Computer & Communications Industry Association
[ Last Updated 3 November 2005 ]
Date Received: 2003-02-21
Original version: Digital Copyright: Position Paper Submissions: No. 19: Computer & Communications Industry Association [111KB PDF]
Contents
Computer & Communications Industry Association Comments on the Position Paper on Digital Technology and the Copyright Act 1994
Ed Black President and CEO
Computer & Communications Industry Association
The Computer & Communications Industry Association (CCIA) appreciates the opportunity to comment on the Position Paper on Digital Technology and the Copyright Act 1994" (Position Paper). CCIA has actively participated in the policy debates in the United State, and elsewhere concerning the intersection technology and intellectual property law. In particular, we submitted comments on the Ministry's 2001 Discussion Paper, and we are gratified to see that many of the recommendations contained in the Position Paper are consistent with our comments. While we have views on many of the questions asked in the Position Paper, we will focus on those relating to Internet Service Provider liability, Technological Protection Measures, Database Protection, and Decompilation of Software. The unifying principle of our comments is that the balance between author and user interests which exists in the analog world should be maintained in the digital world.
The Computer & Communications Industry Association (CCIA) is an association of electronic commerce, Internet, telecommunications, computer and software companies ranging from small, entrepreneurial companies to some of the largest in the industry. CCIA's members include equipment manufacturers, software developers, telecommunications and online service providers, resellers, systems integrators, and third-party vendors. Its member companies employ well over a half-million employees and generate annual revenues exceeding $300 billion.
Internet Service Provider Liability
We broadly agree with the Position Paper's approach to Internet Service Provider (ISP) liability. CCIA actively worked to ensure that there would be some limitation on ISP liability during the industry negotiations on the provisions of the Digital Millennium Copyright Act (DMCA). We believe the Position Paper's approach broadly mirrors the approach adopted in the United States, which has generally proved to be successful.
However, one problematic feature of the DMCA appears in the Position Paper: the constructive knowledge standard articulated for secondary infringement. The Position Paper defines constructive knowledge as: "involv[ing] knowledge of facts or circumstances from which a reasonable person would arrive at the relevant belief." This standard appears almost identical to the "aware of facts and circumstances from which infringing activity is apparent" standard in the DMCA. Unfortunately, courts and ISPs in the U. S. have encountered some difficulty interpreting and applying this standard. Indeed, some judicial opinions seem to suggest that once an ISP becomes aware of one instance of infringing activity on its service, it is on notice that other infringements might occur. In light of this experience, CCIA recommends a simpler approach: an ISP can be secondarily liable only if it has actual knowledge of infringing activity, or if it fails to respond expeditiously to a specific notice of infringing activity. A constructive knowledge standard is too vague and forces an ISP to choose between monitoring its service on the one hand and exposing itself to copyright liability on the other.
Technological Protection Measures
CCIA applauds the Ministry's approach to Technological Protection Measures (TPM). First, we agree with the Position Paper's distinction between devices that have the ability to circumvent TPMs and devices that are solely designed to circumvent TPMs. A lack of this distinction would stifle innovation and prevent products from being released for fear of an ancillary effect.
We also commend the proposal that the prohibition center on the circumvention of copy controls rather than access controls. Two pending cases in the United States demonstrate the ease of abusing a prohibition on devices that circumvent access controls. In one case, Lexmark is seeking to prohibit rival toner cartridge manufacturers from circumventing an access control that prevents third party toner cartridges from working in Lexmark printers. In another case, Chamberlin has brought suit against a rival manufacture of garage door openers for being able to open Chamberlin's garage doors. Neither of these cases involves the Internet "piracy" that the DMCA's prohibition on circumvention was intended to prevent.
Finally, we agree that interoperability, error correction and encryption research are important and necessary exceptions to a circumvention provision. We also support the suggestion that exceptions be provided for circumventions for non-infringing purposes. Legislation has been introduced in the U. S. House of Representatives to amend the DMCA to permit circumvention for non-infringing purposes. See H. R. 107.
Database Protection
We are heartened by the Position Paper's conclusion that "there does not seem to be any need to extend protection for non-original databases beyond protection as compilations." This is congruent with CCIA's position on non-original databases.. The creation of a sui generis property right in the facts underlying a database would stifle research and commerce by locking these facts up. Many of the companies that are urging such protection already enjoy limited competition, and in some instances, a pure monopoly position. To give them a further right stifling competition, in something as generalized as non-original facts, is unnecessary and inappropriate.
The Position Paper does mention that this is an issue that may need to be reconsidered in light of WIPO negotiations. We believe that WIPO will not pursue a database treaty. A paper recently published by the WIPO Standing Committee on Copyright and Related Rights that stated:
[A] sui generis regime for databases would not aim to protect the databases themselves as new and/ or creative products, but the information contained in them, with the consequent risk that restrictions will be placed on the circulation of the information, including that which up to now has been in the public domain. In other words, the creation of new IPRs in databases could skew the balance between protection and dissemination in a dangerously pronounced way in favor of protection. The threats in this area are found not only in the very sensitive areas of science and education, but also in actual trade, particularly in connection with the development of the Internet, for example.
Andrés López, SCCR/8/6, The Impact of Protection of Non-Original Databases on the Countries of Latin America and the Caribbean, WIPO (October 15, 2002).
Decompilation of Software
CCIA strongly encourages the Ministry to adopt the Position paper's proposal on decompilation of software. Many of our members, and others in our industry, have found that decompilation is the only method that can uncover the information necessary to create programs that will interoperate with other programs. The right to do so has been established in the United States under numerous decisions (most notably in Sega Enterprises, Ltd. v. Accolade, Inc. 977 F. 2d 1510 (9th Cir. 1992)) as well as under the DMCA. Among the many benefits of allowing this form of reverse engineering is fostering competition in the software industry .
To further this end, CCIA recommends explicitly permitting decompilation of software for interoperability purposes. CCIA also recommends adding a "black box" reverse engineering exception. Black box reverse engineering is less intrusive that decompilation because it involves observing the external behavior of the program rather than translating the program's code. Nonetheless, black box reverse engineering can provide a software engineer with important information. The EU Software Directive contains such a black box reverse engineering exception, as does the Australian copyright law.
Additionally, both the Software Directive and the Australian copyright law void contractual restrictions on reverse engineering. An explicit invalidation of such license terms is necessary to prevent a dominant software company from unilaterally rendering the reverse engineering exception meaningless.
Again, we appreciate the opportunity to comment on the Position Paper. We also appreciate the positive response our last comments were received with and the adoption of many of our proposals in this version. We look forward to working with the Ministry in the future to help resolve these outstanding and important issues.
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