directive includes provisions for the legal protection of "anti-copying" devices. Article 6(1) of the Copyright Directive provides that Member States shall provide "adequate legal protection against 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".
179. Article 6(2) provides that protection shall also be provided against the manufacture, import, distribution, sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which:
- Are promoted, advertised or marketed for the purpose of circumvention;
- Have only a limited commercially significant purpose or use other than to circumvent; or
- Are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of, any effective technological measures.
180. For the purposes of the Copyright Directive, the term "technological measure" is defined as:
[A]ny 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 rightholder of any copyright [or related right] ... .67
181. Technological measures are deemed to be "effective" where:
[T]he use of a protected work or other subject-matter is controlled ... through the application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject-matter or copy control mechanism, which achieves the protection objective.68
182. The above definitions of effective technological measures arguably cover more than measures that are designed to prevent the unauthorised performance of acts restricted by copyright and related rights. The Copyright Directive clearly requires legal protection against technologies that are designed to circumvent access-control measures, and conceivably also covers geographic zoning devices.
183. Article 6(4) of the Copyright Directive is intended to respond to concerns about "digital lockup" and the prevention of copying that is legally permitted. It obliges Member States, in the absence of voluntary measures taken by rightholders, to ensure that rightholders take steps that enable users of copyright material to make use of the exceptions or limitations provided in national law. This only applies, however, to Article 6(1) concerning actual circumvention, not to Article 6(2). So while circumvention for the specified lawfully excepted uses must be protected, the practical means by which an excepted use may be facilitated (through the use of a circumvention service or device) is outlawed, as copyright users cannot be provided a circumvention device or service.69
184. Article 6(4) contains further qualifications. It does not apply to works made available through interactive on demand services (which are not defined). Member States may decide whether to take measures in respect of the private copying exception provided in Article 5(2)(b) of the Copyright Directive.
(iv) Options
185. The key issue in this section is whether sufficient protection exists to protect the interests of copyright owners and creators, concerning the use of TPMs. Comment was also sought on the impact of TPMs on permitted uses.
186. Submissions from respondents representing copyright owners interests, argued that the copy-protection provisions of the Act should be extended to include mechanisms such as access control technology (which makes works available in encrypted form, through a password or by the use of a specific device).
187. Submissions from users did not support expanding the existing copy-protection provisions, which many considered were already too restrictive. Users were concerned about restricting access to public domain material and enabling copyright owners to exert control over subsequent use of works (contrary to the "first sale" doctrine). Copyright users were particularly concerned about the use of access-control technology to price discriminate and control the geographical distribution of works, to the detriment of New Zealand users.
188. The following options have been identified from analysis of submissions received:
- No change to section 226 of the Act.
- Expand section 226 to explicitly cover access protection measures.
- Expand section 226 (as in option two above) but restrict its application so that it does not prevent the supply of devices to allow the circumvention of regional zone access protection (on legitimate parallel imports).
- Amend section 226 to expressly allow circumvention of TPMs for specific purposes (such as error correction, interoperability, and encryption research) and to enable the exercise of permitted acts.
B. TPMs - Liability for Circumvention
(i) The Issues
189. The following issues arise concerning liability for circumvention of TPMs:
- Should copyright owners have a right of action against the actual use of a circumvention device or means, or should liability be restricted to provision of the means of circumvention (as section 226 currently provides)?
- If restricted to the provision of the means to circumvent, should the standard of knowledge required for liability be subjective or objective? Should actual knowledge, or a reason to believe, that a device or means would be used to circumvent a TPM be required? Or is it enough that a device or means be produced or provided (without the knowledge requirement)?
(ii) The New Zealand Situation
190. Under section 226 of the Act, the right of action provided to copyright owners is in relation to provision of the means of circumvention, not the act of circumvention itself. Liability is restricted, under section 226, to situations where persons knew or had reason to believe that the device, means or information would be used to make unauthorised copies of copyright works protected by copy-protection technologies.
(iii) The International Situation
Australia
191. Under the Australian Act, as in New Zealand, liability attaches to provision of circumvention devices and services, not to the act of circumvention itself.
192. To be liable for infringement, it is a requirement that a person "knew, or ought reasonably to have known, that the device or service would be used to circumvent, or facilitate the circumvention of, the technological protection measure".70
The recent Australian Sony Playstation case71 suggests that, under Australian copyright law, it will be enough to show that a person knew that a device would be used to circumvent a TPM. It is not a necessary requirement, according to that case, that a person knew the device would be used to commit copyright infringements.
United States
193. The US Act contains provisions which prohibit, in certain circumstances, both the actual use (with exceptions for fair dealing) of circumvention devices and measures and the provision of those devices and measures. Section 1201 contains minimal knowledge requirements.
194. In relation to the act of circumvention, section 1201(a)(1) of the US Act does not expressly require either knowledge or intent. It appears that knowledge is only a requirement in relation to the marketing of a "technology, product, service or device", where a "person or another acting in concert with that person with that person's knowledge", markets a technology, product, service, device or component for use in circumventing a technological measure.72
European Union
195. The Copyright Directive has a similar approach to that adopted in the U.S. in that it contains provisions aimed at the prohibition of both the act of circumvention and the manufacture and distribution of devices that could be used to defeat TPMs. The Copyright Directive is different, however, in that it contains a knowledge requirement.
196. Article 6 of the Copyright Directive provides that Member States "shall provide adequate legal protection against any activities, including manufacture or distribution of devices or the performance of services, which are carried out knowingly or with reasonable grounds to know that they will enable or facilitate the circumvention without authority ...."
(iv) Options
197. The discussion paper asked whether section 226 of the Act should be extended to suppliers of circumvention devices who ought reasonably to have known that a device would be used for circumvention.
198. A large number of respondents (user groups, suppliers and manufacturers) considered that liability should focus on the actual use of circumvention devices, not the supply or potential use of such devices. These respondents considered that there are a number of legitimate uses for circumvention devices, and that manufacturers of general-purpose equipment that can be used for non-infringing purposes should not be held liable for infringing uses.
199. Copyright owners (producers and publishers) generally considered that the current requirement that a person "knew or had reason to believe" that a device would be used to make unauthorised copies is too narrow, because in practice it is difficult to prove that a person had the requisite knowledge. These respondents advocated a more objective test, or the inclusion of a presumption that suppliers "ought to have known" that a device would be used for an infringing activity.
200. The following options were identified from analysis of submissions received:
- No change to section 226.
- Amend section 226 to provide copyright owners with a right of action against the actual circumvention of TPMs in addition to action against the manufacture or provision of devices and measures.
- Amend section 226 as in option (b) but provide exceptions in relation to permitted acts or for specific purposes (such as error correction, interoperability and encryption research).
- Amend section 226 to provide an objective knowledge requirement, such as "ought reasonably to have known" instead of the current requirement of "knew or had reason to believe".
C. TPMs - Offence Provisions
(i) The Issues
201. The discussion paper also asked if criminal offence provisions are required in addition to civil remedies in relation to prohibited activities concerning TPMs.
(ii) The New Zealand Situation
202. In proceedings for infringement copyright owners may seek civil remedies (such as damages, injunctions, account of profits) under section 120 of the Act (and rights of delivery up in sections 122 and 132). The offence provisions of the Act only apply where there has been commercial dealing with "infringing objects" including infringing copies of copyright works and objects used to make infringing copies.
(iii) The International Situation
Australia
203. In addition to civil remedies, the Australian Act now includes some criminal penalties relating to TPMs.73 No offences apply to the mere act of circumvention. Criminal penalties, however, may apply to individuals and businesses that provide or promote circumvention services, or make, sell, import, make available on-line or distribute circumvention devices, "by way of trade" (or by engaging in other activities that will affect prejudicially a copyright owner).
204. For the offence provisions to apply a person must "know or be reckless" as to whether a device or service will be used to circumvent a TPM. Penalties that can be incurred are fines of up to 550 penalty units (valued at A$60,500) and/or a period of imprisonment up to five years for an indictable offence, with significantly lesser penalties if a matter is heard and determined summarily.
United States
205. The DMCA created both civil and criminal remedies for infringement of its TPM provisions. In civil proceedings, injunctions, damages and cost recovery are available as remedies.74 Criminal proceedings may be taken against any person who wilfully violates section 1201 for the purposes of "commercial advantage or private financial gain".75 Fines of up to US$500,000 and up to 5 years imprisonment may be incurred for first offences (with up to double this for second offences).
European Union
206. Article 8 of the Copyright Directive provides that Member States will provide appropriate sanctions and remedies which are "effective, proportionate and dissuasive". Member States must ensure that rightholders whose interests are affected by an infringing activity can bring an action for damages, apply for an injunction and where appropriate "for the seizure of infringing material as well as devices, products or components referred to in Article 6(2). No reference is made to criminal sanctions in this context.
(iv) Options
207. The key question that arises in this section is whether criminal offence provisions are required in addition to civil remedies in relation to prohibited activities concerning technological measures, and what might be gained from such an approach.
208. Submissions on the discussion document from a number of copyright owners suggested that both civil and criminal sanctions should apply to the means of circumvention and the act of circumvention itself. Submissions from user groups suggested that if criminal sanctions were introduced protections should be built into the Act for "innocent circumventors". One respondent suggested that the applicability and severity of criminal sanctions should be determined by reference to the breadth of any restrictions concerning the use of circumvention measures. For example, if broad protection is provided against circumvention, there may be a high incidence of "innocent infringement" in which case criminal sanctions may not be appropriate. Some respondents suggested that criminal sanctions may, however, be appropriate where actual knowledge or intent is required.
209. The following options have been identified from analysis of submissions:
- No change to the Act - civil remedies to apply to TPMs only.
- Extend existing offence provisions that relate to commercial dealing in infringing copies to section 226 - the supply of the means to circumvent.
- As for option (b) with the addition of offence provisions in relation to the actual circumvention of TPMs.
- As for options (b) and (c) with exceptions.
D. ERMI - Need for Protection against Interference
(i) The Issues
210. Electronic Rights Management Information ("ERMI") identifies content protected by copyright and the terms and conditions of use, and assists copyright owners in tracking copyright infringement and legitimate use of their works. The discussion document sought responses from submitters on the following issues:
- Should copyright owners have a right of action against the removal of or tampering with ERMI?
- If so, what limitations or exceptions should apply (if any)?
(ii) The New Zealand Situation
211. There are currently no provisions in the Act that apply to the removal of ERMI.
(iii) The International Situation
WIPO Internet Treaties
212. Article 12 of the WCT and Article 19 of the WPPT require Member States to provide "adequate and effective" remedies against any person 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":
- To remove or alter any ERMI without authority; and
- To distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works knowing that ERMI has been removed or altered without authority.
213. "Rights management information" is defined in the WCT as:76 [I]nformation 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 of 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.
Australia
214. The CADA introduced both civil and criminal provisions to the Australian Act designed to prevent the intentional removal and alteration of "rights management information" ("RMI"), or the commercial dealing in copyright material where the dealer knows that RMI has been removed.
215. The elements to be established concerning the intentional removal or alteration of RMI are:
- Removal or alteration of any RMI attached to a work or other subject matter in which copyright subsists;
- Without permission of the copyright owner or exclusive licensee; and
- Where the person knew, or ought reasonably to have known, that the removal or alteration would "induce, enable, facilitate or conceal an infringement of the copyright in the work or other subject matter".77
216. In respect of the commercial dealing with works, the following elements must be established:
- Distribution or importation for the purpose of trade or communication of a work or other subject matter;
- RMI attached to the copy has been removed or altered;
- Knowledge that the RMI had been removed without the permission of the copyright owner or exclusive licensee; and
- Knowledge that the distribution, importation or communication would induce, enable, facilitate or conceal an infringement of the copyright in the work or subject matter.78
United States
217. Section 1202 of the US Act contains provisions to protect the integrity of "copyright management information" ("CMI"). The section addresses dealing with false CMI and the removal or alteration of CMI by:
- Prohibiting the knowing provision or distribution of false CMI, if done with the intent to induce, enable, facilitate or conceal infringement (subsection (a)); and
- Barring the intentional removal or alteration of CMI without authority, as well as the dissemination of CMI or copies of works, knowing that the CMI has been removed or altered without authority (subsection (b)). Liability under subsection (b) requires that the act be done with knowledge or, with respect to civil remedies, with reasonable grounds to know that it will enable, induce, facilitate or conceal an infringement.
218. CMI is defined as identifying information about the work, the author, the copyright owner, and in certain cases, the performer, writer or director of the work, as well as the terms and conditions for use of the work, and such other information as the Registrar of Copyrights may prescribe by regulation. Information concerning users of works is explicitly excluded.
European Union
219. Article 7 of the Copyright Directive requires Member States to provide adequate legal protection against any person who knowingly (and without authority):
- Removes or alters any ERMI;
- Distributes, imports for distribution, broadcasts, communicates or makes available to the public any protected works or other subject matter from which ERMI has been removed or altered without authority;
- If the person knows, or has reasonable grounds to know, that by doing so he is inducing, enabling or concealing an infringement of any copyright or related rights.
220. ERMI is defined as any information provided by rightholders which identifies the work, its author or owner, or information about the terms and conditions of use of the work and any numbers, or codes that represent such information.
(iv) Options
221. The key issue addressed in this section is whether copyright owners should have a right of action against the removal of or tampering with ERMI, and if so, what limitations or exceptions might apply.
222. Very few of those who made submissions on the discussion paper commented on the issue of ERMI. Of those who made submissions, general support was expressed, by both owners and users of copyright material, for maintaining the integrity of ERMI. Copyright owners sought provisions to prohibit interference with ERMI and the dissemination of works where ERMI was removed. Submissions from copyright users and legal experts considered that if such provisions were introduced, there should be exceptions to allow the alteration or removal of ERMI in cases where it interferes unreasonably with the authorised use of a work and where the term of copyright protection has expired.
223. The following options have been identified from analysis of submissions:
- No change to the Act.
- Explicitly prohibit interference with ERMI through prohibiting devices or means of interference.
- Introduce new provisions concerning prohibiting the actual and intentional removal and alteration of ERMI and commercial dealing with copyright material where the dealer knows that ERMI has been removed.
E. ERMI - Need for Offence Provisions?
224. The discussion paper sought views on whether criminal offence provisions would be required if activities concerning interference with ERMI were expressly prohibited. If so, what activities should offence provisions apply to?
(i) The International Situation
225. In Australia, the removal or alteration of "RMI" and commercial dealings with works whose RMI has been removed or altered attracts the same civil remedies as for dealings with TPMs. Criminal sanctions will apply where a person knows or is reckless as to whether the removal or alteration of RMI will induce, enable, facilitate or conceal an infringement of copyright, and they interfere with RMI or distribute works or other subject matter whose RMI has been removed or altered. The same criminal sanctions that apply to interference with TPMs will apply in this situation.
226. A similar situation exists in the US, except that criminal sanctions are much higher, with fines of up to US$500,000 and five years imprisonment for first offences.
227. In the European Union, Article 8 of the Copyright Directive will apply (see above discussion of offence provisions for TPMs).
(ii) Options
228. As noted above, the few submissions on this issue from both copyright owners and users were in general agreement that interfering with ERMI should not be permitted. Users were, however, generally opposed to criminal provisions and argued that if offence provisions were to be implemented, exceptions should be made for innocent interference and legitimate purposes and exercise of permitted acts.
229. The following options have been identified from analysis of submissions:
- No change to the Act.
- Extend existing offence provisions relating to commercial dealing in infringing copies to the supply of devices or means of interfering with ERMI.
- Extend existing offence provisions to the actual interference with ERMI (with exceptions in relation to permitted acts or new specific purposes).
54 Technological protection measures are defined as devices, mechanisms or systems designed to guard against or restrict the unauthorised use of recordings or information and other material stored in digital formats. These include encryption technologies, and other software and hardware measures. Types of technological protection measures include copy-protection, access-protection codes and measures designed to restrict the use that can be made of material or information in other ways.
55 Copyright Act 1994, section 226(1)(b).
56 Copyright Act 1994, section 226(3).
57Sony Computer Entertainment v Paul Owen and others [2002] EWHC 45 (CH).
58 WCT, Article 11 and WPPT, Article 18.
59 Copyright Act 1968 (Australia), section 10.
60 Ibid, section 10.
61 Fitzpatrick, "Copyright Imbalance: U.S. and Australian Responses to the WIPO Digital Copyright Treaty", supra at note 26, p214.
62 Copyright Act 1976 (US), section1201(a)(1)(A).
63The Digital Millennium Copyright Act of 1998: U.S. Copyright Office Summary, December 1998.
64 Copyright Act 1976 (US), section 1201(a)(2).
65 Ibid, section 1201(b).
66 Ibid, section 1201(d) - (k).
67 Copyright Directive, Article 6(3).
68 Ibid, Article 6(3).
69 Hart, "The Copyright in the Information Society Directive: An Overview", European Intellectual Property Review, Vol. 24, Issue 2, February 2002, p63.
70 Copyright Act 1968 (Australia), section 116A(1)(c).
71Kabushiki Kaisha Sony Computer Entertainment v Stevens [2001] FCA 1379.
72 Copyright Act 1976 (US), section 1201(a)(2)(C) and (b)(1)(C).
73 Copyright Act 1968 (Australia), section 132(5A and B).
74 Copyright Act 1976, section 1203(a) and (b).
75 Ibid, section 1204(a).
7677 Copyright Act 1968 (Australia), section 116B.
78Ibid, section 116C.
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