Laws against the circumvention of copyright technological protection
| Pages | 41-68 |
| Published date | 01 February 2003 |
| Date | 01 February 2003 |
| DOI | https://doi.org/10.1108/00220410310458000 |
| Author | J. Carlos Fernández‐Molina |
| Subject Matter | Information & knowledge management,Library & information science |
Copyright
technological
protection
41
Journal of Documentation
Vol. 59 No. 1, 2003
pp. 41-68
#MCB UP Limited
0022-0418
DOI 10.1108/00220410310458000
Received 28 May 2002
Revised 31 July 2002
Accepted 13 August
2002
Laws against the
circumvention of copyright
technological protection
J. Carlos FernaÂndez-Molina
School of Library and Information Science, University of Granada,
Granada, Spain
Keywords Copyright, Technology, Libraries
Abstract The problems that the great developments in digital information and the Internet are
creating for copyright may be partly solved through new legislation as well as through the
implementation of technological systems (generically known as ECMS) that help protect it. These
two approaches ± legal and technological ± interact, as the new copyright laws protect these
electronic measures through the prohibition of their circumvention. The contents of the three
main legal norms that have regulated this area to date, the US Digital Millennium Copyright Act,
the European Directive and the new Australian Copyright Act, are analysed in an attempt to
determine what impact they might have on the traditional limitations and exceptions to copyright
(fair use/dealing, private copying, library privileges) that benefit libraries, their users and the
general public.
1. Introduction
The development of digital information and of the Internet has greatly
improved the possibilities of access to information by any person and from any
point in the world. Nonetheless, these new options offered by the advance of
technology also represent a problem for copyright of all types of intellectual
works. When works were only available on a tangible medium, copyright
holders had a great degree of control of their use and reproduction. Copyright
laws gave them valid tools for exercising their rights, as the sources of
infraction were easily identifiable. However, the conversion of publications into
simple chains of bits allows their copying, modification and transmission
without the awareness of the holder of those rights, and practically without
cost or effort.
To do something in the face of these problems, two battlefronts have been
planned: to promulgate new legislation and to employ technology for the
protection of works. The first of these approaches, the legal one, focuses on
making more severe laws (in favour of the holders of copyright), prohibiting
activities that were once permitted and making the infractions of copyright
more expensive for the offender. The key to the technological approach is
perfectly defined by Clark (1996) as ``the answer to the machine is in the
machine'': a series of devices to allow identification of the material protected
under copyright, to control the use made of them, avoiding economic loss for
those who hold the rights, as well as the violation of the moral rights of their
authors. These systems receive different denominations, of which the most
habitual is electronic copyright management systems (ECMS), though also
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JDOC
59,1
42
used are the electronic rights management systems (ERMS), the digital rights
management systems (DRMS) or even trusted systems, employed by Stefik
(1997a, b). These two roads to the solution, the legal and technological routes,
do not act independently. They interact mutually, as understood by Sirinelli
(2001), who points out that the result is a structure with three levels:
(1) legal protection (copyright laws);
(2) technological protection; and
(3) the legal protection that comes in aid of the technological protection
(prohibition of acts of circumvention or neutralization).
Although the ECMS began to develop at the beginning of the 1990s (Garret and
Lyons, 1993) and some of the problems they raised were rapidly identified
(Oppenheim, 1996; Cornish, 1997), these problems have become more evident
since their legal recognition and protection by the WIPO treaties of 1996, the
WIPO Copyright Treaty (WIPO, 1996a) and the WIPO Performances and
Phonograms Treaty (1996b), both having taken effect in the first semester of
2002, and the laws (in the USA, Australia and the European Union (EU),
mainly) that have subsequently implemented them.
These technological systems now allow the use of bars or fences, that is,
methods of protection of property usual in other sectors, but until now not
technically possible for author rights (MacKaay, 1996; Bell, 1998; O'Rourke,
1998). This type of regulation by means of technology ± ``by the code'', to use
the expression by Lessig (1999a) ± is different from the traditional way of
regulation by law. Instead of defining the behaviours that are not desirable,
technology makes it possible to prevent certain behaviours and allow others
(Reidenberg, 1998), giving rise to a perfect compliance with the law: now users
do not have the possibility to choose whether they want to comply with the law
or go against it, as the conditions of use implemented by the technological
measures are imposed automatically. As a consequence, the level of
enforcement and its success no longer depend on the degree to which the public
understands and internalises the rules (Elkin-Koren, 2000).
This use of technology to control access and use of intellectual works
presents important problems for copyright limitations and exceptions. It is well
known that copyright does not have an absolute character, but is rather subject
to very diverse limitations, justified in that the gestation and production of the
works implies, inevitably, the participation of the society that has given
formation and means to the author, as well as contributing to the very nature of
the protected object ± the intellectual work ± to be incorporated into the
patrimony of humanity. In practice, this translates as a limitation of the
duration of these rights (70 years after the death of the author, as the general
rule) and in certain occasions the work can be used freely and for free. The
latter type of limitation is very diverse and varied, but we are concerned with
two particular exceptions: private copying (in the countries with a Latin-based
legal tradition) and its close (Anglo-Saxon) equivalent of fair use/dealing; and
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