Digital Copyright and
Management of Rights in the
Digital Environment
Giancarlo F. Frosio
The Internet, Digitization and the Digital Dilemma
“. . . information wants to be free, because it has become so
cheap to distribute, copy, and recombine - too cheap to
meter. It wants to be expensive because it can be
immeasurably valuable to the recipient. That tension will not
go away . . . .”
Stuart Brand (founder of Electronic Frontier Foundation), THE MEDIA LAB: INVENTING
FUTURE AT MIT 86 (Penguin Books 1986)
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THE
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The Internet, Digitization and the Digital Dilemma
“The digital dilemma”
NATIONAL RESEARCH BOARD, THE DIGITAL DILEMMA: INTELLECTUAL PROPERTY
INFORMATION AGE (National Academy Press, 2000)
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IN
THE
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The Internet, Digitization and the Digital Dilemma
The Digital
Threat
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The Digital
Opportunity
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The Internet, Digitization and the Digital Dilemma
“earlier generations of technology . . . have presented
challenges to existing copyright law, but none have posed
the same threat as the digital age . . . .”
John V. Pavlic, New Media Technology, 1996. John V. Pavlic is executive director of the
Columbia University Center for New Media.
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The Internet, Digitization and the Digital Dilemma
“notions of security and control that may have been
exercisable in the non-networked, analog world cannot be
effectively transferred to a realm where even a single digital
copy can propagate millions of perfect clones, world-wide,
almost instantaneously, and where control over the quantity
and destiny of the bits that comprise digital media will be
imperfect at best.”
Philip S. Corwin, legal counsel for Sharman Networks, owner of KaZaa peer-to-peer
software, in a letter to Senator Joseph R. Biden, Jr., February 26, 2002
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The Internet, Digitization and the Digital Dilemma
“I believe we are moving into a new kind of cultural if not
economic reality. We are moving away from a world
organized around centralized control, strict intellectual
property rights and hierarchies of credentialed experts, to a
radically different order. The new order is predicated upon
open access, decentralized participation, and cheap and
easy sharing.”
David Bollier, The Commons as New Sector of Value Creation: It’s Time to Recognize
and Protect the Distinctive Wealth Generated by Online Commons, Remarks at the
Economies of the Commons: Strategies for Sustainable Access and Creative Reuse of
Images and Sounds Online Conference (Amsterdam, April 12, 2008)
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Copying in the Digital Enviroment
“[I]n the digital world copying is such an essential action, so bound
up with the way computers work, that control of copying provides,
in the view of some, unexpectedly broad powers, considerably
beyond those intended by the copyright law.”
NATIONAL RESEARCH BOARD, THE DIGITAL DILEMMA: INTELLECTUAL PROPERTY
INFORMATION AGE 140 (National Academy Press, 2000)
IN
THE
“For while it may be obvious that in the world before the Internet,
copies were the obvious trigger for copyright law, upon reflection, it
should be obvious that in the world with the Internet, copies should
not be the trigger for copyright law. More precisely, they should not
always be the trigger for copyright law.”
LAWRENCE LESSIG, FREE CULTURE 140 (2004)
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Adapting the Law to Digitization
 Reproduction
 Agreed statement concerning Article 1 (4), WCT: “The reproduction
right, as set out in Article 9 of the Berne Convention, and the exceptions
permitted thereunder, fully apply in the digital environment, in particular
to use of the works in digital form. Storage of a protected work in digital
form in an electronic medium constitutes a reproduction within the
meaning of Article 9 of the Berne Convention.”
 Including temporary (or permanent) reproduction
 By any means and in any form
 Communication to the public
 by wire or wireless means,
 including the making available to the public of their works
 in such a way that members of the public may access them from a
place and at a time individually chosen by them
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Adapting the Law to Digitization
 Distribution
 authors retain the right to control and license their works, when those
works are re-compiled or re-distributed electronically in the digital
environment
 The New York Times, Co. v. Tasini , 533 U.S. 483 (2001) (Freelance writers)
 National Geographic v. Greenberg, 122 S. Ct. 347 (2001) (Freelance
photographers)
 Exhaustion
 Agreed statement concerning Article 6 (2), WCT: “Nothing in this Treaty shall
affect the freedom of Contracting Parties to determine the conditions, if any,
under which the exhaustion of the right in paragraph (1) applies after the first
sale or other transfer of ownership of the original or a copy of the work with the
authorization of the author.”
 Agreed statement concerning Articles 6 and 7, WCT: “As used in these Articles,
the expressions “copies” and “original and copies,” being subject to the right of
distribution and the right of rental under the said Articles, refer exclusively to
fixed copies that can be put into circulation as tangible objects.”
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Exceptions, Temporary Copies
 Exemption of copies from copyright infringement under
certain conditions; act of reproduction must be:
 temporary and transient or incidental
 integral and essential part of a technological process
 sole purpose is to enable:
 lawful use of a work or other subject matter or a transmission, in a network
between 3rd parties by an intermediary
 no independent economic significance
 Webcasting is excluded
 also known as "streaming", is the process of digitally transmitting musical
recordings, and radio and television broadcasts over the Internet. The process is
designed not to create permanent copies on end-listeners' computer hard drives.
 MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511
(9th Cir. 1993)
 17 U.S.C. § 117 amended to overrule this holding
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Digital Right Managment (DRMs)
“The answer to the machine is in the machine”
Clark Charles, The Answer to the Machine is in the Machine, in THE FUTURE OF
THE COPYRIGHT IN A DIGITAL ENVIRONMENT 139-146 (P. Bernt Hugenhotltz
ed., Kluwer Law International 1996)
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Digital Rights Management (DRM) and Technological
Protection Measures (TPMs)
 Digital Right Management (DRMs)
 any of several technologies used to enforce pre-defined
limitations on the use and transfer of copyrighted digital
content.
 viewing,
 copying,
 printing,
 altering and
 everything else that can be done with digital content.
 Technological Protection Measures (TPMs)
 Use
 Access
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Anti-Circumvention Provisions
 WIPO Treaties 1996
 Art. 11 WCT & 18 WPPT
 Digital Millenium Copyright Act 1998
 Title I, DMCA
§ 1201-1205 Copyright Act
 Directive 01/29/EC (Information Society Directive)
 Art. 6 and 7
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WIPO Copyright Treaty 1996
Contracting Parties shall provide adequate legal protection and
effective legal remedies against the circumvention of effective
technological measures that are used by authors in connection
with the exercise of their rights under this Treaty or the Berne
Convention and that restrict acts, in respect of their works,
which are not authorized by the authors concerned or
permitted by law.
(Obligations Concerning Technological Measures, Art. 11 WCT)
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WIPO Copyright Treaty 1996
(1) Contracting Parties shall provide adequate and effective legal remedies against
any person knowingly performing any of the following acts knowing, or with respect
to civil remedies having reasonable grounds to know, that it will induce, enable,
facilitate or conceal an infringement of any right covered by this Treaty or the Berne
Convention:
(i) to remove or alter any electronic rights management information without
authority;
(ii) to distribute, import for distribution, broadcast or communicate to the
public, without authority, works or copies of works knowing that electronic rights
management information has been removed or altered without authority.
(2) As used in this Article, “rights management information” means information which
identifies the work, the author of the work, the owner of any right in the work, or
information about the terms and conditions of use of the work, and any numbers or
codes that represent such information, when any of these items of information is
attached to a copy of a work or appears in connection with the communication of a
work to the public.
(Obligations Concerning Right Management Information, Art. 12 WCT)
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WIPO Performance and Phonograms Treaty 1996
Contracting Parties shall provide adequate legal protection and
effective legal remedies against the circumvention of effective
technological measures that are used by performers or
producers of phonograms in connection with the exercise of
their rights under this Treaty and that restrict acts, in respect of
their performances or phonograms, which are not authorized by
the performers or the producers of phonograms concerned or
permitted by law.
(Obligations Concerning Technological Measures, Art. 18 WPPT)
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Digital Millenium Copyright Act
(a)(1) No person shall circumvent a technological
measure that effectively controls access to a work
protected under this title.
(§ 1201 (a) (1) (A))
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Digital Millenium Copyright Act
(a)(2) No person shall manufacture, import, offer to the public,
provide, or otherwise traffic in any technology, product, service,
device, component, or part thereof, that
(A) is primarily designed or produced for the purpose of
circumventing a technological measure that effectively controls
access to a work protected under this title;
(B) has only limited commercially significant purpose or use
other than to circumvent a technological measure that effectively
controls access to a work protected under this title; or
(C) is marketed by that person or another acting in concert with
that person with that person’s knowledge for use in
circumventing a technological measure that effectively controls
access to a work protected under this title.
(§ 1201 (a) (2) (A) (B) (C))
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Digital Millenium Copyright Act
(a)(3) As used in this subsection
(A) to “circumvent a technological measure” means to
descramble a scrambled work, to decrypt an encrypted work, or
otherwise to avoid, bypass, remove, deactivate, or impair a
technological measure, without the authority of the copyright
owner; and
(B) a technological measure “effectively controls access to a
work” if the measure, in the ordinary course of its operation,
requires the application of information, or a process or a
treatment, with the authority of the copyright owner, to gain
access to the work.
(§ 1201 (a) (3) (A) (B))
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Digital Millenium Copyright Act
(b)(1) No person shall manufacture, import, offer to the public, provide, or
otherwise traffic in any technology, product, service, device, component, or
part thereof, that
(A) is primarily designed or produced for the purpose of circumventing
protection afforded by a technological measure that effectively protects
a right of a copyright owner under this title in a work or a portion
thereof;
(B) has only limited commercially significant purpose or use other than to
circumvent protection afforded by a technological measure that
effectively protects a right of a copyright owner under this title in a
work or a portion thereof; or
(C) is marketed by that person or another acting in concert with that
person with that person’s knowledge for use in circumventing protection
afforded by a technological measure that effectively protects a right of
a copyright owner under this title in a work or a portion thereof.
(§ 1201 (b) (1) (A) (B) (C))
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Digital Millenium Copyright Act
(b)(2) As used in this subsection
(A) to “circumvent protection afforded by a technological
measure” means avoiding, bypassing, removing, deactivating, or
otherwise impairing a technological measure; and
(B) a technological measure “effectively protects a right of a
copyright owner under this title” if the measure, in the ordinary
course of its operation, prevents, restricts, or otherwise limits
the exercise of a right of a copyright owner under this title.
(§ 1201 (b) (2) (A) (B))
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DMCA, Copyright Management Information
(a) False Copyright Management Information.— No person shall knowingly and with
the intent to induce, enable, facilitate, or conceal infringement
(1) provide copyright management information that is false, or
(2) distribute or import for distribution copyright management information that is
false.
(b) Removal or Alteration of Copyright Management Information.— No person
shall, without the authority of the copyright owner or the law
(1) intentionally remove or alter any copyright management information,
(2) distribute or import for distribution copyright management information
knowing that the copyright management information has been removed or altered
without authority of the copyright owner or the law, or
(3) distribute, import for distribution, or publicly perform works, copies of works,
or phonorecords, knowing that copyright management information has been
removed or altered without authority of the copyright owner or the law,
knowing, or, with respect to civil remedies under section 1203, having reasonable
grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any
right under this title.
(§ 1201 (b) (2) (A) (B))
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DMCA, Exemptions
(1) Statatutory exemptions




Exemption for Nonprofit Libraries, Archives, and Educational Institutions
Law Enforcement, Intelligence, and Other Government Activities
Reverse Engineering
Encryption Research
(2) Administratively-created exemptions (last issued by the
Librarian of the Congress in July 2010)
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Information Society Directive (Dir. 01/29)
Obligation of appropriate protection against circumvention
of TPMs
(Art. 6, Par. 1)
Obligation of appropriate protection against acts preparing
the circumvention: manufacture, sale, etc.
(Art. 6, Par. 2)
Definition of TPMs and effective TPMs
(Art 6, Par. 3)
Mechanism to ensure the respect of copyright exceptions
(Art. 6, Par. 4)
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InfoSoc, Anti-circumvention of TPMs
(Art. 6, §1 & 2) Member States must provide
for the legal protection of TPMs:
 prevent the circumvention of effective TPMs which
the person concerned carries out knowingly or with
reasonable grounds to know that she/he is
circumventing the TPMs & activities primarily
designed or produced to circumvent TPMs (ACDs)
 prevents manufacture, sale, etc. of devices whose
main purpose is to circumvent TPMs
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InfoSoc, Effective TPMs
 “TPM means any technology, device or component that, in
the normal course of its operation, is designed to prevent or
restrict acts, in respect of works or other subject-matter,
which are not authorised by the right holder of any copyright
or any right related to copyright as provided for by law or the
sui generis right provided for in Chapter III of Directive
96/9/EC.”
 “Technological measures shall be deemed "effective" where
the use of a protected work or other subject-matter is
controlled by the right holders through application of an
access control or protection process, such as encryption,
scrambling or other transformation of the work or other
subject-matter or a copy control mechanism, which achieves
the protection objective.”
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InfoSoc, Manufacture of Circumvention Tools
 Article 6.2 requires Member States to provide legal
protection against the
"manufacture, import, distribution, sale, rental, advertisement
for sale for rental, or possession for commercial purposes of
devices, products or components of the provision of services"
for the purposes of circumventing technological
measures, including
 encryption,
 scrambling or
 other copy control mechanisms.
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InfoSoc, Right Management Information
 Art. 7.1: Legal protection against the removal or
alteration of any electronic RMI and the
diffusion of protected material from which the
RMI has been removed or altered by any person
doing so knowingly
 Art. 7.2: definition of RMI: any information
provided by right holders which identifies:
 the subject-matter protected
 the author or any other right holder
 information about the terms and conditions of use of
the protected subject-matter and
 any numbers or codes representing that information.
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Sanctions
 Member States must take effective, proportionate
and dissuasive sanctions and remedies to enforce
rights in the directive
 Member States must ensure that right holder has
right to bring action for damages or injunction (in
compliance with Artt. 44 & 45 TRIPs) and seize the
infringing goods, etc. (in compliance with Art. 46
TRIPS).
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Tensions between TPMs and Others Rights
Privileged
Uses
TPMs
Freedom of
Expression
Competition
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Tension between TPMs and Privileged Uses
 Three levels of protection:
 Copyright
 TPMs
 Legal protection of TPM
 Tension: copyright’s balance (level 1) can be
jeopardized by the legal protection (level 3) of TPMs
(level 2)
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Tension between TPMs and Privileged Uses
Consumers feared a technical monopoly over all use of
copyright works, lawful as well as unlawful.
 If a TPM is introduced which blocks all copying
 and it is unlawful to circumvent that TPM,
 right owners could technically prevent copying permitted
by exceptions or where the term of copyright has expired
 in addition, it would actually be unlawful to circumvent the
technological copy protection measures.
Users will not benefit from exceptions
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Tension between TPMs and Privileged Uses
 (Art. 6.4) “Member States should promote voluntary measures
taken by right holders, including the conclusion and
implementation of agreements between right holders and other
parties concerned, to accommodate achieving the objectives of
certain specific exceptions or limitations provided for in national
law.”
 In the absence of such voluntary measures or agreements,
Member States are obliged to take appropriate measures to
ensure that right holders provide beneficiaries of such exceptions
or limitations with appropriate means of benefiting from them.
 This provisions shall not apply to works or other subject-matter
made available to the public on agreed contractual terms in such a
way that members of the public may access them from a place and
at a time individually chosen by them.
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Tension between TPMs and Privileged Uses
What if the rightsholders do not provide the
users with appropriate means of benefiting
from the exceptions and limitations?
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Tension between TPMs and Freedom of Expression
 United States of America v. Elcom Ltd. a/k/a ElcomSoft Co. Ltd,
and Dmitry Sklyarov
 Universal City Studios, Inc. v. Reimerdes, 111 F.Supp. 2d 294
(S.D.N.Y. 2000)
 "Content Control System" ("CSS") circumvented by the program DeCSS
 Universal City Studios, Inc. v. Corley, 2001 U.S. App. LEXIS
25330 (2nd Cir. 2001)
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Tension between TPMs and Competition
 The Chamberlain Group, Inc. v. Skylink Technologies,
Inc., 381 F.3d 1178 (Fed. Cir. 2004)
 Garage door opener case
 Lexmark Int'l v. Static Control Components, 387 F.3d 522 (6th
Cir. 2004)
 Lexmark locked its printers using a microcontroller so that only authorized
toner cartridges could be used
 RealNetworks, Inc. v. DVD Copy Control Association, Inc., 641
F. Supp. 2d 913 (2009)
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