Legal Protection for Technological Protection Measures and Electronic Rights Management Information
35. Respondents were asked if sufficient protection currently exists in the Act to prevent interference with copy-protection mechanisms such as TPMs and ERMI. TPMs include devices, mechanisms or systems designed to guard against or restrict the unauthorised use of recordings or information and other material stored in digital formats. ERMI can identify content protected by copyright and the terms and conditions of use, and enables copyright owners to track and prove copyright infringement.
36. The Act currently provides copyright owners and other persons who issue electronic "copy-protected" works to the public with certain limited rights against persons who (knowingly or having reason to believe that infringing copies will be made) make, sell, advertise or publish information concerning devices or "means" intended to circumvent copy-protection mechanisms and to make infringing copies of copyright works.3 There are currently no provisions in the Act that apply specifically to the removal of ERMI.
37. Respondents were asked about the adequacy of the existing provisions relating to copy-protection mechanisms. Copyright owners considered that the provisions are not sufficient to protect the interests of copyright creators and owners. Many of these respondents thought that existing copy-protection provisions should be expanded to cover mechanisms such as access control technology (which makes works available in encrypted form, through a password or by the use of a specific device).
38. Copyright users were concerned about the increasing use of TPMs by owners to prevent the exercise of permitted acts by users, and generally restricting access to public domain material. These respondents did not support the expansion of copy-protection provisions.
39. Respondents were also asked to comment on whether liability should be extended to suppliers of circumvention devices who "ought reasonably to have known" that a device would be used for circumvention purposes. A large number of submissions from copyright owners (producers and publishers) considered that the current knowledge requirement that a person "knew or had reason to believe" is in practice difficult to prove and should be replaced with a more objective test such as that suggested above. Submissions from users argued that the subjective knowledge requirement should be retained in its current form.
40. Respondents were asked whether specific provisions relating to ERMI should be introduced. Submissions from producers and publishers sought new measures to prohibit the unauthorised and intentional removal or alteration of ERMI, provision or distribution of false ERMI, and the dissemination of copies of works where ERMI has been removed or altered. Submissions from the small number of users who addressed this question supported maintaining the integrity of ERMI. They considered, however, that there should be exceptions to allow the alteration or removal of ERMI where it interferes with the authorised use of a work or where the term of copyright protection has expired.
41. Copyright owners (producers and publishers) considered that the actual circumvention of TPMs and interference with ERMI should be prohibited. Copyright users considered that any prohibition should be limited to cases where the act of circumvention is for the purposes of infringement. Both users and owners generally agreed that interfering with ERMI is not acceptable, but that prohibitions on interference should be considered in the context of the effect on permitted acts.
42. Many copyright owners supported the introduction of criminal penalties for circumvention of TPMs and tampering with ERMI. Users considered that if sanctions were introduced protections should be built into the Act for "innocent circumventors".
3 Copyright Act 1994, section 226.
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