DRM) Technology in Contemporary Copyright

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The Role of Digital Rights Management (DRM) Technology in Contemporary Copyright

Joseph Straus Munich

International Forum on the Centennial of Chinese Copyright Legislation

Renmin University of China, Beijing October 15, 2010

• Copyright & technology – two old companions – dialectic relationship

• Technology promoter of (re)production and distribution of works & challenge of copyright

• Digitization – new quantitative & qualitative challenge

• Legal & technical response

• Where is the right balance of interests: creators & publishers v. users, hardware manufacturers, etc. → social progress?

China, the Technological Frontrunner

• 105 AD - Lun Cai invents paper manufacturing technique

• 1041 AD – Sheng Bi invents movable type printing

• No legal impact – due to social/intellectual environment [no revolution] and due fragmented to agricultural economy

[Chao Xu]

Europe – the Late(r) Commer

• 1439 – Johannes Gutenberg invents movable type printing

• 1469 – Johann von Speyer granted printing privilege by the city of Venice

• Etching technique (copper engraving) invented – privileges for reproduction granted (Albrecht Dürer)

• 15th-17th Century – numerous such privileges granted in Europe Social Revolution (Renaissance, humanism, reformation) & technology & market → protection against copying → printers & publishers, i.e. industry prime beneficiary

• Idea of intellectual property protecting authors –18th Century child

Technology Law

• Phonographs & gramophones → Creation of neighbouring rights • Cinematography → Rome Convention 1961 • Broadcasting & television → Phonogram Convention 1971 • Cable & satellites → Satellite Convention 1974 • Reprography → TRIPS 1994 • Recording → New approaches: Limitation of • Computer programs exclusive rights & statutory licenses & fair remuneration & proceeds collected and distributed by collecting societies © J. Straus 2010 -5- However

Limitations and Exclusions Allowed Only if Confined to

• Certain special cases which

• Do not conflict with a normal exploitation of the work and

• Do not unreasonably prejudice the legitimate interests of the right holder

[Art. 9 (2) BC, Art. 13 TRIPS]

Technology

• 1980s – Compact Disc (CD) • 1990s – Digital Video Disc/Digital Versatile Disc (DVD: DVD- ROM; DVD-R; DVD+R; DVD-RW; DVD-RAM)

• Digital technology & internet

• Digital technology & www 2.0 (broadband communication)

• Software → creation of & editing of digital content

• Online distribution of digital works

Consequences

• Analog works: – Production & storage & distribution of physical carriers necessary and costly – Distribution of illegal copies huge logistic problem

• Digital works – Cheap and easy copying & distribution of commercially valuable digital content without physical carrier – CD & DVD → PC → internet → distribution to third parties – File-sharing network → exchange of files with, e.g. music works – File-sharing networks based on “p2p” software

DRM-Technology/TPM as Response

• “The answer to the machine is in the machine” Clarck 1996

• DRM – digitally controlled administration of rights, i.e. enforcement of rights in digital environment by technological means – e.g. encryption, scrambling or other transformation of the work or other subject-matter or a copy control mechanism - [technical protection measures TPM]

• Allows copyright owners to control the way consumers access and use digital works – also following the delivery

• Functions as electronic licensing system

DRM’s Impact

• Seen as business enablers for digital distribution of content and drivers for the variety of new business models that consumers may want OECD

• DRM may facilitate the creation and dissemination of creative works

• By protecting digital works from unauthorized downloading, viewing and possible creation of derivative works – potential encouragement for the content right holder to make content available for digitization and subsequent digital sale OECD

DRM Technologies – Platform Technologies

• Windows media DRM → provides secure delivery of audio/video content over an IP network to a PC/other playback device → distributer can control how content used

• OMA DRM → implemented in over 550 portable phone models → for controlling cell phone ring tones & access to media files such as video

• Methods bypassing DRM → analog loopback transformation (analog hole), decryption keys, pirate decryption, watermarks removal, etc.

DRM – Patented Technology: EP 1 329 791 as Example

• A method for controlling distribution and use of digital works, the method comprising the steps of: – creating usage rights from a usage rights grammar, each of said usage rights defining a specific instance of how a digital work may be used or distributed; – associating said usage rights with a digital work; – storing said digital work and its associated usage rights in a first repository, said first repository having a server mode of operation for enabling said first repository to grant or deny requests from other repositories to access digital works according to usage rights and said first repository having a requester mode of operation for enabling said first repository to request access to digital works;

DRM – Patented Technology: EP 1 329 791 as Example

– a second repository, having a requester mode of operation for enabling said second repository to request access to digital works, initiating a request to access said digital work in said first repository, said request specifying a transport usage right, said transport usage right being a right to copy, a right to transfer or a right to loan;

– the first repository determining if said specified transport usage right is associated with said digital work;

EP 1 329 791

Technology Law

• Digitization → WCT (Art. 11, 12) 1996 • DRM/TPM → WPPT (Art. 18, 19) 1996 • Circumventing → DMCA (17 U.S.C. §§ 1201,1202) 1998 • Technologies → EUCD (Art. 6, 7) 2001 → ChCA (Art. 47 [48] (6), (7)) 2001 → GCA (Sections 95a, 95b) 2003 → ChRPRCIN (Art. 4, 5, 12 26) 2006

Art. 11 WCT & Art. 18 WPPT

• Provide adequate legal protection & effective legal remedies

• Against the circumvention of effective technological means

• Used by authors in connection with the exercise of their rights under WCT & BC

• Restricting acts with respect of their works

• Not authorized by the authors concerned or

• Permitted by law

Art. 6 (2) EUCD Sec. 95a GCA

• Circumvention of effective TPMs prohibited • By deliberate or negligent acts, including • Preparatory acts of: manufacture, import, distribution, sale, rental, advertisement for sale or rental or possession of – devices, products or components or the provision of services which are – promoted, advertised or marketed for the purpose of circumvention of or – have only a limited commercial significant purpose or use other than to circumvent – are primarily designed, produced, adapted or performed for enabling or facilitating the circumvention of any effective TPMs

Art. 48(6) ChCA

• Prohibit circumvention of effective, valid and defensive TPMs*

• If acts done deliberately

• Preparatory acts, limited to information and network communication (i.e. Internet dissemination)

• Not covered: Rental, advertisement for sale or rental, or possession for commercial purposes

* Offensive TPM not protected – KV300L++ case – Jiangmin NewTech, Ltd.

Art. 6 (4) EUCD

• Member states shall take appropriate measures – to ensure that right holders make available to the beneficiary of an exception or limitation to their exclusive rights means of benefiting from that exception or limitation

– to the extent necessary to benefit from that exception/limitation, and

– When the beneficiary has legal access to the protected work

Sec. 95b GCA – Enforcement of Restricting Provisions

• Right holders employing TPM obliged – to provide the beneficiaries of exclusions/limitations – with the means necessary to be able to make the required use – provided they have lawful access to the work – administrators of justice & public safety, handicapped persons, collections for use in churches and schools; school broadcast; for teaching and research of the public – beneficiaries have the right to act against violators of this obligations • Applicable only to off-line access, not to works made available to the public online based on contract

Article 12 RPRCIN

• TPM protecting the right of communication through information network maybe avoided

• To provide certain beneficiaries of exclusions with their rights:

– To a small number of people engaged in teaching or scientific research for the purpose of teaching or scientific research – in case of published work, performance or audio-visual product

– Not for profit purposes to the blind in case of published written works in a unique way as particularly perceptible by the blind

– State organs exercising functions in administrative and judicial procedures

– Carrying out any testing on the computer as well as its system or the safety performance of the network through the information network

• Users/buyers – not adequately informed on DRM use/licensing conditions • Beneficiaries of exceptions/limitations not adequately enabled to take advantage of their entitlement – In China – as a matter of fact not really in a position to effectively avoid TPM – In Europe – to in practice act against violaters – costs, risks, etc. • DRM – in practice preventing also access to works in public domain • Licensing conditions not always in line, e.g. with competition law

Economic Impact on Sound Recording Industry

• 1999 – World turnover US $ 40 Billion

• 2009 – World turnover US $ 25 Billion

Bundesverband der Musikindustrie

Overall Development of Copyright Industries

• DRM – an indispensible facilitator for exploitation of digital works

• WCT/WPPT & EU & PR China legislation – not perfect but successfully serving needs of creators and users

• For a better balance of interests:

– Rules on transparent and adequate upfront information on DRM conditions of users should be adopted

– DRM licensing conditions should be monitored (regulated?)

– To satisfy justified needs of beneficiaries of exceptions – technical possibilities should be better used – harmonized standards established & imposed on DRM/TPM users

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