WIPO
Informative Session on Limitations and
Exceptions
Geneva November 3rd 2008
Automated Rights Management
&
Copyright Limitations and
Exceptions
by
Nic Garnett
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Disclaimer
All the ideas and opinions expressed in
the Study are those of the writer or of
the persons identified in the Study. They
do not nor are they intended to
represent the views of WIPO. Likewise,
any errors, omissions or other
shortcomings in the Study are those
exclusively of the writer.
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The General Objective
 Attempts to provide a neutral and balanced
introduction to a controversial area of inquiry;
 Seeks to contribute to a better understanding
of the relationship between traditional
methods of rights management and
technology based systems;
 Aims to enhance knowledge of the digital
environment as it impacts the development of
copyright law.
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Automated Rights Management
Technical Protection
Measures:
 Copy Protection
 Access Control
 Digital Rights
Management
Rights Management
Information Systems:
 Identifiers (e.g. DOI)
 Tags
 Watermarks
Encryption
Fingerprinting
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Central Issues
 ARM: essential for protection
 Copyright: limits to protection
 Certain ARM protect beyond limits
 ARM Technologies v. Exceptions
 Protected and Unprotected content
channels are incompatible
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The Logic of the Study
 For DRM technology, an exception is a
rule;
 2 options for implementation:
• Turn off DRM
• Implement with DRM
 Turning off the DRM may create
unacceptable risk to rights holders
 Use DRM to implement the exception
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Other Issues
 Complexity of the digital
environment
 Changing nature of activities
 Matrix of exceptions
 Proprietary ARM technologies
 Impact of the “Three Step Test”
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Focus of Study
 Digital Rights Management technology
 Fields of Application ~ Exceptions relating to:
• Access by Visually Impaired People
• Distance Learning
 Five Territories, Five Copyright Laws
•
•
•
•
•
Australia
South Korea
Spain
United Kingdom
United Sates of America
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Technology Solutions
Technology
Solutions
TPM
Copy
Protection
(SCMS; CSS
etc.)
RMI
Restricted access &
usage
Access Control
(STB, Password
Protected Website)
Digital Rights
Management
(Windows Rights
Management,
FairPlay etc.)
Content Blocking
& Filtering
(Watermarking,
fingerprinting)
Aggregated
Licensing
Discreet
Licensing
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Content Usage Metering
(Watermarking,
fingerprinting, embedded
codes)
Field I: Accessibility
 Technology provides many accessibility
tools: screen readers, etc.
 Certain kinds of ARM technologies
applied in certain ways obstruct access
 Some copyright laws contemplate the
removal of obstructions but the method
of implementation is unclear
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Field II: Distance Learning
 Education, including distance learning,
has its own vast ecosystem
 Technology facilitates the creation of
virtual classrooms
 Models are emerging in which ARM
technologies are important enabler
 Emerging legislation: US TEACH Act
2002
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Interface of Law & Technology: I
The legal definition of fair use is, by computer scientists’
standards, maddeningly vague. No enumeration of
fair uses is provided. There is not even a precise
algorithm for deciding whether a particular use is fair.
Instead, the law says that judges should make caseby-case decisions based on four factors: the nature
of the use; the nature of the original work; the portion
of the original work used; and the effect of the use on
the market. The law does not say exactly how these
factors should be evaluated or even how the factors
should be weighted against one another.
To a computer scientist, such imprecision is a bug.
Professor Ed Felton
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Interface of Law & Technology: II
If DRM systems can’t make the right judgment in every case, perhaps they
can get some special cases right. Perhaps they can allow backup
copies or personal use within the home. Perhaps these special cases
are simple enough that they can be reasonably approximated.
But even these seemingly simple cases are more difficult than they might
initially seem. A backup, for instance, is most useful if it can be
restored on a different machine (in case the original machine breaks).
But backup cannot simply provide a mechanism for moving a file from
one machine to another; such a general file transfer facility is a ready
loophole for infringers. The solution may involve centralized record
keeping, ensuring a backup is not restored too frequently or in too
many places, though such record keeping raises privacy issues.
The point is not that handling backup is impossible but that it is surprisingly
challenging. To date there has been no satisfactory solution to these
problems, though it may be because most of the development effort
has been (misdirected toward the effort to build all-encompassing DRM
systems. There may be hope, however, for a bottom-up approach that
tries to handle a few cases well.
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Interface of Law & Technology: III
ARM Technologies v. Exceptions
ARM Technologies are managed systems
Central authority +Trusted Intermediary
Existing institutions = Trusted
Intermediaries
Trusted Intermediaries manage secure
networks
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Working Examples
 Accessibility
• Bookshare
• Braillenet
• RNIB
 Education
• TEACH Act
• Credu
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Update
 An end to DRM?
 The growing importance of other ARM
technologies
 Generalization of DRM
 Increasing interoperability
 Growing sophistication of DRM
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Conclusions
 ARM Technologies, including DRM, will become
increasingly prevalent
 ARM Technologies can provide the key to the fair
implementation of exceptions, particularly where the
exceptions relate to the needs and functions of
particular communities or institutions
 Work on keeping copyright law responsive to
technological challenges should take account of the
capabilities of ARM Technologies
 Working deployments of ARM Technologies should
be studied with a view to developing best practice
statements and reference models for more
generalized use
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