TECHNICAL PROTECTION MEASURES AND CIRCUMVENTION:A COMPARISON OF INTERNATIONAL REQUIREMENTS
Date Issued
2005
Date
2005
Author(s)
Gullixson, Kirsten
DOI
en-US
Abstract
After this overview of Technical Protection Measures and Digital Rights Management, the comparison of the laws in different jurisdictions, and the discussion of the controversy about these laws, and the review of the proposed modifications to US law, the question still remains: Was the real intent of WIPO, and the WIPO Member States, to dramatically tilt the scale of balance between copyright owners interests and individuals interests so strongly in favor of the copyright owners? When looking through the legislative history of these legislations, this does not appear to be the legislators’ intent. The author also discusses the relevant legislations of other countries, including Australia,Japan, China, Mexico, as well as Indonesia, Moldova, and the Czech Republic because of these countries’ interesting and unique approaches.
With respect to the works deserving of protection, works in the public domain need no protection in the digital environment. Works that are not subject to copyright protection in a country do not deserve additional protection in the digital environment by virtue of a TPM or DRM.
With respect to the to the act of infringement, prohibiting circumvention for an infringing purpose may be a more appropriate choice than giving copyright owners absolute power over their copyrights. Member States should link liability for circumvention to an infringing purpose. For a consumer to circumvent a TPM in order to make a non-infringing use of a product should be allowed. The law should allow consumers to remove TPMs in order to make non-infringing uses of their works (backup or archival copies), or to use them in different countries or on different systems.
With respect to trafficking in products or services, only prohibiting products that solely have the function of circumventing copyrights could deprive the law of all practical effect. Where Member States choose to enact such legislation, Member States need to find an appropriate balance on this point. Member States should not prohibit manufacturing of products or devices that are capable of substantial noninfringing uses, and Member States should not require manufacturers to alter products to meet specific legal requirements
With respect to degrees of liability, Member States could consider creating liability for circumvention for the purpose of economic gain or with knowledge. Member States could consider civil penalties for small-scale infringers, and harsher, possibly criminal, penalties for larger-scale infringers.
In seeking to prevent infringement in the digital world, did the new legislations go too far? Did the new legislations upset the traditional copyright balance between copyright owners and the public? Many of these new legislations exceed the WIPO Internet Treaty minimums. The US and the EU legislation, in particular, seem to have “WIPO-plus” requirements, since these new legislations prohibit circumvention, even for non-infringing purposes, except in very limited circumstances.
The author recommends that countries which have not created WIPO Internet Treaty legislation consider the experiences of other jurisdictions which have enacted such legislation. While it is crucial that copyright owners be able to protect their rights in the online environment, consumers, too, deserve protections of the rights which consumers enjoyed under traditional copyright law.
When WIPO Member States undertake any efforts to create national legislation to fulfill obligations under the WIPO Internet Treaties, Member States must consider the best way to maintain the balance between the interests of the copyright owner in protecting his or her work from infringement and the interests of the public in having access to and making uses of information.
Subjects
科技保護措施
規避
數位權利管理
TECHNICAL PROTECTION MEASURES
Circumvention
DIGITAL RIGHTS MANGEMENT
SDGs
Type
thesis