The Legal System of Technological Protection Measures under the WIPO Treaties, the Digital...

8/14/2019 The Legal System of Technological Protection Measures under the WIPO Treaties, the Digital Millennium Copyright Act, the European Union Directives and ot

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The Legal System of Technological Protection Measures

under the WIPO Treaties, the Digital Millennium Copyright Act,

the uropean !nion Directi"es

and other #ational La$s %&apan, Australia'

(y

&ac)ues de Werra

Doctor of Laws, University of Lausanne

Admitted to the Geneva Bar

LLM (Columbia Law School


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!" !ntroduction""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!!" $y%olo&ies of e'istin& technolo&ical %rotection measures"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

A" $echnolo&ical %rotection measures controllin& the access to the wor)s""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""B" $echnolo&ical %rotection measures controllin& the use of the wor)s"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""C" +elation between access and use %rotection measures""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

!!!" $he -!./ $reaties""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""A" Definition of the technolo&ical %rotection measures in the -!./ $reaties"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

1" 34ffective5 technolo&ical %rotection measures""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""6" $echnolo&ical %rotection measures 3used by authors in connection with the e'ercise of their ri&hts under this $reaty or the Berne Convention5 """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""7" $echnolo&ical %rotection measures 3that restrict acts, in res%ect of their wor)s, which are not authori8ed by the authors concerned or %ermitted by law5""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

B" !ssues not dealt with in the -!./ $reaties"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""1" Does the re9uirement of 3ade9uate le&al %rotection5 (art" 11 -C$ call for a co%yri&ht s%ecific anti:circumvention re&ulation;""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

6" -hat conduct is %rohibited (act of circumvention and ;"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 7" -hat ty%es of remedies must be made available to the co%yri&ht holders;"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

!?" United States""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""A" !ntroduction""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""B" Circumvention of a technolo&ical measure %rotectin& the access to the wor)""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

1" Act of circumvention""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""a Does the abuse of an identification %rocedure constitute a circumvention of a technolo&ical %rotection measure; "" ""1@

b Does the use of a 3dee% lin)5 constitute a circumvention of a technolo&ical %rotection measure;""""""""""""""""""""""""""""""16" $he rulema)in& %rocedure""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

a !s this rulema)in& %rocedure the a%%ro%riate way to re&ulate the balance of interests standin& at the core of co%yri&ht law;"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

b !s it wise or even %racticable to base an e'em%tion system on 3classes of wor)s5;"""""""""""""""""""""""""""""""""""""""""""""""""""""61c -hat about the %ractical use of the e'em%tions once &ranted;""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

7" Business of traffic)in& in circumventin& technolo&y""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

C" Circumvention of technolo&ical measures %rotectin& the use of the wor)s """""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""D" Limited set of e'ce%tions """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

?" 4uro%ean Union"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""A" Co%yri&ht in the !nformation Society Directive """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

1" Definition of technolo&ical %rotection measures """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""6" Act of circumvention""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""7" Business of traffic)in& in circumventin& technolo&y""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""#" 3?oluntary measures5 used to define the sco%e of co%yri&ht %rotection"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" Monitorin& of the a%%lication of the C!SD and amendments %rocedure""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

B" Directive on Conditional Access""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""1" .rotection of conditional access to a service"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""6" !llicit device &ivin& unauthori8ed access""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""7" Business of traffic)in& in circumventin& technolo&y""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""#" +elation between the C!SD and the CAD"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

?!" a%an"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""A" Co%yri&ht law """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""B" Anti:Unfair Com%etition Law""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

1" Definition of technical restriction means"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""6" Business of traffic)in& in circumventin& technolo&y""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

?!!" Australia"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""A" Definition of technolo&ical %rotection measures"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""B" Definition of the circumventin& technolo&y""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""C" !nfrin&in& activity"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""D" 4'ce%tions to the %rohibition of circumvention""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

?!!!" Conclusion""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

6


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I* Introduction +

!n the di&ital era, technolo&ical %rotection measures are viewed as an effective means to %rotect

the co%yri&ht owners a&ainst infrin&ements of their wor)s 1"

As such (i"e" merely as a technical means to %rotect wor)s a&ainst %otential co%yri&htinfrin&ements , technolo&ical %rotection measures do not need any le&al re&ulation or any le&al

%rotection" owever, because all technolo&ical %rotection measures can eventually be defeated 6,

the need for le&al %rotection a&ainst their circumvention has been felt" As a conse9uence, le&al

%rotection a&ainst the circumvention of technolo&ical %rotection measures has been ado%ted in

the -!./ Co%yri&ht $reaty (-C$ and in the -!./ .erformances and .hono&rams $reaty

(-..$ , both si&ned in Geneva in December 100* 7"

As a result of this, co%yri&ht owners now en oy three cumulative layers of %rotection the first

layer is the basic legal %rotection of co%yri&ht law" $he second layer is the technical %rotection of

the wor)s achieved by technolo&ical %rotection measures" $he third and new layer is the legal

%rotection a&ainst the circumvention of the technolo&ical %rotection measures introduced by the

-!./ $reaties #"

$he %ur%ose of this %a%er is to define the meanin& of 3technolo&ical %rotection measures5"

$he first %art of this %a%er will %resent the two cate&ories of e'istin& technolo&ical %rotection

measures while %rovidin& some %ractical e'am%les of these technolo&ies, and will also illustrate

that these cate&ories can be combined"

$he second %art will analy8e the %rovision of the -!./ $reaties relatin& to technolo&ical

%rotection measures, whereas the third %art will %resent different national le&islations (U"S"A,

E All !nternet citations were current as of March 16, 6221F the research for this %a%er has been s%onsored by a &rantfrom the Swiss ational Science HoundationF the author can be reached at w@0 Icolumbia"edu "1 /n the 9uestion of intellectual %ro%erty in the di&ital era, one can refer to the e'cellent %ublication of the ational+esearch Council, $he Di&ital Dilemma !ntellectual .ro%erty in the !nformation A&e (6222 available atwww"na%"edu


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4uro%ean Union, a%an and Australia that have already im%lemented or are about to im%lement

the %rovisions of the -!./ $reaties"

!t is im%ortant to mention that the im%lementin& le&islations deserve %articular attention, not only

because the %rovision in the -!./ $reaties is very &eneral or even unclear , but, more basically,

because these $reaties only define minimal standards of %rotection which can be e'tended by

national le&islations *"

II* Typologies of e isting technological protection measures

Hirst of all, and as a %reliminary warnin&, it is necessary to ma)e clear that this overview of

e'istin& technolo&ical %rotection measures is not (and cannot be com%rehensive because of the

constant evolution of the technolo&ies @"

!n s%ite of this, technolo&ical %rotection measures have usually be defined as fittin& into two

cate&ories technolo&ies controllin& access to the wor)s (A and technolo&ies controllin& the use

of the wor)s (B "

A* Technological protection measures controlling the access to the $or-s

$his ty%e of technolo&ical %rotection measure %revents any unauthori8ed %erson to &ain access to

a co%yri&ht %rotected wor)" A technolo&y %rotectin& the access to a di&ital wor) can be com%ared

to loc)in& u% the door of a room in which a wor) (a boo) is located" $o continue the analo&y,

3=$>he act of circumventin& a technolo&ical %rotection measure %ut in %lace by a co%yri&ht owner

to control access to a co%yri&hted wor) is the electronic e9uivalent of brea)in& into a loc)ed

room in order to obtain a co%y of the boo)"5 0

$echnolo&ies %rotectin& access can be im%lemented in different ways 12" !n the on:line

environment, access to the %rotected content is fre9uently controlled by an identification

As it will be seen below, !!!"* $homas C" ?in e, Co%yri&ht !m%erilled;, 61 4"!"."+" 106, 621 (1000 "@ As accurately e'%ressed in a %a%er of the !nternational !ntellectual .ro%erty Alliance (!!.A entitled 3$he Anti:

Circumvention /bli&ations of the -!./ $reaties $heir !m%lementation in ational Law5 of March 1000, at # 3inthe technolo&y of electronic commerce, the only constant is chan&e5" As it will be seen below (!!" C" , the distinction between access and use can lead to difficulties, because it can occur

that these two ty%es of technolo&ies are combined or even that they are mer&ed in one sin&le technolo&y"0 "+" +e%" o" 12 : 1, %t" 1, at 1@ (100 , as 9uoted by David immer, A +iff on Hair Use in the Di&italMillennium Co%yri&ht Act, 1# U" .enn" L" +" *@7, * * (6222 "12 See, for e'am%le, Storm Impact, Inc. v. Software of the Month Club , 17 H" Su%%" 6d @ 6 ( "D" !ll 100@ (sharewareallowin& access to only a %art of a com%uter &ame, the access to the whole &ame bein& &iven only to re&istered usersthan)s to a com%uter loc) and )ey system F see also the 3Secret andsha)e5 identification system in the

Realnetworks, Inc. v. Streambox, Inc. , 6222 U"S" Dist" L4 !S 1 0 (-"D" -ash" 6222 , e'%lained at E*"


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%rocedure11" $he access control can also occur in the s%here of the end user without his active

intervention (for cable $? services, the access control is reali8ed throu&h the use of a set to% bo',

a blac) bo', which decry%ts the encry%ted si&nal received over the cable networ) "

Many of the technolo&ies controllin& access are based on a system of encry%tion" 4ncry%tion

means di&ital scramblin& of the content to %revent its use unless descrambled (decry%ted with a

%ro%er )ey" $he )eys necessary to decry%t are delivered only to authori8ed users and


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infrin&in& other e'clusive ri&hts of the co%yri&ht owners 10" Hor instance, a multimedia %roduct

(CD:+om can be %rotected by a technolo&ical measure in order to %revent not only its mere

du%lication, but also its use on a networ) 62" A technolo&ical %rotection measure for audio (and

video content could also be develo%ed in order to %revent the streamin& of these wor)s on the

!nternet" Because streamin& 3does not co%y the music onto the listenerJs hard drive5 61, but

3merely allows her to hear it5 66, such a technolo&y would mainly %revent the infrin&ement of the

ri&ht of %ublic %erformance and the ri&ht of distribution, and not the ri&ht of re%roduction 67"

As a conse9uence, this ty%e of technolo&ical %rotection measures should &enerally be defined as

3use controls5 6#"

owever, copy %rotection measures have been u% to now the most widely a%%lied use control

%rotection measures 6 "

!n the U"S", anti:co%y technolo&ical %rotection measures have been enacted in the SerialCo%yri&ht Mana&ement System (SCMS as %art of the 1006 Audio ome +ecordin& Act (PP

1221 Q 1226 of the Co%yri&ht Act " $his system has the %ur%ose to ma)e sure that only master

co%ies can be used as a basis for co%yin&, while %rohibitin& the ma)in& of further co%ies from

any e'istin& co%y 6*" $he U"S" Di&ital Millennium Co%yri&ht Act (DMCA, P 1621 () has

introduced another anti co%yin& %rotection mechanism (which is in force since A%ril 6 , 6222 6@

entitled 3automatic &ain control co%y control technolo&y5 which has been develo%ed by and is

10 Under U"S" co%yri&ht law, the technolo&ical %rotection measures can %rotect all the e'clusive ri&hts mentioned in P12* of the Co%yri&ht ActF these technolo&ies have therefore been defined as 3mesures techni9ues %rotR&eant lesdroits dJauteur5 (A" Strowel


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)nown as 3Macrovision5 6 " $his technical %rotection measure %revents the ma)in& of co%ies of

s%ecifically defined transmission of audiovisual wor)s (i"e" audiovisual wor)s dis%layed on %ay

$?F %ay:%er viewsF videocassettes by two %ractical means" 4ither this technolo&y com%letely

%revents the ma)in& of co%ies of such audiovisual %roducts or it does intentionally deteriorate the

9uality of the recordin& by im%lementin& a si&nal on the recordin& 3that, when %layed bac),

e'hibits a meanin&fully distorted or de&raded dis%lay5 (P 1621 () (# (c (ii "

C* /elation (et$een access and use protection measures

Some technolo&ical %rotection measures can control both the access and the use of the wor)s"

$his is for instance the case of the Content Scramble System (CSS , which is the encry%tion:

based technolo&ical %rotection measure used for D?Ds" $he CSS re9uires the use of

a%%ro%riately confi&ured hardware (such as D?D %layers or com%uters to decry%t, unscramble

and %lay bac) motion %ictures on D?Ds 60" As a result, CSS has been 9ualified as both an 3access

control and co%y %revention system for D?D5 72" $he overla%%in& of the two ty%es (access


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the lan&ua&e of section 1621 nor the le&islative history addresses the %ossibility of access

controls that also restrict use" !t is unclear how a court mi&ht address this issue" !t would be

hel%ful if Con&ress were to clarify its intent, since the im%lementation of mer&ed technolo&ical

measures ar&uably would undermine Con&ressJs decision to offer dis%arate treatment for access

controls and use controls in section 1621"

At %resent, on the current record, it would be im%rudent to venture too far on this issue in the

absence of con&ressional &uidance" $he issue of mer&ed access and use measures may become a

si&nificant %roblem" $he Co%yri&ht /ffice intends to monitor this issue durin& the ne't three

years and ho%es to have the benefit of a clearer record and &uidance from Con&ress at the time of

the ne't rulema)in& %roceedin& =under P 1621 (a >"5 77

!t is difficult to see whether the le&al distinction made between access and use of the wor)s can

be maintained in the future" !n any case, it a%%ears that a re&ulation, li)e the DMCA, whichma)es a distinction between access control and use control technolo&ical %rotection measures is

not 3technolo&y neutral5 7# and mi&ht %rove difficult to a%%ly in %ractice"

III* The WIPO Treaties

!n order to understand the %resent wordin& of the %rovision on technolo&ical %rotection measures

which has eventually been enacted in the -!./ $reaties, it is first necessary to consider the

historical evolution of this %rovision"

Article 17 (7 of the Basic %ro%osal 7 entitled 0=/>bli&ations concernin& $echnolo&ical

Measures5 defined technolo&ical %rotection measures as 3any %rocess, treatment, mechanism or

system that %revents or inhibits any of the acts covered by the ri&hts under this $reaty5"

$he main element of this definition is that technolo&ical %rotection measures are defined by their

purpose, which is to %revent or inhibit any infrin&ement of co%yri&ht law"

$he Basic %ro%osal thus ado%ts a functionalist definition of the technolo&ical %rotection

measures" $his is an efficient way to re&ulate technolo&y:related issues, because of the constant

evolution of this field" $his a%%roach, based on the fundamental %rinci%le that technolo&y:relatedre&ulations should remain 3technolo&y neutral5 7*, has been &enerally followed by national

le&islators im%lementin& the -!./ $reaties"77 * Hed" +e&" at *# * "7# /n this conce%t, see below !!!"7 Basic .ro%osal for the Substantive .rovisions of the $reaty on Certain Ouestions Concernin& the .rotection ofLiterary and Artistic -or)s to be Considered by the Conference, %re%ared by the Chairman of the Committee of4'%erts on a .ossible .rotocol to the Berne Convention (-!./ doc" C+ +


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Durin& the di%lomatic conference held in Geneva in December 100*, which led to the ado%tion of

the -!./ $reaties, an amendment to re%lace Article 17 of the Basic .ro%osal was %ro%osed by

several countries 7@" $his amendment defined the technolo&ical measures as technolo&ies 3that are

used by ri&hts holders in connection with the e'ercise of their ri&hts under this $reaty and that

restrict acts, in res%ect of their wor)s, which are not authori8ed by the ri&hts holders concerned or

%ermitted by law"5 $his wordin& was ado%ted in the final te't of the -C$ (with minor

amendments " Art" 11 -C$ entitled 3=/>bli&ations concernin& $echnolo&ical Measures5

%rovides that 7

Contractin& .arties shall %rovide ade9uate le&al %rotection and effective le&al

remedies a&ainst the circumvention of effective technolo&ical measures that are used

by authors in connection with the e'ercise of their ri&hts under this $reaty or the

Berne Convention and that restrict acts, in res%ect of their wor)s, which are not

authori8ed by the authors concerned or %ermitted by law"

Art" 1 -..$ has ado%ted a similar wordin& with res%ect to the ri&hts of %erformers and

%roducers of %hono&rams70" Given that no detailed definition of technolo&ical %rotection

measures is &iven in the -!./ $reaties (or in any other -!./ official documents #2, the national

le&islators en oy an im%ortant freedom in the im%lementation of art" 11 -C$ #1, as lon& as they

&rant a sufficient level of %rotection to technolo&ical %rotection measures"

Before turnin& to national laws, it is however im%ortant to analy8e more %recisely the differentelements of the definition of the technolo&ical %rotection measures made in art" 11 -C$"

A* Definition of the technological protection measures in the WIPO Treaties

1* 0 ffecti"e2 technological protection measures

$he first element to be analy8ed in the definition of art" 11 -C$ is the word 3effective5" As

stated by commentators, 3what e'actly constitutes an TeffectiveJ measure is unclear"5 #6

7* See ." Samuelson, Hive Challen&es for +e&ulatin& the Global !nformation Society, at

www"sims"ber)eley"edu


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Some have ar&ued that the effectiveness re9uirement was inserted in order to ma)e sure that

technolo&ical %rotection measures which can be too easily circumvented #7 or which can even be

circumvented 3by accident5 should not be le&ally %rotected ##"

!t has also been noted that technolo&ical %rotection measures that would indeed be com%letely

efficient # , meanin& that they could not be circumvented at all, do not need any le&al %rotection #*"

A %ossible e'%lanation for the introduction of the 3effectiveness5 re9uirement in art" 11 -C$ is

that some ne&otiatin& %arties (in %articular the United States wanted to be able to challen&e

forei&n national le&islations for the case that these le&islations would not offer a sufficient level

of %rotection to technolo&ical %rotection measures #@"

!n any case, due to the uncertainty surroundin& its meanin&, the term 3effective5 has been defined

Q in various ways : in several national le&islations im%lementin& art" 11 -C$ # "

3* Technological protection measures 0used (y authors in connection $ith

the e ercise of their rights under this Treaty or the .erne Con"ention2

$he second element of the definition of the technolo&ical %rotection measures made in art" 11

-C$ is that they must be 3used by authors in connection with the e'ercise of their ri&hts under

this $reaty or the Berne Convention5" $his means that the le&al %rotection of technolo&ical

%rotection measures can be &ranted only to technolo&ies used by ri&hts holders #0 in connection

with the e'ercise of a ri&ht %rotected by co%yri&ht law 2 "

!t results from this re9uirement that technolo&ical %rotection measures %rotectin& data that are not %rotected under co%yri&ht law 1 or %rotectin& wor)s that are in the %ublic domain 6 do not fall

#7 AndrR Lucas, Droit dJauteur et numRri9ue, .aris 100 , 6@# (X = > le droit nJa %as Y venir au secours de celui 9uinJutilise mZme %as toutes les ressources de la techni9ue" [## oelman< elber&er, at 0"# !n this res%ect, it can be noted that 3effective5 is used twice in art" 11 -C$, first to 9ualify the le&al remedies(3effective le&al remedies5 and second to 9ualify the technolo&ical measures (3 effective technolo&ical measures5(em%hasis added "#* %niversal City Stu!io Inc. v. Reimer!es , 111 H" Su%%" 6d 60# (S"D" "V" 6222 , at 71 "#@ ." Samuelson, $he U"S" Di&ital A&enda at -!./, 7@ ?a " !ntJl L" 7*0, at ## (100@ "# See the definitions made in the DMCA (!? and in the 4uro%ean Directive (?"A"1" below"#0

4ven if art" 11 -C$ does only e'%ressly refer to 3authors5, this does not e'clude the subse9uent ri&ht holders fromen oyin& the %rotection &ranted by this %rovision, in the same way as all the other %rovisions of the -C$ (and of theother international co%yri&ht treaties, in %articular the Berne Convention &rantin& s%ecific e'clusive co%yri&hts doalso only refer to authors"2 oelman< elber&er, at 0:12, considerin& that technolo&ical %rotection measures must be used by authors 3toe'ercise co%yri&hts"51 Hor instance, in the United States, a mere 3sweat of the brow5 com%ilation of data is not sufficiently ori&inal to be

%rotected by co%yri&ht law after the &eist Su%reme Court decision in 1001 (#00 U"S" 7#2 "6 A difficult issue arises when a %ublic domain wor) is \wra%%ed u%\ in a new %rotected wor)" $his %roblem has

been identified by ud&e a%lan in the Universal City Studio case, 111 H" Su%%" 6d, at 77 n" 6# \= > the

11


12/41

within the sco%e of a%%lication of art" 11 -C$, because these technolo&ical %rotection measures

are not used by authors 3in connection with the e'ercise5 of a co%yri&ht"

4* Technological protection measures 0that restrict acts, in respect of their

$or-s, $hich are not authori5ed (y the authors concerned or permitted (y

la$2

Art" 11 -C$ finally re9uires technolo&ical %rotection measures to be used in order to 3restrict

acts, in res%ect of their wor)s, which are not authori8ed by the authors concerned or %ermitted by

law"5 A literal inter%retation of art" 11 -C$ im%lies to consider that the last two conditions are

cumulative technolo&ical %rotection measures must both be 3used by authors in connection with

the e'ercise of their ri&hts under this $reaty or the Berne Convention5 an! 3restrict acts, in

res%ect of their wor)s, which are not authori8ed by the authors concerned or %ermitted by law"5

$his means that is not enou&h that technolo&ical %rotection measures are used 3in connection

with the e'ercise5 of a co%yri&ht" !n addition to this, technolo&ical %rotection measures must also

restrict acts that are %rotected by co%yri&ht law in order to be within the ambit of art" 11 -C$ 7 "

As a conse9uence, circumventin& a technolo&ical %rotection measure in order to use a wor) while

benefitin& from one of the e'ce%tions to co%yri&ht (for instance for fair use %ur%oses # will not

be %rohibited by art" 11 -C$ " $his means that only the circumvention of technolo&ical

%rotection measures for infringing purposes will fall within the sco%e of art" 11 -C$ * " $he

%ur%ose of this third re9uirement is to ma)e sure that there is a conver&ence between the

encry%tion of such a wor) =a %ublic domain wor)> with a new %reface or introduction mi&ht result in a claim toco%yri&ht in the entire combination" !f the combination then were released on D?D and encry%ted, the encry%tionwould %reclude access not only to the co%yri&hted new material, but to the %ublic domain" As the DMCA is not yettwo years old =his decision was filed on Au&ust 1@, 6222>, this does not yet a%%ear to be a %roblem, althou&h it mayemer&e as one in the future"\F more &enerally, this issue relates to the %rotection of 3thin co%yri&ht5 wor)s which aredefined as 3wor)s consistin& %rimarily (but not entirely of matter un%rotected by co%yri&ht, such as U"S"&overnment wor)s or wor)s whose term of co%yri&ht %rotection has e'%ired, or wor)s for which co%yri&ht %rotectionis TthinJ, such as factual wor)s5, * Hed" +e&" at *# **F for this ty%e of wor)s, the dan&er has been identified that a

stiff %rotection a&ainst circumvention would have the conse9uence to create a new le&al %rotection for material non %rotected by co%yri&htF in s%ite of this ar&ument, no s%ecific e'em%tion on the %rohibition of circumvention has been&ranted by the Librarian of Con&ress in the course of the rulema)in& %rocedure of the DMCA, see * Hed" +e&"*# **F on this %rocedure, see below !?"B"6"7 amiel oelman, A ard ut to Crac) $he .rotection of $echnolo&ical Measures, 66 4"!"."+" 6@6 (6222 3/nlya&ainst circumvention of a technolo&ical measure which restricts an act not %ermitted by the law must %rotection be

%rovided5"# As &enerali8ed by art" 12 -C$ (three ste%s test " Lucas, at 6@1"

* oelman< elber&er, at 6@"

16


13/41

res%ective sco%es of %rotection of technolo&ical %rotection measures and of co%yri&ht law @" !t

should however be noted that this inter%retation is not undis%uted "

$he im%ortance of this third re9uirement can be %erceived in connection with technolo&ical

%rotection measures which %rotect business methods (for instance the &eo&ra%hical distribution of

wor)s 0 " 4ven if these technolo&ies can be considered to meet the second re9uirement *2, they

will not meet the third one, because they do not %rotect any ri&ht &ranted by co%yri&ht"

.* Issues not dealt $ith in the WIPO Treaties

1* Does the re)uirement of 0ade)uate legal protection2 %art* 11 WCT' call

for a copyright specific anti6circum"ention regulation7

Art" 11 -C$ does not s%ecifically re9uire the anti:circumvention re&ulation to be inte&rated in

the co%yri&ht le&islation" As a conse9uence, the Contractin& states are free to im%lement this

%rotection in any ty%e of le&islations *1 for instance, in com%uter crime and


14/41

3* What conduct is prohi(ited %act of circum"ention and8or (usiness of

traffic-ing in circum"enting de"ices 9preparatory acti"ities:'7

$his is a fundamental 9uestion which act accom%lished in connection with the circumvention of

technolo&ical %rotection measures should be %rohibited and conse9uently who should be liable;

$here are three a%%roaches the act of circumvention itself (the circumventer should be liable F

the business'trafficking in circumventin& technolo&ies (the %erson who &ives


15/41

I;*!nited States

A* Introduction

As an introductory remar), it should be noted that the %rotection of technolo&ical %rotection

measures enacted in the Di&ital Millennium Co%yri&ht Act (DMCA in /ctober 100 is 9uitedetailed *@, if not 3fiendishly com%licated5 * " !t is therefore not sur%risin& that this re&ulation has

%rovo)ed numerous comments and analyses in the le&al literature *0" .resentin& the details of the

DMCA (and all the critical remar)s formulated a&ainst it would &o beyond the sco%e of this

%a%er" !n &eneral terms, critical comments have been formulated a&ainst the DMCA because it is

said to create a 3%ay:%er:use society5 @2" $he DMCA has indeed created, by indirect means @1, a

new 3ri&ht of access5 to the wor)s in favor of the co%yri&ht owners" Under the re&ime of the

DMCA, unless the user can benefit from a s%ecific e'em%tion that would allow her to circumvent

the technolo&ical access control to &et access to a di&ital wor) @6, each access to the wor) will be

submitted to the conditions im%osed by the co%yri&ht owners (&enerally the %ayment of a fee "

$echnolo&ical %rotection measures mi&ht also %revent the ma)in& of a co%y of the wor) so that

the user is obli&ed to access to it on:line if she wants to use


16/41

$he system of the DMCA is therefore said to threaten the balance of interests between co%yri&ht

owners and users of the wor)s to the advanta&e of co%yri&ht owners @#" $hus, the 9uestion has

arisen 3will fair use survive;5 @" !n this res%ect, even thou&h P 1621 (c (1 e'%ressly %rovides

that 3nothin& in this section shall affect ri&hts, remedies, limitations, or defenses to co%yri&ht

infrin&ement, includin& fair use, under this title5, this has little %ractical im%ortance, because fair

use is only a defence to co%yri&ht infrin&ement, but not to the inde%endent %rohibition on

circumvention based on P 1621 @*" !n other words, even if fair use e'ists, fair access does not"

$he system of %rotection of technolo&ical %rotection measures im%lemented in the DMCA is

twofold, and is based on the distinction between access %rotection and use %rotection measures @@"

.* Circum"ention of a technological measure protecting the access to the

$or-

P 1621 (a %rohibits the unauthori8ed access to a wor) by outlawin& two different conducts the

act of circumvention (1" and the business of traffic)in& in circumventin& technolo&y (6" "

1* Act of circum"ention

P 1621 (a (A (1 %rohibits the act of circumventing a technolo&ical %rotection measure (3 o

%erson shall circumvent a technolo&ical measure that effectively controls access to a wor)

%rotected under this title"5 "

Due to the ambi&uity of the word 3effective5 in art" 11 -C$, the DMCA defines the terms

3effectively controls access5 in P 1621 (a (7 (B which %rovides that 3a technolo&ical measure

Teffectively controls access to a wor)J if the measure, in the ordinary course of its o%eration,

re9uires the a%%lication of information, or a %rocess or a treatment, with the authority of the

co%yri&ht owner, to &ain access to the wor)"5

P 1621 (a (7 (A %rovides that 3to Tcircumvent a technolo&ical measureJ means to descramble a

scrambled wor), to decry%t an encry%ted wor), or otherwise to avoid, by%ass, remove, deactivate,

or im%air a technolo&ical measure, without the authority of the co%yri&ht owner"5

@# See the article of immer (9uoted above , passim "@ See ulie C" Cohen, -!./ Co%yri&ht $reaty !m%lementation in the United States, -ill Hair Use Survive;, 61 4!.+67* (1000 "@* $his view has been ado%ted by ud&e a%lan in the %niversal City Stu!io v. Reimer!es case , 111 H" Su%%" 6d, at761:76# (on the basis of an inter%retation of the 3crystal clear5 Con&ressional intent F see however " C" Ginsbur&,Co%yri&ht Use and 4'cuse on the !nternet, 6# Col" ?LA " L ] Arts 1, at :0 (6222 "@@ /n this distinction, see above !!"F this distinction does not e'clude the %ossibility that a circumventin& technolo&yviolates both the anti access and the anti co%y %rovisions of the DMCA, see Realnetworks, Inc. v. Streambox, Inc. ,6222 U"S" Dist" L4 !S 1 0 (-"D" -ash" 6222 "

1*


17/41

$he sco%e of a%%lication of the %rohibition on circumvention of access %rotection measures can

be further e'em%lified by ta)in& two %ractical e'am%les

a' Does the a(use of an identification procedure constitute a

circum"ention of a technological protection measure7

As stated above @ , the access control to a %rotected content in the on:line environment can be

accom%lished throu&h the use of an identification %rocedure (%assword and


18/41

(' Does the use of a 0deep lin-2 constitute a circum"ention of a

technological protection measure7

Another 9uestion is to )now whether the circumvention of a technolo&y %reventin& dee% lin)in& 1

mi&ht constitute a circumvention of an access control technolo&y"

As an e'am%le, the access to the sub%a&es of the V$imes on the web is %ossible only to the

subscribers of V$imes"com" !f an unre&istered user tries to access to the sub%a&es of the site

(by usin& a lin) , the access %rotection technolo&y will directly ta)e the user to the 3si&n in5 %a&e

of the V$imes 6 " Dee% lin)in& is therefore not %ossible" $his means that there is a technolo&y

that %rotects the unauthori8ed access to these sub%a&es" $his technolo&y 3effectively controls

access to a wor)5 7 within the meanin& of the DMCA" -hat if a %erson develo%s a circumventin&

technolo&y which would allow to by%ass this access control (allowin& the unre&istered user to

access to the sub%a&es of the V$imes and im%lements it in a dee% lin) on his own website

(lin)in& site ; $his ty%e of circumvention fits in the le&al definition of 3to circumvent a

technolo&ical measure5, because it avoidso %erson shall circumvent a technolo&ical measurethat effectively controls the access to a wor) %rotected under this title5 @" owever, P 1627 ( (A

1 $his %rotectin& technolo&y would 3)ic) bac)5 the dee% lin) user to the home%a&e of the lin)ed:to website in ordereither to sim%ly &et a hit on the home%a&e for advertisin& %ur%oses or to obli&e the user to &et throu&h a useridentification systemF on the infrin&in& nature of dee% lin)in& under co%yri&ht law, see (os Angeles )imes v. &ree

Republic , # U"S"."O"6d 1# 7 (C"D" Cal", A%ril #, 6222 "6 See the 3si&n in5 %a&e at www"nytimes"com


19/41

%rovides that 3the court in its discretion may reduce or remit the total award of dama&es in any

case in which the violator sustains the burden of %rovin&, and the court finds, that the violator

was not aware and had no reason to believe that its acts constituted a violation5" $he user of a

circumventin& dee% lin) mi&ht be a %erfect candidate for this e'em%tion for 3innocent

violations5"

3* The rulema-ing procedure

$he %rohibition of the act of circumvention has ust entered into force on /ct" 6 , 6222 "

Durin& the 6:year %eriod since the enactment of the DMCA (on /ct" 6 , 100 , the Library of

Con&ress, u%on the recommendation of the +e&ister of Co%yri&hts, had to define, accordin& to a

rulema)in& %ower based on P 1621 (a (1 (C , %otential 3%articular class=es> of wor)s5 0 which

could be e'cluded from the &eneral %rohibition of circumvention set forth by P 1621 (a (1 (A "

/n the basis of this rulema)in& %ower, the Librarian has been re9uired to 3%ublish any class of

co%yri&hted wor)s for which the Librarian has determined, %ursuant to the rulema)in& conducted

under sub%ara&ra%h (C , that non:infrin&in& uses by %ersons who are users of a co%yri&hted wor)

are, or are li)ely to be, adversely affected, and the %rohibition contained in sub%ara&ra%h (A

=%rohibition of circumventin& access control technolo&y> shall not a%%ly to such users with

res%ect to such class of wor)s for the ensuin& 7:year %eriod"5 (P 1621 (a (1 (D "

/n /ct" 6 , 6222, the Librarian has ruled that only two narrow classes of wor)s will benefit from

the e'em%tion of %rohibition durin& the ne't 7:year %eriod (runnin& until /ct" 6 , 6227 (whichmeans, in clear words, that the circumvention of technolo&ical %rotection measures to &et access

to the followin& classes of wor)s will not constitute a violation of P 1621(a (1 02

P 1621 (a (1 (A second sentence"0 P 1621 (a (1 (B %rovides that 3the %rohibition contained in sub%ara&ra%h (A shall not a%%ly to %ersons who areusers of a co%yri&hted wor) which is in a %articular class of wor)s, if such %ersons are, or are li)ely to be in thesucceedin& 7:year %eriod, adversely affected by virtue of such %rohibition in their ability to ma)e noninfrin&in& usesof that %articular class of wor)s under this title, as determined under sub%ara&ra%h C =P 1621 (a (1 (C defines more

%recisely what factors of a%%reciation should be considered by the Librarian of Con&ress in the course of hisrulema)in& %rocedure, amon& which is the Tim%act of the %rohibition on the circumvention on comment, newsre%ortin&, teachin&, scholarshi%, or researchJ"502 4'em%tions to .rohibition on Circumvention of Co%yri&ht .rotection Systems for Access Control $echnolo&ies,Hinal +ule, * Hed" +e&" *# * (/ct" 6@, 6222 (to be codified at 7@ CH+ .art 621 "

10


20/41

: Com%ilations consistin& of lists of websites bloc)ed by filterin& software a%%lications 01

(e'am%le a com%ilation of %orno&ra%hic websites contained in filterin& software used to

%revent uvenilesJ access to such materialF the act of circumventin& access control

measures to &ain access to such a list is not unlawful 06"

: Literary wor)s, includin& com%uter %ro&rams and databases, %rotected by access control

mechanisms that fail to %ermit access because of malfunction, dama&e or obsoleteness

(the rationale for this e'em%tion is 9uite clear 3in cases where le&itimate users are unable

to access wor)s because of dama&ed, malfunctionin& or obsolete access controls, the

access controls are not furtherin& the %ur%ose of %rotectin& the wor) from unauthori8ed

users"5 07

$he re%ort of the Librarian of Con&ress is 9uite lon& and com%le' and its detailed analysis would

&o beyond the %ur%ose of this %a%er" owever, this rulema)in& %rocedure raises several basic9uestions that must be mentioned here

a' Is this rulema-ing procedure the appropriate $ay to regulate the

(alance of interests standing at the core of copyright la$7

Basically, the rulema)in& %rocedure mi&ht well become the most im%ortant means to define the

sco%e of co%yri&ht and the e'tent of the %ermissible e'em%tions to co%yri&ht %rotection in the

di&ital a&e0#" $his tas) has so far been accom%lished by Con&ress and by the courts 0 , which have

hel%ed to desi&n a reasonable and balanced system of co%yri&ht %rotection" $he 9uestiontherefore is should not Con&ress and the courts a%%lyin& the federal statute (thus %ermittin& a

01 $his class of wor)s can be %ut in correlation with P 1621 (h which %rovides that 3in a%%lyin& subsection (a to acom%onent or %art, the court may consider the necessity for its intended and actual incor%oration in a technolo&y,

%roduct, service, or device which(1 does not itself violate the %rovisions of this titleF and(6 has the sole %ur%ose to %revent the access of minors to material on the !nternet"506

Short before the rulema)in& was %ublished, a court &ranted an in unction a&ainst the authors of a %ro&ramdecry%tin& the list of bloc)ed websites, Microsystems Software Inc., v. Scan!inavian *n(ine A+ , o" 22:1 27 (1 st

Cir" Se%t" 6@, 6222 "07 * Hed" +e&" at *# * "0# 4ven thou&h formally the rulema)in& %rocedure do not %ro%erly refer to co%yri&ht law, but only to access control(which is not one of the e'clusive ri&hts enumerated in P 12* of the Co%yri&ht Act , it is clear (and has also beenidentified as such by scholars that access control is already (and will increasin&ly be in the future the mostim%ortant means to control the use of the %rotected wor)s in the di&ital conte't"0 See immer, at *0@, stressin& the fact that this rulema)in& %rocedure is a 3de%arture from normal = udicial>

%ractice5"

62


21/41

fle'ible a%%lication of the statutory %rinci%les, in %articular fair use , instead of an administrative

body, continue to define the %recise sco%e of %rotection of co%yri&ht law 0*;

$he o%inion of the Librarian of Con&ress seems to confirm the difficulty of the tas) that he has

been assi&ned" At several %laces in his re%ort, the Librarian of Con&ress has indeed e'%ressed the

view : by re9uestin& the &uidance from Con&ress : that the issue should rather be addressed by

Con&ress and not by him (in the course of the rulema)in& %rocedure "

A ustification of the rather narrow sco%e of the e'em%tions &ranted on the basis of the

rulema)in& %rocedure has further been &iven in the re%ort where it is stated that 3these

recommendations =made by the +e&ister of Co%yri&hts to the Librarian of Con&ress> may seem

modest in li&ht of the swee%in& e'em%tions %ro%osed by many commenters and witnesses, but

they are based on a careful review of the record and an a%%lication of the standards &overnin& this

rulema)in& %rocedure" -hile many commentators and witnesses made elo9uent %olicy ar&umentsin su%%ort of e'em%tions for certain ty%es of wor)s or certain uses of wor)s, such ar&uments in

most cases are more a%%ro%riately directed to the le&islator rather to the re&ulator who is

o%eratin& under the constraints im%osed by section 1621(a (1 "5 0@

/n the other hand, some commentators have s%o)en in favor of a broader sco%e of the

rulema)in& %rocedure in order to include the 3whole of the anti:circumvention %rovisions5 0 of

the DMCA (and not only, as it is %resently the case, the anti:access circumvention %rovision ,

because of the ne&ative effect that these %rovisions can have on the com%etition and innovation in

the information technolo&y field" !n any case, the %resent rulema)in& %rocedure does not a%%ear

to be the a%%ro%riate tool to monitor the com%le' issues of co%yri&ht in the di&ital era"

(' Is it $ise or e"en practica(le to (ase an e emption system on

0classes of $or-s27

As mentioned above, e'em%tions (allowin& to circumvent anti:access %rotection measures can

be &ranted only for a 3%articular class of wor)s5" /ne of the %roblems faced by the Librarian of

Con&ress in the course of the rulema)in& %rocedure was %recisely to define what is a 3%articular

class of wor)5" 3Class5 is similar, but not identical to the 3cate&ories5 of wor)s mentioned in P

126 of the Co%yri&ht Act" !n short, this terminolo&ical choice a%%ears unwise because it is more

the %otential uses of the wor)s (for instance uses for research %ur%oses than the categories or

0* Cohen, at 67 (raisin& another constitutional concern =the violation of the se%aration of %owers> "0@ * Hed" +e&" at *# *6"0 Samuelson (1000 , at *1"

61


22/41

classes of the wor)s, which should be considered in order to decide whether an e'ce%tion should

be &ranted"

As a result, the narrow conce%t of classes of wor) defined by the Librarian of Con&ress has had

the conse9uence to eliminate several %ro%ositions made in order to obtain an e'em%tion from the

%rohibition on circumvention 00"

c' What a(out the practical use of the e emptions once granted7

/ne much more fundamental deficiency of the system is that, even if a s%ecific class of wor)s is

identified as not bein& %rotected a&ainst acts of circumvention (as, for instance, the com%ilations

of websites mentioned above , this e'em%tion mi&ht very well lac) any %ractical si&nificance,

because a %otential user of a circumventin& technolo&y, if she is not able to develo% it herself,

will not be able to obtain it from a third %arty, because, even if her act of circumventin& will be

declared lawful as a result of the e'em%tion, the %rohibition on traffic)in& in circumventin&

technolo&y will still be in force and be a%%licable to the act of third %arties 122"

$his situation can be e'em%lified as follows the user (because of the e'em%tion has now &ained

the ri&ht to unloc) the door of the room where the wor) is located, but no loc)smith has the ri&ht

to develo% and &ive


23/41

owever, the statute does not %rohibit every technolo&y that could be used to circumvent

technolo&ical %rotection measures" $o be %rohibited, the circumventin& technolo&y must indeed

meet any of the three followin& (alternative conditions 121

: 3be %rimarily desi&ned or %roduced for the %ur%ose of circumventin&5 the access

technolo&ical %rotection measure (P 1621 (a (6 (A F or

: 3 ave only limited commercially si&nificant %ur%ose or use other than to circumvent5 a

technolo&ical %rotection measure (P 1621 (a (6 (B F or

: be 3mar)eted by5 the %erson who traffics with the circumventin& technolo&y or 3by

another actin& in concert with that %erson with that %ersonJs )nowled&e for use in

circumventin&5 a technolo&ical %rotection measure (P 1621 (a (6 (C "

$his %rovision has been introduced in order to ma)e sure that manufacturers of usual consumer

electronics %roducts or of com%uter %roducts (be there hardware or software would not be heldliable by the mere fact that their %roducts could %otentially be used to circumvent technolo&ical

%rotection measures" Some uncertainty mi&ht result from the definition of the terms 3 primarily

desi&ned or %roduced for the %ur%ose of circumventin&5 and 3 limite! commercially significant

%ur%ose or use other than to circumvent5 (em%hasis added " Suffice is to say that these tests could

cause difficulties of inter%retation to the courts 126" $his 9uestion will also arise under the

a%%lication of other le&islations because they set u% a similar test 127" $his 3%rimary

%ur%ose5


24/41

conse9uence, 3=4>9ui%ment manufacturers in the twenty:first century will need to vet their

%roducts for com%liance with Section 1621 in order to avoid a circumvention claim, rather than

under Sony to ne&ate a co%yri&ht claim"512*

P 1621 (c (7 %rovides that manufacturers of consumer electronics, telecommunications, and

com%utin& %roducts are not re9uired to desi&n their %roducts to res%ond to any %articular

technolo&ical %rotection measure ( no man!ate %rovision 12@" $his %rovision has been inserted at

the re9uest of consumer electronics and com%uter industries, which feared that section 1621

otherwise mi&ht re9uire ?C+s and .Cs to res%ond to unilaterally im%osed technolo&ical

%rotection measures 12 "

$he DMCA however contains one e'ce%tion to the no man!ate %rovision P 1621 () re9uests

analo&ue ?C+s to res%ond to the anti:co%y Macrovision technolo&y as of A%ril 6 , 6222 120"

C* Circum"ention of technological measures protecting the use of the $or-s

$he DMCA does not outlaw the act of circumventin& a technolo&ical %rotection measure

%rotectin& the use of the wor) 112 , but only %rohibit the %re%aratory activities" Hor e'am%le, the act

of circumventin& a technolo&ical co%y control mechanism im%lemented on a com%uter software

in order to ma)e a co%y of this software does not infrin&e P 1621 (b " $he decision of Con&ress

not to %rohibit the act of circumventin& a technolo&ical measure %rotectin& a co%yri&ht was made

because it would otherwise %enali8e %otential non:infrin&in& uses such as fair use 111 "

$herefore, only the business of traffic)in& in circumventin& technolo&y is %rohibited by P 1621(b " $he definition of traffic with circumventin& technolo&y is identical to the one &iven in

12* !bid"F see also Realnetworks, Inc. v. Streambox, Inc ", 6222 U"S" Dist" L4 !S 1 0, at E67 and %niversal CityStu!ios, Inc. v. Reimer!es , 111 H" Su%%" 6d, at 767 (both 9uotin& this section of the treatise "12@ $he non mandate %rovision of P 1621 (c (7 3does not %rovide immunity for %roducts that circumvent

technolo&ical measures in violation of Sections 1621(a (6 or (b (1 "5 !f this were the case, 3any manufacturer ofcircumvention tools could avoid DMCA liability sim%ly by claimin& it chose not to res%ond to the %articular %rotection that its tool circumvents"5 Realnetworks, Inc. v. Streambox, Inc ", 6222 U"S" Dist" L4 !S 1 0, at E6 "12 ?in e, at 62#"120 See Mar)s


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connection with the access control %rotection measure 116 , while the notion of circumvention has a

similar wordin& 117"

P 1621 (b (6 (B defines that a technolo&ical measure 3 Teffectively %rotects a ri&ht of a co%yri&ht

owner under this titleJ if the measure, in the ordinary course of its o%eration, %revents, restricts,

or otherwise limits the e'ercise of a ri&ht of a co%yri&ht owner under this title"5

/n this basis, technolo&ical %rotection measures that do not %revent, restrict or otherwise limit

the 3e'ercise of a ri&ht of a co%yri&ht owner5 are not %rotected under P 1621 (b " As a

conse9uence, re&ion:codin& technolo&ies, which do not %rotect any ri&ht of a co%yri&ht owner 11# ,

are not included in the definition of P 1621 (b (6 (B " $hese technolo&ies however are still

%rotected under P 1621 (a because they are access control technolo&ies 11 "

D* Limited set of e ceptions

!n addition to the e'em%tions of 3%articular classes of wor)s5 which may be &ranted in the course

of the rulema)in& %rocedure conducted under P 1621 (a (1 11* , the DMCA contains several

s%ecific e'ce%tions %ermittin& the circumvention of technolo&ical %rotection measures in

%articular cases (e'em%tions for non%rofit libraries, archives, and educational institutionsF law

enforcement, intelli&ence, and other &overnmental activitiesF reverse en&ineerin&F encry%tion

researchF e'ce%tions re&ardin& minorsF %rotection of %ersonally identifyin& informationF security

testin& 11@" $he narrow sco%e of some of these e'ce%tions has been critici8ed for their resultin&

chillin& effect on technolo&ical innovation 11 " Hor instance, the a%%lication of the e'ce%tions forreverse en&ineerin& (P 1621 (f and for encry%tion research (P 1621 (& raised by the defendants

in the case relatin& to the software (DeCSS decry%tin& D?Ds has been denied 110"

116 Com%are P 1621 (a (6 (A :(C and P 1621 (b (1 (A :(C "117 P 1621 (b (6 (A %rovides that 3to Tcircumvent %rotection afforded by a technolo&ical measureJ means avoidin&,

by%assin&, removin&, deactivatin&, or otherwise im%airin& a technolo&ical measureF = >511#

See above !!!"A"7, as discussed in connection with art" 11 -C$"11 Althou&h it has been ar&ued that the circumvention of re&ion codin& %rotection should be lawful because thesetechnolo&ies unduly restrict the uses of the wor)s, the Librarian of Con&ress has denied to &rant an e'em%tion forthis %ur%ose, see above !?"B"6"11* See !?"B"6 above"11@ See P 1621 (d Q ( F see Michael Schlesin&er 4'ce%tions and Limitations on the .rohibition of Circumvention ofAccess Controls, and on the .rohibition on Circumvention of $echnolo&ical Measures .rotectin& $raditional +i&htsUnder Co%yri&ht (re%ort to the ALA! Con&ress 6221 "11 See Samuelson (1000 , at 7@ se9"110 %niversal City Stu!ios, Inc. v. Reimer!es , 111 H" Su%%" 6d, at 710:761"

6


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;* uropean !nion

$he le&al %rotection of technolo&ical %rotection measures in the 4uro%ean Union is based on

three le&al instruments" $he first 4uro%ean Directive dealin& with technolo&ical %rotection

measures was the Directive on the le&al %rotection of com%uter %ro&rams162

which %rovides (art"@ that 3Member States shall %rovide = > a%%ro%riate remedies a&ainst a %erson committin& = >

(c any act of %uttin& into circulation or the %ossession for commercial %ur%ose of, any means the

sole %ur%ose of which is to facilitate the unauthori8ed removal or the circumvention of any

technical device which may have been a%%lied to %rotect a com%uter %ro&ram5 161"

$he second instrument is the Directive on the harmoni8ation of certain as%ects of Co%yri&ht and

related ri&hts in the !nformation Society (Co%yri&ht in the !nformation Society Directive, C!SD ,

which is s%ecifically desi&ned to im%lement the obli&ations of the -!./ $reaties in the 4uro%ean

Union" /n Hebruary 1#, 6221, the common %osition of the Council (very sli&htly amended 166

was ado%ted by the 4uro%ean .arliament 167 and the Directive has eventually been a%%roved by the

Council on A%ril 0, 6221 16#"

$he third instrument is the Directive on the le&al %rotection of services based on, or consistin& of,

conditional access (Conditional Access Directive, CAD 16 , which has the &eneral %ur%ose to

%rotect the access to and the remuneration of on line services (amon& which are co%yri&ht

%rotected wor)s " $he CAD has further served as a model for the 4uro%ean Convention on the

Le&al .rotection of Services based on, or consistin& of, Conditional Access, drafted under the

162 Directive 01


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initiative of the Council of 4uro%e, which is o%en for si&nature by national States since anuary

6#, 6221 16*"

/ne ma or difference between the DMCA (and other national le&islations and the 4uro%ean

Directives is that the Directives are directed to the Member States, and have to be later

im%lemented in national le&islations (in a s%ecified deadline " $he Directives have the &eneral

function to harmoni8e the national le&islations by settin& the aims without im%osin& the means"

$his could be a reason why the re&ulation of the DMCA on technolo&ical measures is much more

detailed than the one %rovided for in the C!SD"

A* Copyright in the Information Society Directi"e

$he historical develo%ment of the C!SD is rather com%le'" !t will not be analy8ed in detail in this

%a%er, which will focus on the final version of the %rovision on technolo&ical measures contained

in the C!SD (art" * 16@"

Art" * C!SD sets forth the re&ulation of technolo&ical %rotection measures" $his %rovision

%rohibits both the act of circumvention (art" * al" 1 as well as the traffic in circumventin&

technolo&ies (art" * al" 6 "

1* Definition of technological protection measures

Art" * al" 7 C!SD defines technolo&ical %rotection measures as 3any technolo&y, device or

com%onent that, in the normal course of its o%eration, is desi&ned to %revent or restrict acts, in

res%ect of wor)s or other sub ect:matter, which are not authori8ed by the ri&ht holder of any

co%yri&ht or any ri&ht related to co%yri&ht as %rovided for by law or the sui &eneris ri&ht %rovided

for in Cha%ter !!! of Directive 0*


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Hollowin& the technolo&y:neutral a%%roach ado%ted in the -C$ 16 , technolo&ical %rotection

measures are defined by their %ur%ose, which is to %revent acts that are not authori8ed by the

ri&ht holder of any co%yri&ht, or any ri&ht related to co%yri&ht"

/n the basis of this definition, the threshold issue is therefore to define whether or not the ri&ht

holder has authori8ed the acts for which technolo&ical %rotection measures have been

im%lemented" !f the ri&ht holder has not authori8ed an act, any technolo&ical %rotection measures

%rotectin& the unauthori8ed e'ercise of this act would be within the sco%e of a%%lication of this

%rovision, even if this act is not within the sco%e of %rotection of co%yri&ht law"

Hor e'am%le, if a co%yri&ht owner (for instance an on:line news com%any s%ecifically %rohibits

by contract (in a 3clic) on5 a&reement 160 the 9uotation for news re%ortin& of the access %rotected

content, a technolo&ical %rotection measure %rotectin& such content would be enforceable

(circumventin& it would be unlawful under art" * al" 7 C!SD, because the act at issue (i"e" thefurther 9uotation of the content has not been authori e! by the ri&ht holder, even thou&h the

9uotation for news re%ortin& of %rotected wor)s mi&ht not be %rohibited by co%yri&ht law 172" $his

e'am%le shows that this e'tensive definition of technolo&ical %rotection measures &oes beyond

the re9uirement of the -C$ in favor of the co%yri&ht owners 171"

By contrast, in an earlier version of the Directive, technolo&ical %rotection measures were defined

as any device, services, etc" 3desi&ned to %revent or inhibit the infrin&ement of any co%yri&ht or

any ri&hts related to co%yri&ht5 176" $his meant that the le&al %rotection was limited to

technolo&ical %rotection measures that %revented acts of infrin&ement of co%yri&ht 177"

/ne could have wished that the %resent %rovision had followed more closely the wordin& of art"

11 -C$, which %rotects technolo&ical %rotection measures only to the e'tent that they restrict

acts that are not authori8ed by the authors or permitte! by law 17#"

16 See above !!!"160 Assumin& that this contract is enforceable"172

$he Berne Convention %rovides e'ce%tions both for 9uotation and news re%ortin& (art" 12 al" 1 and art" 12bis al"1 "171 $here is no more conver&ence between the sco%e of co%yri&ht %rotection and the sco%e of the anti:circumvention

%rovision, see above !!!"A"7"176 Art" * al" 7 of the Amended .ro%osal for a 4uro%ean .arliament and Council Directive on the harmoni8ation ofcertain as%ects of co%yri&ht and related ri&hts in the !nformation Society of May 61, 1000 (C/M (1000 6 2 final,/ C 1 2 of une 6 , 1000, %" * "177 oelman< elber&er, at 12"17# oelman, at 6@7 3in the wordin& of the $reaty, the limitations of co%yri&ht do affect the e'tent to whichtechnolo&ical %rotection schemes have to be %rotected5F see above !!!"A"7"

6


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Art" * al" 7 C!SD %rovides that 3technolo&ical measures shall be deemed TeffectiveJ where the use

of a %rotected wor) or other sub ect:matter is controlled by the ri&ht holders throu&h a%%lication

of an access control or %rotection %rocess, such as encry%tion, scramblin& or other transformation

of the wor) or other sub ect:matter or a co%y control mechanism, which achieves the %rotection

ob ective"5

Art" * al" 7 C!SD %rovides a test of 3effectiveness5 for technolo&ical %rotection measures" $he

rationale for this test of effectiveness is that ri&ht holders must first %rove that the technolo&ical

%rotection measures they have chosen reach a certain level of effectiveness in order to obtain

le&al %rotection a&ainst their circumvention 17 " As a conse9uence, deficient technolo&ical

%rotection measures, that is technolo&ical %rotection measures that can be circumvented too

easily : or even by accident : cannot be %rotected a&ainst circumvention" Art" * al" 7 C!SD &ives a

broad definition of 3effective5 technolo&ical %rotection measures which cover both access andco%y controls, without ma)in& any distinction between these ty%es of technolo&ical %rotections

measures 17*" owever, by referrin& e'clusively to a 3co%y control mechanism5, this %rovision

could be inter%reted as e'cludin& any le&al %rotection a&ainst circumvention of technolo&ical

%rotection measures that would %rotect e'clusive ri&hts of the co%yri&ht owners other than the

re%roduction ri&ht17@"

3* Act of circum"ention

$he %ur%ose of %rior versions of the C!SD was to outlaw only the business of traffic)in& incircumventin& technolo&y, and to leave the act of circumvention itself out of the sco%e of the

Directive" $his a%%roach has chan&ed in the meantime" !n its final version, the Directive

e'%ressly %rohibits the act of circumvention itself"

Article * al" 1 C!SD %rovides that 3=M>ember States shall %rovide ade9uate le&al %rotection

a&ainst the circumvention of any effective technolo&ical measures, which the %erson concerned

carries out in the )nowled&e, or with reasonable &rounds to )now, that he or she is %ursuin& that

ob ective"5

$he %articularity of this definition is that it contains an element of intention" $he reason for this

element is to ma)e sure that 3innocent5 acts of circumvention, that is acts, which are

17 Dussolier, at 602"17* $his a%%roach is different, as seen above !!!"A", from the one chosen in the DMCA"17@ $his im%lies that technolo&ical %rotection measures %rotectin& a&ainst streamin& mi&ht %otentially not fall withinthe sco%e of %rotection of the C!SDF on the 9uestion of streamin&, see above !!"B"

60


30/41

accom%lished by a %erson, without )nowled&e or without reasonable &rounds to )now, that she is

%ursuin& the ob ective of circumventin&, do not tri&&er any le&al sanctions under the C!SD" $his

element would ma)e a difference for the innocent user of a circumventin& dee% lin), as discussed

above in connection with the DMCA 17 " !n that case, the innocent circumventer would not be

liable under art" * al" 1 C!SD"

4* .usiness of traffic-ing in circum"enting technology

Art" * al 6 C!SD %rovides a %rotection addressin& the business of traffic)in& in circumventin&

technolo&y which is 9uite similar to the DMCA" Art" * al" 6 C!SD %rovides that 3=M>ember

States shall %rovide ade9uate le&al %rotection a&ainst the manufacture, im%ort, distribution, sale,

rental, advertisement for sale or rental, or %ossession for commercial %ur%oses of devices,

%roducts or com%onents or the %rovision of services which

(a are %romoted, advertised or mar)eted for the %ur%ose of circumvention of, or

(b have only a limited commercially si&nificant %ur%ose or use other than to circumvent, or

(c are %rimarily desi&ned, %roduced, ada%ted or %erformed for the %ur%ose of enablin& or

facilitatin& the circumvention of, any effective technolo&ical measures"5

As mentioned in connection with the similar %rovision contained in the DMCA 170, this %rovision

mi&ht %rovo)e difficulties of inter%retation because of the %otentially ambi&uous terms 3limited

commercially si&nificant %ur%ose or use other than to circumvent5 and 3%rimary desi&ned = >

for the %ur%ose of enablin& = > circumvention5"

will (have, at least, a reason to )now he is tam%erin& with a %rotective measureanyway, and therefore a )nowled&e test would be redundant"5170 See above !?"B"7"

72


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to ta)e 3voluntary measures5 in order to ma)e sure that users can benefit from the e'ce%tions to

co%yri&ht law &ranted under the national le&islations" $his %rovision thus dele&ates the tas) of

definin& the sco%e of co%yri&ht (and of the e'ce%tions to co%yri&ht to %rivate entities" $his is a

&ood solution as lon& as the bar&ainin& %ower of the %arties is similar" !f not 1#2, the co%yri&ht

balance mi&ht be affected"

By default (if no a&reement is reached between the interested %arties , Member States are

re9uested to ta)e 3a%%ro%riate measures5 to ensure that ri&ht holders 3ma)e available to the

beneficiary of an e'ce%tion or limitation %rovided for in national law the means of benefitin&

from that e'ce%tion or limitation, to the e'tent necessary to benefit from that e'ce%tion or

limitation and where that beneficiary has le&al access to the %rotected wor) or sub ect:matter

concerned"5 (art" * al" # %ar" 1 C!SD

owever, in s%ite of its a%%arently well:balanced a%%roach, the whole system is eo%ardi8ed byart" * al" # %ar" # which %rovides that the voluntary a&reements definin& the sco%e of the

e'ce%tions to co%yri&ht %rotection or, by default, the measures ta)en by Member states definin&

these e'ce%tions 3shall not a%%ly to wor)s or other sub ect:matter made available to the %ublic on

a&reed contractual terms in such a way that members of the %ublic may access them from a %lace

and at a time individually chosen by them"5 As a result, &iven that this ty%e of use is %resently the

most im%ortant (if not the only use of co%yri&hted wor)s in the on:line environment, the

effective a%%lication of the e'ce%tions to co%yri&ht law is eo%ardi8ed in the C!SD"

=* Monitoring of the application of the CISD and amendments procedure

!n addition to the 3%rivate rulema)in& %rocedure5 set forth by art" * al" #, art" 16 C!SD %rovides

that, every three years, the Commission shall submit to the 4uro%ean .arliament, the Council and

the 4conomic and Social Committee a re%ort on the a%%lication of this Directive" $his re%ort

shall e'amine in %articular whether art" * 3confers a sufficient level of %rotection and whether

acts which are %ermitted by law are bein& adversely affected by the use of effective technolo&ical

measures"5

Art" 16 al" 1 C!SD also %rovides that the Commission, when necessary to accom%lish the internal

mar)et, shall submit %ro%osals for amendments to the C!SD"

1#2 $his would be the case if the co%yri&ht owners can contractually im%ose conditions, which do no res%ect the sco%eof the e'em%tions &ranted to the users by national co%yri&ht laws" $o avoid such a result, the terms of the a&reements(3voluntary measures5 could be controlled by an official body (at 4U or national level before becomin& effective,for instance the 3contact committee5 to be created under art"16 C!SD"

71


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Art" 16 al" 7 C!SD further %rovides for the establishment of a 3contact committee5 which will in

%articular have the tas) to 3act as a forum for the assessment of the di&ital mar)et in wor)s and

other items, includin& %rivate co%yin& and the use of technolo&ical measures"5

$his system of %ermanent monitorin& of the im%act of the C!SD can be com%ared to the

rulema)in& %rocedure conducted under the DMCA, which has a similar function to maintain the

balance between the interests of co%yri&ht owners and of users 1#1" As for the DMCA, it remains

to be seen whether this %rocedure will %rove efficient to deal with the com%le' issues at sta)e"

.* Directi"e on Conditional Access

$echnolo&ical %rotection measures %rotectin& the access to a co%yri&ht %rotected wor) are also

%rotected by the Directive on the le&al %rotection of services based on, or consistin& of,

conditional access (Conditional Access Directive, CAD 1#6"

$he ob ective of the CAD is 3to a%%ro'imate %rovisions in the Member States concernin&

measures a&ainst illicit devices which &ive unauthori8ed access to %rotected services"5 (Art" 1

CAD " $he interest %rotected by the CAD is the remuneration of the service %rovider, and not the

content of the service in itself"

$he sco%e of a%%lication of the CAD is very broad 1#7" $he CAD %rotects all )inds of on line

conditional access services (on line bro)era&e, ban)in&, healthcare, travel a&ency, distance

learnin&, etc" , and not only intellectual %ro%erty %roducts (%ay:$?F video:on:demandF electronic

%ublishin& 1##"

1* Protection of conditional access to a ser"ice

As defined by art" 6 (b CAD, 3conditional access shall mean any technical measure and


33/41

u%on %rior individual authorisation5" Art" 6 (b CAD does not only refer to encry%tion, but also

encom%asses scramblin& and other techni9ues (electronic loc)s, %asswords 1# "

Art" 6 (c CAD further defines 3conditional access device5 as 3any e9ui%ment or software

desi&ned or ada%ted to &ive access to a %rotected service in an intelli&ible form"5

3* Illicit de"ice gi"ing unauthori5ed access

Art" 6 (e CAD defines the circumventin& technolo&y as an 3illicit device5 meanin& 3any

e9ui%ment or software desi&ned or ada%ted to &ive access to a %rotected service in an intelli&ible

form without the authorisation of the service %rovider5"


/nly the business of traffic)in& in illicit devices, and not the act of circumvention itself, is

%rohibited by the CAD" Art" # CAD defines the infrin&in& activities as

3(a the manufacture, im%ort, distribution, sale, rental or %ossession for commercial %ur%oses of

illicit devicesF

(b the installation, maintenance or re%lacement for commercial %ur%oses of an illicit deviceF

(c the use of commercial communications to %romote illicit devices"5

$he CAD does not %rohibit any activity with an illicit device that is not underta)en for

commercial %ur%oses" As a conse9uence, the %ossession or manufacture of an illicit device for a

%ersonal use is not %rohibited"


34/41

A circumventin& activity mi&ht indeed be considered licit under the C!SD (on the basis of a

3voluntary a&reement5 %rovided for by art" * al" # C!SD , but the same activity could however

still %otentially be held unlawful under the CAD 1# " Considered more &enerally from the %oint of

view of users of co%yri&hted wor)s, it would not ma)e sense to stru&&le for and obtain an

e'ce%tion to co%yri&ht %rotection (for e'am%le, in order to access content for fair use %ur%oses

only within the co%yri&ht s%ecific re&ulation 1#0 , if these acts, which would then be lawful under

co%yri&ht law, are still unlawful under some other a%%licable le&islations" $his %otential overla%

of le&islations therefore illustrates how difficult a re&ulation of this issue can be if no attention is

%aid to the surroundin& le&al environment"

;I* &apan

$he system of %rotection a&ainst circumvention of technolo&ical %rotection measures in a%an is

twofold" !t has been im%lemented by amendments made in %art in the a%anese Co%yri&ht Law

(CL 1 2 , and in %art in the a%anese Anti:Unfair Com%etition Law (AUCL 1 1 " $he amendments

made to the CL and to the AUCL both came into force on /ctober 1, 1000" $he dual %rotection

chosen by a%an can be e'%lained as follows the amendment made in the CL focuses on the

circumvention of technolo&ies %rotectin& a&ainst co%yri&ht infrin&ement (it relates to

technolo&ical %rotection measures desi&ned to 3%revent or deter5 a&ainst infrin&ements of

co%yri&ht " By contrast, the amendment to the AUCL focuses %rimarily on the circumvention of

access control technolo&ies 1 6 " As access control is not %rotected under co%yri&ht law, its

%rotection could not be im%lemented in the CL, and was therefore introduced in the AUCL"

A* Copyright la$

Article 6 ('' CL defines 3technolo&ical %rotection measures\ as 3measures to %revent or deter

such acts as constitute infrin&ements on moral ri&hts or co%yri&ht mentioned in Article 1@,

%ara&ra%h (1 or nei&hborin& ri&hts"5

1# See Dussolier, at 60#"1#0 !n the 4uro%ean Union, by a%%lication of the %rocedure of art" * al" # C!SD, and in the U"S", in the course of therulema)in& %rocedure of the DMCA"1 2 See the a%anese Co%yri&ht Law o" # , %romul&ated on May *, 10@2 as amended by Law o" @@, of une 1 ,1000, available at www"cric"or" %


35/41

$echnolo&ical %rotection measures are, once a&ain, defined by their %ur%ose, which is to prevent

or !eter any infrin&ement of co%yri&ht 1 7 "

$he term 3to %revent5 is not defined in the CL, whereas 3to deter5 is defined 1 # " $he CL does not

outlaw the act of circumvention itself 1 , but %rohibits the business of traffic)in& in circumventin&

technolo&y 1 * " As in the DMCA and in the C!SD, there is a test relatin& to the function of the

device used for circumvention (here, the 3%rinci%al function for the circumvention of

technolo&ical %rotection3 1 @ that mi&ht be difficult to a%%ly"

.* Anti6!nfair Competition La$

1* Definition of technical restriction means

$echnolo&ical %rotection measures are referred to in the AUCL as 3technical restriction means5"

Art" 6 ( %rovides a definition of Ttechnical restriction meansJ a 3means that uses an

electroma&netic method (an electronic method, ma&netic method or other method that cannot be

confirmed by human %erce%tion to restrict the viewin& and listenin& of ima&es and sounds, the

e'ecution of %ro&rams or the recor!ing of images, soun!s or programs F = >5 (em%hasis added "

$hese means a%%ear %rimarily desi&ned to %rotect the access to the wor)s (3to restrict the viewin&

and listenin& of ima&es and sounds5 " owever, this %rovision also includes means that restrict

the 3recordin& of ima&es, sounds or %ro&rams5, which is ty%ically a co%y control (use control

function"


$he AUCL %rohibits only %re%aratory activities, and not the act of circumvention itself"

$wo %re%aratory activities are %rohibited by art" 6 AUCL"

Article 6(1 (12 (' first %rovides that it is an act of unfair com%etition 3to convey, deliver,

e'hibit for the %ur%ose of conveyin&, deliverin&, e'%ortin& or im%ortin& e9ui%ment (includin&1 7 As well as moral ri&htsF for the sa)e of sim%licity, moral ri&hts will be im%licitly included in the term 3co%yri&ht5when referrin& to the a%anese le&islation"1 # Art" 6 ('' CL defines 3to deter5 as meanin& 3to deter such acts as constitute infrin&ements on co%yri&ht, etc" by

causin& considerable obstruction to the results of such acts"51 Art" 72 (1 (i CL however %rovides that a %erson who is re%roducin& a wor) for %rivate %ur%oses bycircumventin& a technolo&ical %rotection measure and who )nows that this re%roduction is made %ossible by thiscircumvention cannot benefit from the statutory e'ce%tion of co%yri&ht for %rivate use" $his %rovision does howevernot &enerally outlaw the act of circumvention in itself"1 * /nly criminal remedies are available under art" 162bis CL"1 @ Article 162bis:= > 3(i any %erson who transfers to the %ublic the ownershi% of, or = > a device having a principal function for thecircumvention of technolo&ical %rotection measures = > or co%ies of a %ro&ram having a principal function for thecircumvention of technolo&ical %rotection measures = >5 (em%hasis added "

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devices that assemble such e9ui%ment that only have the function of %reventin& the effect of a

technical restriction means and ma)in& it %ossible to view and listen to ima&es and sounds,

e'ecute %ro&rams, or record ima&es, sounds or %ro&rams that are restricted by the technical

restriction means that are used in business = >5"

As e'%lained in a commentary to the AUCL 1 , this subsection covers for instance 3the act of

sellin& a Macrovision canceller which removes the co%y&uard (Macrovision method that is %ut

on a movie (etc" ima&e, as well as in the case of CSS (Content Scramblin& System which is

attached to a D?D in the %rocess of manufacture, the act of sellin& a machine (other than a

dis%lay machine

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