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A Study on Application of the Anti- Circumvention Provision of the Digital Millennium Copyright Act

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A Study on Application of the Anti- Circumvention Provision of the Digital Millennium Copyright Act [논 문 ] A Study on Application of the Anti- Circumvention Provision of the Digital Millennium Copyright Act * Cho, Sung-Ja 1) ≪차 례 ≫ Ⅰ. Trade Agreements as a weapon Appeals Courts decisions to enforce the US intellectual concerning the anti- property rights circumvention provision of the Ⅱ. The Digital Millennium DMCA Copyright Act Ⅳ. Suggestions for application to Ⅲ. Judicial criticisms to the Korea DMCA: by reviewing two US Ⅰ. Trade Agreements as a weapon to enforce the US intellectual property rights For political reasons rather than contents, the Korea-US Free Trade Agreement (KOR-US FTA, below) is becoming an issue again about * Assistant Professor, Kangwon National University School of Law. 362東亞法學 第 43 號 whether the United States of America (USA or US, below) and the Republic of Korea (Korea, below) each can pass the FTA deal previously concluded between the two countries in April 2, 2007. According to Susan Schwab, who is the US Trade Representative and has aggressively negotiated and concluded FTA deals with various countries including Korea, stated that the bilateral agreements serves as a blueprint for protecting and enforcing intellectual property rights of US 1) , which means that one of the main roles of the US trade representative is to enforce intellectual property law issues, including the enforcement of US copyright law. Then, would this mean that US trade agreements are a weapon to export the US laws including the DMCA to other countries? There is no doubt that the intellectual property became one of the most important export items for several large US companies. So, it is not surprising that Schwab and her predecessor, Rob Portman, made intellectual property protection a centerpiece of international trade discussions. 2) In June 2006, considering that the intellectual property issues are so important, Schwab created a new Intellectual Property Office within the Office of the U.S. Trade Representative (USTR, below), in order to prepare trade negotiations with China and Russia that were identified in the USTR’s 2006 “Special 301”Annual Review as countries where “rampant counterfeiting and piracy problems continue… indicating a critical need for stronger intellectual property protection.” However, some groups in the US think differently about these trends of 1) Brooks Boliek, Copyright Biz Keeps Eye on Russia, The Hollywood Reporter, November 21, 2006 ( http://www.allbusiness.com/services/motion-pictures/4810445-1.html ). 2) Dames K. Matthew, Trade Agreements as the New Copyright Law, Information Today Inc., March 1, 2007 (http://pqasb.pqarchiver.com/infotoday/access/1228651021.html?dids =122865102 1:1228651021:1228651021&FMT=ABS&FMTS=ABS:FT:PAGE&date=Mar%2FApr+ 2007&author=K+Matthew+Dames&pub=Online&edition=&startpage=16&desc=Trade+ Agreements+as+the+New+Copyright+Law). Cho, Sung-Ja： A Study on Application of the Anti-Circumvention Provision of the DMCA 363 USTR. For example, the American Association of Law Library (AALL, below) distributed a notice of warning to its members about the dangers of an increasing scope of international trade agreements and their influence on the US Copyright Act on June 18, 2003. In particular, concerning the US trade negotiations with Chile and Singapore that included the Digital Millennium Copyright Act (DMCA, below) and the Sony Bono Copyright Term Extension Act (CTEA) of 1998 3) , AALL’s Washington Office issued the following statement 4) : The inclusion of the life + 70 copyright term and the strong version of the anti-circumvention rules not only impose a U.S.-centric version of copyright policy on our trading partners in the developing world, but also 'locks-in' bad copyright policies at the domestic level.… There are already a sufficient number of international copyright treaties and conventions that provide adequate standards for the protection of intellectual property. There is concern that expansive language in free-trade agreements may raise the level of copyright protection above and beyond the international standards under the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights annexed to the agreement establishing the World Trade Organization. This article aims to provide a couple of suggestions for our application of the anti-circumvention provision of the DMCA, by introducing the criticisms of US Appeals Courts and Congress. 3) The Copyright Term Extension Act (CTEA) of 1998– alternatively known as the Sonny Bono Copyright Term Extension Act, Sonny Bono Act, or pejoratively as the Mickey Mouse Protection Act– extended copyright terms in the United States by 20 years. Before the Act (under the Copyright Act of 1976), copyright would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship; the Act extended these terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier. The Act also affected copyright terms for copyrighted works published prior to January 1, 1978, also increasing their term of protection by 20 years, to a total of 95 years from publication. 4) Boliek, supra , p. 7. 364東亞法學 第 43 號 In part 2, a brief introduction about the DMCA is presented. In part 3, two US Appeals Court decisions about the DMCA, particularly concerning the anti-circumvention provisions, will be introduced and analyzed. And, in the final part, a couple of suggestions are presented for the judicial and legislative application in Korea. Ⅱ. The Digital Millennium Copyright Act (1) Summary of the DMCA The DMCA passed by a unanimous vote in the US Senate on October 8, 1998, and in the House on October 12, and was signed into law by President Bill Clinton on October 28, 1998. Going through excruciating negotiations and debates over four (4) years, the DMCA became a complex piece of legislation which required major changes in the US copyright law to address the digitally networked environment. According to the titles, the DMCA has five (5) purposes: (1) to implement the WIPO Internet Treaties; (2) to establish safe harbors for online service providers; (3) to permit temporary copies of program during the performance of computer maintenance; (4) to make miscellaneous amendments to then existing Copyright Act, including amendments which facilitate Internet broadcasting; and (5) to create sui generis protection for original boat hull designs. Specifically, the main initiative to enact the DMCA is to provide then existing US Copyright Act with a provision to implement the Copyright Treaty 5) and Performances and Phonograms Treaty 6) of the World 5) The WIPO Copyright Treaty was adopted in Geneva on December 20, 1996); entered into Cho, Sung-Ja： A Study on Application of the Anti-Circumvention Provision of the DMCA 365 Intellectual Property Organization (WIPO) 7) . Thus, Title I of the DMCA amends U.S. copyright law to comply with the above two treaties of WIPO. In particular, two major provisions in the WIPO treaties 8) required force on March 6, 2002 when 30 states submitted the instruments of ratification or accession under Article 20 (Entry into force of the Treaty); the Republic of Korea acceded to this Treaty on March 24, 2004, thereby entering into force on June 24, 2004; Source: International Bureau of WIPO ( http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html# P124_18388 ). 6) The WIPO Performances and Phonograms Treaty (WPPT) was adopted in Geneva on December 20, 1996); entered into force on March 20, 2002 when 30 states submitted the instruments of ratification or accession under Article 29 (Entry into force of the Treaty); Source: International Bureau of WIPO ( http://www.wipo.int/treaties/en/ip/wppt/trtdocs_ wo034.html ). 7) The World Intellectual Property Organization (WIPO) is a specialized agency of the United Nations. It is dedicated to developing a balanced and accessible international intellectual property (IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest. WIPO was established by the WIPO Convention in 1967 with a mandate from its Member States to promote the protection of IP throughout the world through cooperation among states and in collaboration with other international organizations. Its headquarters are in Geneva, Switzerland. 8) WIPO Copyright Treaty and Performances and Phonograms Treaty each has two provisions concerning legal remedies against circumventing technological protection measures and tampering with copyright management information; that is, Articles 11 and 12 of the Copyright Treaty are respectively the same as Articles 18 and 19 of the Performances and Phonograms Treaty, as follows: Article 11 of the Copyright Treaty (Article 18 of the Performances and Phonograms Treaty; Obligations concerning Technological Measures) 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 (emphasis added). Article 12 of the Copyright Treaty (Article 19 of the Performances and Phonograms Treaty; Obligations concerning Rights Management Information) (1) Contracting Parties shall provide adequate and effective
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