How to Regulate TPM/DRMs?
The Information and Communications
Regime
April 7-8, 2006
The International Intellectual Property
Regime complex
Michigan State University College of
Law
Manon Ress, CPTech
OUTLINE
Background
 What is protected legally?
 Hacking, contracts and expectations
 Some implementations
 Rethinking the legal regime for TPM/DRM
 Proposal

Background

digital information technologies has created
uncertainly re access to knowledge goods


it is now inexpensive (free?) to copy distribute works
to millions of persons
there's a large degree of insecurity among publishers
or producers
 rise of new efforts to control or limit the
copying, or uses, of creative works and data.
TPM/DRM characteristics

operate with or without standardization
depending upon the nature of the publishing



standardized for recorded performances of music or
motion pictures but not for all uses
if effective, provide possibility of managing
works in ways not possible in print or analogue
(eliminate all unauthorized copying or uses of
works)
system of private rules for the use of
information designed by and for publishers to
control
Description


strategy for controlling the uses of the works is
both technological and legal.
It involves effort to promote both public and
private standards

combination of (1) effective technological locks on
uses of information, (2) a system of tracking and
controlling uses, and (3) legal prohibitions against
anti-circumvention of (1) and (2).
What is protected legally?

1996 WIPO Copyright Treaty (WCT) & WIPO
Performances and Phonogram Treaty (WPPT)
NOTE: These treaties are unusual: that they did not seek to harmonize
global laws on copyright, but rather created new and untested standards to
be implemented by national governments
These treaties require that member states:
 “provide adequate legal protection and effective legal
remedies" against the circumvention of effective
technological measures and against any person
knowingly removing, altering, distributing…

these obligations require a legal environment to
protect the TPM/DRM regime
Issues




Hacking is possible so success in limiting access
depends upon actions of governments to prohibit anticircumvention
Contracts that should be enforced by governments?
Expectations are changing but there is Public Interest in
Unauthorized Uses of Works
Knowledge goods are “non-rival in consumption” and
can become (as defined by economists) public goods
(to everyone at no cost)
More Issues for Knowledge Goods
K.G. (2)

But unlike pure public goods (national defense), it is
both possible and common to limit access. Scarcity of
k.g. is a function of private and government efforts to
protect barriers to access.

Justifications: k. g. will not be created without barriers to
access, or a moral or ethical obligation to give
creators/publishers control over the use of their works
More Issues for Knowledge Goods
K.G. (3)

types of k. g. highly heterogeneous in character
& costs
syllabus, publishing of laws and regulations, reports
of the activities of government agencies etc.
 feature films, design of computer semi conductor
chips, the creation and maintenance of certain
databases etc.
These are less likely to be undertaken without an
expectation of revenue from the sale of the work

Implementations in high-income
countries

US: the Digital Millennium Copyright Act, known as
the DMCA (1998). As the first model, it is influential.
• basic approach was to provide for the automatic protection
of all TPM/DRM regimes, but to provide for limited areas
where there exceptions to the anti-circumvention rules.


EU’s system includes an "Internet Copyright
Directive," or Directive 2001/29/EC , as well as other
directives that set out the regulatory framework for
TPM/DRM regimes. Implementation is not
harmonized.
Japan, Australia  …and Canada soon
Implementations in Developing
countries

58 contracting parties to the WCT and 57 to the WPPT




largest numbers of countries that have signed the treaties are
from the developing world, including many countries with very
limited use of the Internet or computer
Five are defined by the UN as Least Developed Countries
(LDCs), including Burkina Faso, Guinea, Mali, Senegal and
Togo
In 2004, nine of the WCT members had a per capita gross
national income (GNI) of less than $1,000, and more than half
(31) had per capita incomes of less than $3,000 per year.
response to trade pressures from the United States or
other high-income countries & mimic the legal
approaches now used in high-income countries
Rethinking the legal regime for
TPM/DRM



Many concerns but at the core: predictable & harmful
impact of having private parties -- publishers -determine the default rules for access to k.g.
The starting point is that the TPM/DRM itself must be
protected from circumvention, independent of the work
that is protected, and without regard to the likely impact
on the uses of the works.
Let's explore alternative ways of regulating the
TPM/DRM regimes more consistent with protecting
access to knowledge goods
Proposal



No automatic legal protections to TPM/DRMs but
system requiring vendors and users to register to apply
for protection against circumvention
Need to explain how the regime will respond to
legitimate uses of the works under public (rather than
private) standards for access
Legal protection would not be forthcoming, until the
regulator was satisfied that regime does not
inappropriately restrict access to the work
Registration
Instead of providing automatic protection,
a system requiring vendors or publishers
to register
 It could involve a fee
 It could involved negotiations to protect
user rights
 It could be for specific uses

Conditions

Obligations for protection of copyrighted
works are different from obligations
regarding TPM/DRM
The “lock” does not need broader rights
 Not every use of copyrighted goods
 Not use that are against public policy

Conditions (2)
Protection should not be extended to
DRM on works not protected by copyright
 Protection only for interest of the CR
owner
 Term can be shorter
 Lock only when needed to protect
legitimate interests of CR owner

Conditions (3)
DRM is a contract and should be subject
to public policy before being enforceable
 Review of DRM can be different from one
for TPM

For ex. DRM that prohibit private copy, time
shift
 Major concerns for non-negotiated contracts

Fora

New systems could be proposed and
implemented in countries willing to
experiment and promote policies of
protecting access to knowledge
Specific area
Entire copyright field?
 Special area

Public science where norms re access are
esp. important
 Publicly funded science based upon a
different economic model
 Examples in copyleft type rules see HapMap
licenses

EXCERPTS FROM THE ORIGINAL HAPMAP TERMS AND
CONDITIONS FOR ACCESS TO AND USE OF THE GENOTYPE
DATABASE
2. You may access and conduct queries of the Genotype Database and copy, extract, distribute or
otherwise use copies of the whole or any part of the Genotype Database's data as you receive it,
in any medium and for all (including for commercial) purposes, provided always that:

a. by your actions (whether now or in the future), you shall not restrict the access to, or the use
which may be made by others of, the Genotype Database or the data that it contains;

b. in particular, but without limitation,

i. you shall not file any patent applications that contain claims to any composition of matter of
any single nucleotide polymorphism ("SNP"), genotype or haplotype data obtained from the
Genotype Database or any SNP, haplotype or haplotype block based on data obtained from the
Genotype Database; and

ii. you shall not file any patent applications that contain claims to particular uses of any SNP,
genotype or haplotype data obtained from the Genotype Database or any SNP, haplotype or
haplotype block based on data obtained from, the Genotype Database, unless such claims do
not restrict, or are licensed on such terms that that they do not restrict, the ability of others to use
at no cost the Genotype Database or the data that it contains for other purposes; and . . .
See http://www.hapmap.org/cgi-perl/registration
Conclusion
A new “default setting” is needed
 Nothing is protected unless registration is
approved by public authorities
 TPM/DRM as exceptions for which
enforcement depends on uses and effects

For more information
Consumer Project on Technology
 www.cptech.org
 Tel.: 1 202 332 2670
 Manon.ress@cptech.org
