Legends and reality about the 1996 WIPO Treaties in the light of certain comments on Bill C-32

June 17th, 2010 by Dr. Mihály Ficsor Leave a reply »

I.  INTRODUCTION

It was at a copyright seminar abroad that I learned about the publication of Bill C-32 by which the Canadian government intends to adapt the copyright legislation to the digital on-line environment. By the time I arrived home, some of my European colleagues, with whom we usually exchange information, had sent me the links to various blog posts that were trying to offer a first assessment of the new Bill. Some of them contained objective analysis pointing out both the commendable elements of the draft provisions and those where further improvements were found desirable, while others seemed to reflect continued opposition to the government’s intention to modernize the copyright norms the way required by the international treaties and the emerging international standards.

Last December, I commented briefly (well, considering the importance of the issues, still relatively briefly) twice on certain allegations about a key aspect of the implementation of the WIPO “Internet Treaties” (the WCT and the WPPT); namely, the protection of technological measures (TPMs). I can see that the Canadian government has included provisions in Bill C-32 that, in this respect, duly take into account and implement the provisions of the Treaties. On the basis of the comments published in some blogs, however, I can also see that certain legends about the TPM protection required by the two Treaties still stubbornly persist no matter that they have no sufficient ground. Since I have been actively involved in the preparation and adoption of the Treaties and I have closely followed their implementation in various countries, I cannot resist pointing out why the Canadian government is right to implement the TPM provisions and why those who attack this step are wrong.[1]

II. TREATY OBLIGATIONS CONCERNING TECHNOLOGICAL PROTECTION MEASURES

Provisions of the WIPO Treaties on the protection of technological measures

Article 11 of the WIPO Copyright Treaty (WCT) on “Obligations concerning Technological Measures” provides as follows:

“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.”

Article 18 of the WIPO Performances and Phonograms Treaty (WPPT) prescribes – in respect of the rights of performers and producers of phonograms (sound recordings) provided in the Treaty – the same obligations.

Why the provisions were adopted

As the WIPO Guide to the WCT states, the “application of technological protection measures” is “a key condition for the protection, exercise and enforcement of copyright in the digital, networked environment.”[2] At the sessions of the WIPO Committees preparing the two Treaties and at the December 1996 Diplomatic Conference adopting them, there was agreement about this. Several delegations (including Argentina, Brazil, the Group of Latin American and Caribbean countries, the Group of African Countries, the European Communities, and the United States.) submitted proposals for the protection of TPMs.[3] The proposals differed with respect to certain details, but all corresponded to the spirit of the provisions that were ultimately unanimously adopted.

A paper prepared in 2001 by the International Bureau of WIPO outlined the reasons why the delegations attending the Diplomatic Conference unanimously supported providing adequate protection for TPMs:

“It was recognized, during the preparatory work that it is not sufficient to provide for appropriate rights in respect of digital uses of works, particularly uses on the Internet. In such an environment, no rights may be applied efficiently without the support of technological measures of protection…. There was agreement that the application of such measures… should be left to the interested rights owners, but also that appropriate legal provisions were needed to protect the use of such measures… Such provisions are included in Article 11… of the Treaty.”[4]

The obligation to provide adequate protection for technological measures extends to all technological measures, both to access controls and to copy controls

Article 11 of the WCT and Article 18 of the WPPT require that protection be provided for any kind of effective technological measures that owners of rights might apply in connection with the exercise of their rights in order to restrict acts not authorized by them or permitted by law.

Broadly speaking, the TPMs which must, under the Treaties, be protected fall into two main categories, which are usually labeled “access controls” and “copy controls.” While certain measures may contain capabilities that fall into both categories, their operations are conceptually distinct.

“Access controls,” as the label implies, enable the copyright owner (or its agent) to control who may have access to a protected work or other subject matter (e.g., sound recording). Some of the more common examples of access controls include password protection and encryption. Someone who lacks the password or the encryption key, simply cannot access the work at all. This is a simple example; in practice, access controls can and do operate in a much more nuanced and modulated fashion. For example, they can allow access only for a certain period of time, or only on a certain number of discrete occasions. Such more sophisticated access controls play an indispensable role in allowing copyright owners to manage the circumstances and preconditions of access, and thus enable a wide range of business models and means of dissemination of works in digital formats. In many instances, persons who obtain access to a work (whether with or without authorization from the copyright owner) may use it in a fashion that does not necessarily implicate the exercise of exclusive rights, nor an infringement of such rights. For example, a person who obtains an encryption key for an access control on a motion picture streamed to her personal computer may thereby be enabled to view the motion picture in a private setting, without necessarily making a copy or engaging in a communication of the work to the public.

“Copy controls,” by contrast, presume that access to a work has already been obtained. This category of TPMs controls the exercise of exclusive rights in the work accessed. In the case of the fundamental exclusive right of reproduction, the technological measure may prevent the making of any copies; may degrade the quality of copies so that they are unusable; or may, in a more nuanced fashion, allow the making of a set number of copies, or of copies at a certain quality level. In this example, the “copy control” label is an accurate one. However, technological measures in the category which is usually referred to broadly as “copy controls” may also control the ability of a person to exercise other exclusive rights, such as public performance or display (communication to the public). Therefore, the reference to “copy control,” in a broader sense, should be understood to also mean such other possible rights-control measures.

As stressed above, the text of the relevant provisions of the two Treaties do not limit the obligation of the Contracting Parties to only access controls or to only copy controls; the obligation of providing adequate protection and effective remedies against the circumvention of TPMs applies to all kinds of such measures.  As discussed below, not only the text of the Treaties’ provisions but also the documents of the preparatory work of the Treaties confirm that a regime for the protection of technological measures does not fulfill the requirements of the Treaties unless it extends to both categories of measures defined above.

The authoritative treatises on the two Treaties also reflect this position about the required coverage of TPM protection.[5]

No adequate protection for technological measures may be provided without prohibiting, and applying effective remedies, against certain “preparatory acts” (such as manufacture, import, distribution and offering to distribute circumvention devices or services)

The language of the Treaties’ provisions is clear regarding the nature of the protection that must be provided for such measures. The obligation is performance- and result-oriented in the sense that the protection granted must be “adequate,” and must go along with “effective legal remedies.”

The WIPO Guide to the WCT emphasizes and elaborates on these obligations:

“Contracting Parties may only be sure that they are able to fulfil their obligations under Article 11 of the Treaty if they provide the required protection and remedies: (i) against both unauthorized acts of circumvention, and the so-called ‘preparatory activities’ rendering such acts possible (that is, against the manufacture, importation and distribution of circumvention tools and the offering of services for circumvention); (ii) against all such acts in respect of both technological measures used for ‘access control’ and those used for the control of exercise of rights, such as ‘copy-control’ devices (it should be noted from this viewpoint that access control may have a double effect extending also to copy-control); (iii) not only against those devices whose only – sole – purpose is circumvention, but also against those which are primarily designed and produced for such purposes, which only have a limited, commercially significant objective or use other than circumvention, or about which it is obvious that they are meant for circumvention since they are marketed (advertised, etc.) as such; and (iv) not only against an entire device which is of the nature just described, but also against individual components or built-in special functions that correspond to the criteria indicated concerning entire devices.”[6]

I will discuss below why the obligation to provide “adequate protection” and “effective legal remedies” requires Contracting Parties not only to prohibit unauthorized acts of circumvention of technological measures, but also what are referred to as “preparatory acts,” i.e., the “acts” of manufacturing and distributing circumvention devices and offering circumvention services.  

It is to be noted that, the authoritative commentators on the two Treaties are also in agreement on that the requirement of providing adequate protection and effective remedies against unauthorized circumvention of TPMs may only be fulfilled if such protection and remedies also extends against the “preparatory acts.”[7]

Protection for access control measures

As stressed above, both the Treaties’ provisions and the documents of the preparatory work confirm that the negotiating governmental delegations did not intend to limit protection to certain TPMs, in particular – as alleged by some anti-TPM advocates – to copy controls (leaving other measures, in particular access controls  unprotected).

It is necessary to begin with the documents of the final sessions of the WIPO preparatory committees, when the governmental delegations were invited to submit “treaty-language” proposals, since those proposals served as a basis for the Basic Proposals submitted to the 1996 Diplomatic Conference

Two kinds of “treaty-language” proposals were presented.[8]

First, the proposal submitted by the U.S.,[9] and supported by the Group of African Countries[10] and by the European Community and its Member States,[11] did not refer separately to access controls and/or copy controls. However, as a clarification of what followed also from the text itself, a comment by the U.S. delegation in the preparatory committee pointed out that the proposal contemplated protection for both access controls and copy controls. Indeed, the U,S. delegation explained that what it proposed was “provisions to prohibit decoders and anti-copy prevention devices and services”[12] (in this context, “decoders” mentioned as devices other than “anti-copy prevention devices clearly referred to devices for the circumvention of access controls).

The second category of treaty-language proposals were those submitted by Argentina[13] – supported by the Group of Latin American and Caribbean Countries[14] – and Brazil.[15] They did not refer to TPMs in general, but rather directly and separately to the their two categories proposing the prohibition of both disabling access controls in the form of coded signals and disabling copy controls. (In addition to the prohibition of acts of circumvention of such measures, the delegations of those countries also proposed the prohibition of such “preparatory acts” as making, importing and distributing circumvention devices.)

No other treaty-language proposals were submitted in the preparatory committee, and no opposition was expressed at the committee meetings to the proposals covering both kinds of technological measures.[16]

There is no indication in the records of the Diplomatic Conference to suggest that, when the general term – “technological measures” – was adopted in the Treaties’ provisions, it was intended to narrow the coverage foreseen in the above-mentioned proposals only to “copy control” measures.

The relevant provisions of the drafts of what became the two Treaties submitted to the Diplomatic Conference (as “Basic Proposals”) foresaw the prohibition of “preparatory acts” and used the general term “protection-defeating devices.”[17] The notes added to the draft provisions explicitly confirm that the draft provisions’ use of general terms, such as “technological measures” and “protection-defeating devices,” was consistent with the proposals by the U.S., the E.C., Argentina and Brazil (also mentioning the comments made by China and the Republic of Korea) that contemplated coverage of both access control and copy control measures.[18]

The reports of Main Committee I and the Plenary of the Diplomatic Conference did not contain any statement or reference to any intention of any delegation to narrow the scope of the protection of TPMs from what was proposed previously.

In fact, the text, as finally adopted, removed from the draft provisions a possible basis for a narrower interpretation than that referred to in the preparatory work. The draft provisions (in referring to “protection-defeating devices”) contained the expression “used for, or in the course of, the exercise of rights.” One might have attempted to base a narrowing interpretation on this expression to suggest that the protection was only to extend to prohibiting circumvention of copy controls – or other rights control measures. However, the adopted provisions of the Treaties dropped the reference to “technological measures that are used by authors [performers, producers of phonograms] in exercising their rights.” Instead, the Treaties speak about “technological measures that are used by authors [performers, producers of phonograms] in connection with the exercise of their rights” (emphasis added). This better expresses the intended coverage of the provisions, because both copy controls and access controls are applied in connection with the exercise of rights: their use enables owners of rights to decide the circumstances under which they will authorize acts covered directly by their rights, as well as acts that are done “in connection” with such rights, such as the viewing of, or listening to, a work or sound recording in a private setting.

It is to be noted that, at the Diplomatic Conference, certain delegations spoke about the issue of access to works for beneficiaries of certain exceptions.[19] This, however, did not concern the question of whether or not protection should extend to both access controls and copy controls. The comments, rather, only stressed that the protection of TPMs should not endanger access to works from benefitting from certain exceptions (e.g., covering acts “permitted by law”) that are important from the viewpoint of the public interest. This is a different issue which is discussed below.

I have seen in a post by an anti-TPM blogger[20] on Bill C-32 that he tries to prove that – contrary to what follows from the text and the preparatory work of the two Treaties – the Treaties’ provisions do not cover all TPMs by quoting the following phrase from Marybeth Peters’ statement made in front of the competent Subcommittee of the U.S. House of Representatives on the draft law which became the Digital Millennium Copyright Act of 1998: “the treaties do not specifically require protection for access controls themselves.”[21]

This is part of the basis on which the blogger bluntly answers with a resounding “No” the question posed by him: “Isn’t the C-32 digital lock approach simply the required implementation to comply with the WIPO Internet Treaties?” Marybeth Peters’ statement, however, is far from being suitable to support the suggestion that the Canadian government is wrong because Bill C-32 provides for something that is not required by the Treaties.  This is quite obvious even if the sentence is read in the isolated way in which it is quoted. The Treaties truly do not list specifically the various categories of TPMs used by owners of rights in connection with the exercise of their rights; they also do not list specifically copy controls or measures that have both access control and copy control elements. The Treaties require adequate protection and effective remedies against the circumvention of all categories of TPMs. It is a non sequitur inference to deduce from the absence of a technology- or function-specific list of technological measures that, due to this, Contracting Parties would have the “flexibility” to decide that they protect certain TPMs but do not protect other TPMs.

Otherwise, if Marybeth Peters’ above-quoted phrase is not read in an isolated way but in the context in which it appears, it becomes even clearer that it does not support an allegation that the obligation to provide adequate protection and effective remedies against circumvention of TPMs might be fulfilled without such protection and remedies against the circumvention of access controls. She made it clear that this is not the case by pointing out in the same paragraph: “access controls such as encryption will be the primary and most effective measures that copyright owners are likely to use in the on-line environment.”[22]

Protection against certain “preparatory acts”

The WIPO Guide to the WCT sums up the reasons why the obligation to grant adequate protection and effective remedies against unauthorized circumvention of technological measures necessitates coverage of preparatory acts:

“It is foreseeable that, in general, acts of circumvention of technological protection measures will be carried out in private homes or offices, where enforcement will be very difficult. In addition to the technical difficulties for trying to control such situations, there may also be objections based on privacy considerations. Therefore, if legislation tries to only cover the acts of circumvention themselves, it cannot provide adequate legal protection and effective legal remedies against such acts, which, thus, in spite of the treaty obligations, would continue uncontrolled.

 “… Nevertheless, it is still possible to provide such protection and remedies. For this, it should be taken into account that, in view of the complexity of the technologies involved, in most cases, acts of circumvention may only be performed after the necessary circumvention device or service has been acquired. Their acquisition normally takes place outside the private sphere in special marketplaces for these kinds of devices and services. Thus, the possible way of providing protection and remedies as required by the Treaty is stopping unauthorized acts of circumvention by cutting the supply line of illicit circumvention devices and services through prohibiting the manufacture, importation and distribution of such devices and the offering of such services (the so-called ‘preparatory activities’).”[23]

The negotiating history, as reflected in the documents of the preparatory work in the WIPO committees and at the Diplomatic Conference, confirms that this is the only sound interpretation of the treaty text.

As discussed above, all treaty-language proposals submitted in the last sessions of the WIPO preparatory committees before the Diplomatic Conference foresaw obligations to provide protection and remedies against “preparatory acts” (manufacturing and distributing circumvention devices, etc.). As also mentioned above, the relevant provisions of the draft treaties submitted to the Diplomatic Conference explicitly provided for such obligations.

The records of the Diplomatic Conference reflect that there was quite general agreement among the delegations that the protection of TPMs should include protection against such preparatory acts (see below).

The provisions on technological measures that were finally adopted were presented as compromise language among all the proposed texts discussed earlier. Their more general language was worked out in the course of informal consultations. They were acceptable to all delegations and were adopted unanimously.[24] Accordingly, there is no reasonable basis to presume that the adopted provisions did not correspond to the previous understanding among the delegations that adequate protection of technological measures required the proscription of “preparatory acts” (irrespective of certain differences among the delegations concerning the exact scope of devices to be covered).

Therefore, the interpretation outlined in the WIPO Guide quoted above is well founded with respect to the coverage of devices. Thus, the scope of coverage issue should be decided on the basis of the application of the result-based adequacy test. The criteria presented in the WIPO Guide are in accordance with the test.

Nevertheless, in the blog to which I have referred above, an attempt is made to try to prove that adequate protection and effective remedies might be provided by only dealing with acts performed in private homes and the internal environment of institutions, offices, companies, etc. The alleged basis for this is partly again Marybeth Peters’ above-quoted statement made in front of the competent Subcommittee of the U.S. Congress, and partly a report by Professor Pamela Samuelson on what happened at the Diplomatic Conference.

The text quoted from Marybeth Peters’ statement is similar to the one mentioned above concerning access controls:

“Some have urged that the legislation not address the provision of products or services, but focus solely on acts of circumvention. They state that the treaties do not require such coverage, and argue that devices themselves are neutral, and can be used for either legitimate or illegitimate purposes. It is true that the treaties do not specifically refer to the provision of products or services, but merely require adequate protection and effective remedies against circumvention.”[25]

 However, the similarity also extends to the fact that, if this text is not read in an isolated way but in the context in which it appears, it does not support the allegation that the obligation to provide adequate protection and effective remedies against the circumvention of TPMs might be fulfilled without the establishment of a defense line against unauthorized circumventions already in the stage of “preparatory acts.”  This is so, since, in this respect, the essence of Marybeth Peters’ statement does not consist in anything else but pointing out and proving exactly the contrary:

 “Because of the difficulty involved in discovering and obtaining meaningful relief from individuals who engage in acts of circumvention, a broader prohibition extending to those in the business of providing the means for circumvention appears to be necessary to make the protection adequate and effective. It is the conduct of commercial suppliers that will enable and result in large-scale circumvention.”[26]

Let us take now Professor Samuelson’ report which reflects her belief to know precisely how the final text of the Treaties’ provisions was negotiated and adopted. In the blog the following description is quoted from her report:

 “At the diplomatic conference, there was little support for the Committee’s proposed language on circumvention technologies. Some countries opposed inclusion of any anticircumvention provision in the treaty. Others proposed a “sole purpose” or “sole intended purpose” standard for regulating circumvention technologies. Some wanted an explicit statement that carved out circumvention for fair use and public domain materials. The E.U. offered a proposal that would have required contracting parties to adopt adequate and effective legal measures to regulate devices and services intended for technology-defeating purposes.

 “Facing the prospect of little support for its proposal or the Committee’s draft anticircumvention provision, the U.S. delegation was in the uncomfortable position of trying to find a national delegation to introduce a compromise provision brokered by U.S. industry groups that would simply have required contracting parties to have adequate and effective legal protection against circumvention technologies andservices.In the end, such a delegation was found, and the final treaty embodied this sort of provision as Article 11.

 “This was, of course, a far cry from the provision that the U.S. had initially promoted. Still, it was an accomplishment to get any provision in the final treaty on this issue. The inclusion of terms like “adequate” and “effective” protection in the treaty will mean that U.S. firms will be able to challenge national regulations that they deem deficient.”

The documents of the Diplomatic Conference do not confirm various elements of this description. It is not clear on what those elements are based. Only one thing seems to be sure; namely that what is described does not reflect what Professor Samuelson heard personally during the debates at the sessions of the Diplomatic Conference since she was not among the participants; neither as a government delegate nor as a representative of an intergovernmental or non-governmental organization.[27] Thus, what is quoted above must be what she heard from somebody else who might have participated in the Diplomatic Conference and might have said something like this. It is needless to say, that such kinds of hearsays are not among those sources which may be accepted as a basis for the interpretation of treaties. Therefore, it would be also needless to state that, although I participated in all the sessions of the preparatory committees, of the Plenary of the Diplomatic Conference and its Main Committee I which dealt with these issues, as well as in the informal consultations, I cannot confirm those elements of the report. This is so because, even if I was a close witness of all the debates and negotiations, my statements alone would also have to be qualified as irrelevant from the viewpoint of the interpretation of the Treaties.

Articles 31 and 32 of the Vienna Convention on the Law of Treaties do identify those sources on which the interpretation of treaties may be based. The ordinary meaning of the terms – considered in their context and in the light of the object and purpose of a treaty – is decisive. Nevertheless, certain supplementary means – in particular the documents of the preparatory work – may and should be taken into account in order to confirm or establish the meaning of the terms of a treaty, if it, for some reasons, is unclear (or seems to be absurd or unreasonable).

As far as the ordinary meaning of the terms of the WIPO Internet Treaties, Professor Samuelson – it seems, with some regret – appears to agree with the above-quoted analysis of the WIPO Guide and Marybeth Peters’ statement, since she also points out: “The inclusion of terms like ‘adequate’ and ‘effective’ protection in the treaty will mean that U.S. firms will be able to challenge national regulations that they deem deficient.” It should only be added that not only the U.S. firms but anybody who cares for an appropriate implementation of the two Treaties will be able to challenge national laws as deficient if they do not include provisions that could make protection adequate and the remedies effective by prohibiting certain “preparatory acts.”

The documents of the preparatory work do not question the validity of these conclusions regarding the meaning of the Treaties’ terms. Just to the contrary.

As discussed and documented above, the provisions on technological measures of the Basic Proposals for what became the WCT and the WPPT were based on unopposed proposals of a number of countries (both industrialized countries and developing countries) made at the last sessions of the preparatory committees which reflected the agreement that adequate protection and remedies would be needed against trafficking in certain unauthorized circumvention means. The fact that a more general language was adopted at the Diplomatic Conference does not mean that this agreement was abandoned. As the analysis of the performance- and result-based requirement of adequate protection and effective remedies indicates, no such protection and remedies could truly be provided without protection against such trafficking. Contrary to what is suggested above, the records of the debates at the Diplomatic Conference do not reflect any real change of position in respect of the essence of this recognition.

In respect of the provisions if the Basic Proposals which became the WCT and the WPPT and which foresaw the explicit prohibition of certain preparatory acts, only the following amendments were submitted at the Diplomatic Conference:

–  The delegation of Singapore proposed only one change in the draft provisions on technological measures. It would have left intact the prohibition of “protection-defeating devices,” but in paragraph (3) on the definition of such devices would have replaced the expression “primary purpose or primary effect” of such devices by the expression “sole intended purpose.”[28]

–  The delegation of the Republic of Korea – without proposing any change in the text of the said provisions in the Basic Proposals – suggested the inclusion of a second paragraph in the relevant articles of the Basic proposals that would allow for Contracting Parties “to lay down conditions on technological measures designed to protect productions which are not original nor protected by law and productions in which the exclusive rights are limited by law, only to the extent permitted by the Berne Convention and this Treaty.”[29]

–  The amendments proposed by the delegation of Jamaica did not intend to change the essence of the obligation to prohibit certain “preparatory acts.” They would only involve the following changes in draft Article 13(1) of the Basic Proposal which became the WCT and in Article 22 of the Basic Proposal which became the WPPT (the changes proposed are emphasized in the text): “(1) Contracting Parties shall make unlawful the importation, manufacture or distribution of protection-defeating devices, or the offer or performance of any service having the same effect, by ally person knowing or having reasonable grounds to know by any person knowing or having reasonable ground for knowing that the device or service will be used for, or in the course of; the exercise of rights provided under this Treaty that is not authorized by the rightholder or the law.” Furthermore, the delegation proposed wording changes in the definition of “protection-defeating devices” in paragraph (3) of these articles.[30]

– On December 12, 1996, that is nine days before the end of the Diplomatic Conference, 30 African countries – that is not one single country that, according to the description quoted above, somehow the U.S. delegation had found with alleged difficulties to present it, but 30 African countries – presented the amended text of the provisions on technological measures[31] which were adopted on December 21, 1996, the same way as Article of the WCT and Article of the WPPT.

–  Only the delegation of China proposed the deletion of Article 13.[32] However, China later also joined the consensus concerning the more general language proposed by the 30 African countries, and ave interpreted it the way indicated above; namely that adequate protection and effective remedies required by it may only be provided if unauthorized “preparatory acts” (“protection-defeating devices”) are prohibited. This is duly reflected in Article 4 of the relevant Chinese Regulations which reads as follows:

No organization or person shall intentionally avoid or destroy the technical measures, shall intentionally manufacture, import, or provide the public with devices or components mainly used to avoid or destroy the technical measures, and shall  intentionally provide technical services to others to avoid or destroy the technical measures, unless it is provided for by any law or administrative regulation that the technical measures may be avoided.”[33]

Thus, the amendments submitted at the Diplomatic Conference do not confirm the allegations that the Treaties’ obligations to provide adequate protection and effective remedies against the circumvention of TPMs may be fulfilled without prohibiting certain “preparatory acts.”  Neither do the comments made in the debates at the Plenary and the sessions of Main Committee I.

At the Plenary, in the general debate,

–  the delegation of Chile supported the provisions of the Basic Proposals on TPMs and “protection-defeating devices;”[34]

–  the delegation of Indonesia simply said that those provisions should be studied further;[35]

–  the delegation of Singapore “agreed with the principle behind Article 13 (Obligations concerning Technological Measures);” it only felt that “the provision, as drafted, could [also] prohibit a protection defeating device for bona fide use;”[36]

–  the delegation of Pakistan said that “the specific problems relating to the obligations concerning technological measures… should be addressed in a clear and balanced manner, so that no intended consequences would result;”[37]

–  the delegation of the Republic of Korea stated that “technological measures such as copy-protection devices could be useful, but should not be over-employed to prohibit manufacture, importation or distribution of protection-defeating devices used within the permitted range of limitations on rights or in respect of non-copyrightable or public-domain materials;”[38]

–  the delegation of Algeria emphasized that it was necessary to find an international legal basis… for digital protection of data transmitted by electronic means;[39] and

–  the delegation of India made the general remark that “the proposed measures on technological protection were driven by techno-pessimism, in light of ever-shortening technology and business cycles.”[40]

At the sessions of Main Committee I

–  the delegation of Ghana first proposed the deletion of the provisions on technological measures; nevertheless, later added that it was ready to accept them on the condition that in the definition of “protection-defeating devices” the expression “the primary purpose” be replaced by the expression “the sole purpose.”[41]

–  the delegation of South Africa partly expressed agreement with Ghana, but it put the emphasis on the need for provisions on technological measures; the statement made by the South African delegate on December 10, 1996, outlined already the main elements of the text suggested two days later by 30 African countries;[42] and the delegations of Nigeria, Senegal and Cote d’Ivoire supported the statement made by the delegation of South Africa;[43]

–  the delegation of Canada did not oppose the prohibition of “preparatory acts,” but stated that, although a number of safeguards had been built into the wording of the draft articles of the Basic Proposals, two problems still should be addressed: “first that the wording would create problems for producers and sellers of equipment which might have a significant non-infringing use but which could also be used to defeat copyright protection;” and “second, the draft provisions could interfere with access to works in the public domain or restrict access under fair use of fair dealing provisions or of specific exceptions which were consistent with the Berne Convention and the proposed Treaty;”[44]

–  the delegation of the European Communities recognized that “the elements of primary purpose and primary effect needed to be carefully assessed” and said that “the provisions should possibly be simplified, without undermining their efficiency;” in that respect it expressed interest in the suggestions made by the delegate of South Africa;[45]

–  the delegation of Jamaica presented the wording changes suggested in its written amendments mentioned above, supported by the delegation of Trinidad and Tobago;[46]

–  the delegation of New Zealand proposed that, in the definition of “protection-defeating device,” the expression “primary purpose or primary effect” be replaced with the knowledge-based criterion “where it is known or there is reason to believe that it is to circumvent any process…;”[47]

–  the delegation of Colombia, speaking on behalf of the Group of Latin American and Caribbean countries, said that the countries of the region “recognized that measures related to obligations on technological measures and rights management information would lead to greater respect for the rights provided under the Treaties;”[48]

–  the delegation of the United Kingdom observed that “the provisions on technological measures were an essential underpinning of copyright and neighboring rights in the digital age;”[49]

–  the delegation of Australia stressed the need for avoiding that the language of the provisions on technological protection measures “unvittingly restrict access to material in circumstances where it was not subject to copyright;[50]

–  the delegation of Norway was of a similar position insisting that the new provisions should not prevent legitimate use of works;[51]

–  the delegation of Germany stressed that Contracting Parties should have sufficient freedom to provide effective remedies through criminal sanctions and civil remedies;[52]

–  the delegation of Hungary supported the essence of the articles on TPMs and on “protection-defeating devices.”[53]

To sum up: On the basis of the documents of the preparatory work as reflected in the records of the Diplomatic Conference, it may be stated that there were truly animated debates about the provisions on technological protection measures, but nothing in these documents contradicts to the interpretation outlined above; namely that, since no protection may be adequate without prohibiting certain “preparatory acts,” Contracting Parties should prohibit such acts; just they should duly determine their scope. The majority of those delegations did not, in fact, opposed the essence of the original language used in the Basic Proposals either, but rather made comments on certain details of the definition of “protection-defeating devices” or stressed the need for not extending the provisions to also cover non-protected material and for guaranteeing the applicability of certain exceptions and limitations (an issue which should and may be settled adequately as discussed below).

There were only two delegations which had the view temporarily, in a certain part of the discussions, that it would be better to leave out the proposed provisions on technological protection measures: Ghana in the debate at Main Committee I and China in a written amendment. However, as mentioned above, Ghana also expressed readiness to accept a compromise solution by limiting the scope of “protection-defeating devices” to what it believed to be appropriate as a minimum obligation, and China later joined the consensus on the provision proposed by 30 African countries which, in a more general way, laid down the essence of the requirements under the Treaties; namely, to provide for adequate protection of such measures and for effective remedies against their unauthorized circumvention. As also mentioned above, China has also adopted in its national legislation the correct interpretation of these requirements according to which no such protection and remedies may be provided without building the necessary defense line in the stage of the still controllable “preparatory acts.”

In spite of this, the above-mentioned blogger accuses the Canadian government that its Bill “goes far beyond what is strictly required to be compliant with the WIPO Internet treaties,” referring to a couple of draft laws some of the aspects of which do not seem to be in due accordance with the two Treaties and alleging that the majority of the 88 Contracting Parties has not implemented the Treaties in following the interpretation outlined above. The texts of the laws implementing the two Treaties do not confirm this allegation either. In fact, not only an overwhelming majority of the Contracting Parties, but also certain other countries that have not acceded to the Treaties, have implemented the Treaties by duly protecting both access controls and copy controls and by prohibiting the “preparatory acts.”

It is, of course, possible that, as in the case of several other international treaties, not all Contracting Parties implement the provisions binding them in the most adequate way. Nevertheless, one thing is 100% sure; namely that the Canadian government in Bill C-32 adopts the standards that its main trading partners –  and a great number of other countries where similarly thorough analyses and consultations have taken place – apply, based on a consistent interpretation of the relevant norms of the Treaties.

Therefore, to the basic question posed in the above-mentioned blog – “Isn’t the C-32 digital lock approach simply the required implementation to comply with the WIPO Internet Treaties?” – contrary to what is suggested by the blogger, a definite “Yes” is the answer. In this respect, the promise made in the title of the post is not fulfilled; the record has not been set straight.

The answers to several other questions raised in the blog would not seem to have a better chance if they were also subject to serious scrutiny. However, the framework of these comments would not allow analyzing them in a similar detailed manner. Nevertheless, it seems worthwhile referring to one more question, namely this: “Are the digital lock provisions in C-32 constitutional?” The answer given to this question in the blog is “Probably not.” As a basis for this assessment, reference is made to the views of certain professors. The essence of those views is that the provisions on the protection of technological measures are unconstitutional because “they do not contain a clear link to conventional copyright law.” This may also be paraphrased as a thesis that TMP protection is not part of the “traditional contour of copyright protection” or that it is “alien to the copyright paradigm.” In the following comments, I will deal with this allegation.

Technological measures must be protected even in circumstances in which acts of circumvention (whether direct or preparatory) are not directly tied to proof of copyright infringement – which, however, does not result in a sort of “access right” or other new aspect alien to the copyright paradigm

The effective TPMs that the Contracting Parties of the Treaties must protect include all those “that restrict acts in respect of” protected works, performances and phonograms, including acts of gaining access to them. From the viewpoint of this obligation, it should not be necessary to prove that the prohibited acts of circumvention constitute, or specifically further, infringements (i.e., unauthorized copying, communication to the public, or some other exercise of an exclusive right of the copyright owner). If the Diplomatic Conference had intended to necessarily link the prohibition of the acts involved to infringements, it would have provided it, as it did so in the case of the prohibited acts concerning rights management information.[54] It did not, because the delegations recognized that requiring proof of a direct link to copyright infringement would cut the heart out of the anti-circumvention obligation.

To apply legal prohibitions against circumvention only when they also involve actual or attempted copyright infringement would be to misapprehend the very purpose of the relevant provisions of WCT and WPPT.

Otherwise, while Article 11 of the WCT and Article 18 of the WPPT were innovations in terms of international norms, the Treaties’ drafters were not writing on a blank slate. Legal mechanisms offered in many national laws had long been used by owners of copyright to control access to their works. These legal access-control mechanisms take on even more significance in the digital environment, in which the legal and practical ability of owners of rights to determine the conditions under which access to their works is granted form the foundation of the business models for the widespread dissemination of these works to an ever broader public.

The most relevant examples, for the purpose of interpreting the WCT and WPPT provisions at issue here, are the legal regimes that control access to encrypted cable or satellite signals. Legal prohibitions against the circumvention of the access controls involved in dissemination of materials via cable and satellite were well established in many countries long before the Diplomatic Conference convened, and generally extended not only to the act of circumvention, but also to the “preparatory acts” involved in the manufacture or distribution of “black boxes,” “pirate smart cards,” and similar tools.[55] While these prohibitions were certainly intended to control access to copyrighted works and other protected subject matter disseminated via cable and satellite services, they applied irrespective of any proof of copyright infringement or of intent to infringe.[56] As with these precursor, technology-specific access-control statutes, violations of the national law prohibitions implementing Article 11 of the WCT and Article 18 of the WPPT cannot generally be excused on the basis of lack of proof tying them to a specific intended or accomplished infringement of copyright, and virtually none of the implementing national laws provide such a blanket defense.[57] Nor do any of these laws require affirmative proof of infringement (or of intent to infringe) as an element of the anti-circumvention prohibition. Such a requirement would be most objectionable if applied to prohibitions of “preparatory acts,” and would render the prohibition a nullity in most cases, since the manufacture and distribution of circumvention tools for use by another party generally cannot be tied directly to any specific act of circumvention, much less to whether that specific act was carried out with intent to infringe.[58]

The treaty provisions apply to all ‘technological measures that are used by [authors][performers or producers of phonograms] in connection with the exercise of their rightsand that restrict acts, in respect of their [works][performances or phonograms], which are not authorized by [the authors][the performers or the producers of phonograms] concerned’ (emphasis added). That is, all technological measures are covered that are used in connection with the exercise of rights. As it is discussed above, this means not only copy controls, but also access controls. Furthermore, not only technological measures simply controlling whether or not certain acts may be performed, but also those controlling, for example, the number of acts or the timeframe within which the they may be performed in accordance with the authorization granted by the owners of rights.

It is to be noted that „access” basically means original access to a work or object of related rights – by obtaining a copy thereof or being able to listen to it, watch it, study it, etc., while it is performed or communicated without obtaining a copy. Allowing such access took place also before the advent of digital technology and the adoption and application of the two Treaties in a controlled way ‘in connection with’ – that is, related to – the exercise of copyright or related rights, without resulting in a separate right of the owners of those rights. Without the possibility of controlling such (original) access – and without the legal machinery necessary for it, even if it was not provided in the copyright legislation proper – copyright and related rights could not have prevailed; there would not have been a real chance for owners of rights to exercise and enforce their rights.

Since the very birth of copyright, there have always been legally controlled forms of getting access to protected works and objects of related rights, such as buying copies of works and records, lending books from libraries, buying entrance fees for cinemas, theaters, concert halls and exhibition halls; paying newspaper, radio and television subscription fees, etc.

Even in the case of exceptions, there have been controlled forms of access also in the “traditional”, analogue environment. For example, nobody was allowed to walk into a book shop, take a book from the shelves and walk out with it without payment just because he wanted to benefit from the exception to the right of reproduction for the purposes of quotations or making a parody, or nobody was able to simply enter a theatre without an entrance ticket referring to his need to see a presentation of ‘Hamlet’ for the purpose of preparing his homework on Shakespeare’s dramas. There were and are other – adequate – ways to benefit from these and other exceptions.

If it were allowed to eliminate these control mechanisms, the copyright system would collapse. This would be the case, since, if there were free access to copies in book shops, record shops, rental shops, etc., free ntrance to cinemas, theaters and concert halls, etc., there would be no income of creators, publishers and producers to recoup their investments and even their operational costs, since no licensees would be able to pay remuneration to them. Such unauthorized acts of access would not qualify as copyright infringements proper, but if there were no legal protection against them, they would undermine the practical applicability of copyright and related right.

In the digital, networked environment the traditional chain of events is transformed: what used to be entering a book shop, buying a copy, bringing it home and reading it – or going to cinema, buying a ticket, entering the movie theater and watch the film – may be concentrated into simple clicks on the keyboard. In the case of these complex condensed acts, control by TPMs has the same role as property protection for copies of books and records in shops or by trespass laws against someone who tries to enter a theatre, cinema or concert hall without buying a ticket, etc.

This means that, there is nothing alien to the copyright paradigm in the application and protection of access controls. In the online environment, such measures may guarantee the kind of control of access to works and objects of related rights that have always existed as an indispensable corollary of copyright protection proper.  It is another matter that appropriate balance should be established between the protection of such and other TPMs and the applicability of certain exceptions and limitations important from the viewpoint of public interests.

Protection of technological protection measures and the application of exceptions and limitations

During the preparatory work of the two Treaties and of their implementing legislation in various countries, concern was expressed that protection of TPMs could undermine important public-interest exceptions to and limitations on copyright that ensure due access to works and objects of related rights.

The implementing legislation of various countries has addressed this potential problem in different ways: (1) through statutory exemptions to the prohibition of acts of circumvention of “access control” measures in certain narrow and circumscribed cases; (2) by providing regular administrative review, such as in the United States, where the Copyright Office engages in a triennial review of whether or not the protection of “access control” technological measures unduly restricts access to certain categories of works;[59] or, (3) by prescribing obligations to the owners of rights to guarantee access to the beneficiaries of certain public-interest exceptions through contractual arrangements and special intervention mechanisms in those cases where they do not fulfill this obligation, such as in the Member States of the European Union, etc.[60]

Aa result of the application of these legal measures, due balance has been established between adequate protection of copyright in the digital networked environment and the continued applicability of exceptions and limitations to copyright laws justified by the public interest.

One of the most important commentaries on the two Treaties sums up the underlying legislative considerations as follows:

 “In fact, several arguments have been presented in favour of not qualifyingprotection against acts of circumvention by limitations of and exceptions to the rights. The fear that rightholders might prevent access to their works through the application of technological measures and thus prevent users from exercising available limitations or exceptions, has been claimed to be unjustified, or at least largely exaggerated. Rightholders depend in economic terms on the consumption of their works. It is, therefore, in their own genuine interest to make them available to a wide public. The availability of works for purposes subject to public policy, such as education, library use or research may effectively be safeguarded through licensing agreements. Technological measures may even facilitate the operation of certain limitations and exceptions through a targeted technology, such as ‘copy once’ systems. Finally, technological protection measures will hardly be applied to all formats and categories of works.

 “Consequently, domestic legislators would be well advised to exercise caution when qualifying the protection against circumvention in such a way. Ongoing developments in technology, with respect to the relevant markets and to consumer behaviour might easily make too restrictive legislation turn out to be premature. Any exceptions to the protection of technological measures for those who benefit from limitations of or exceptions to the rights should: (1) give priority to voluntary unilateral measures of rightholders, or agreements between rightholders and such beneficiaries, concerning the use of the limitation or exception in question; (2) be restricted to the balanced application of particularly relevant and important limitations and exceptions in conformity with the conditions of the three-step test; (3) be based on the condition that beneficiaries of limitations or exceptions have legal access to the works concerned, and should (4) not permit uncontrolled circumvention of technological measures.”[61]

The WIPO Guide to the WCT also stresses the need for a cautious balancing of interests as it relates to the protection of technological measures and the application of exceptions, and points out, inter alia, that the applicability of certain exceptions to direct acts of circumvention does not necessarily justify an exemption to the prohibition of “preparatory acts:”

“The applicability of effective technological measures is an indispensable condition for the protection, exercise and enforcement of copyright in the digital, networked environment. Therefore, exceptions and limitations to the obligation provide adequate legal protection and effective legal remedies against the acts of circumvention must be very carefully crafted. Where they are permitted, they must be focused narrowly enough to preserve the effectiveness of the prohibition on circumvention. For example, an ‘exception’ to allow commercial distribution and trafficking in circumvention devices or services for the purpose of fair use would swallow the whole, since almost any such device could, in theory, be used for that purpose, and once placed on the market for such purpose, would become available to all to use with impunity. A declaration system included in the law – under which the importation and distribution of circumvention devices is allowed if the importer or the distributor, respectively, declares that the devices are to be made available for ‘permitted purposes’ is far from being a sufficient guarantee, since as soon as a circumvention device is distributed, it is impossible to reduce its use for ‘permitted purposes.’”[62]

Otherwise, the experience of countries that have duly implemented the two Treaties by providing adequate protection and effective remedies against unauthorized circumvention of both access controls and copy controls as well as against “preparatory acts” shows that the forecasts according to which the application and protection of TPMs will “lock up knowledge,” and do not make fair use, fair dealing the application of exceptions and limitations possible have turned out to be unfounded. Let us take the example of my country. In Hungary, the provisions of Article 6(4) of the E.U. Information Society (Copyright) Directive to provide an intervention mechanism to guarantee the applicability of certain exceptions required by public interests have been implemented – as also in several other EU Member States – by providing a mediation system. The Hungarian Copyright Experts Council   is competent for the mediation. These provisions have been in force since May 1, 2004, the date of Hungary’s accession to the E.U. Since then I have always had the honor to work as the President of the Council to whom the mediation submissions should be presented; thus, I know exactly the number of such submissions until today. The number is still ZERO. Well, it can be said that although we tend to be rebellious we are not litigious, mais quand même: the fact that there have been no complaints now for more than six years about the alleged detrimental effects of TPM protection on the applicability of exceptions and limitations seems to show quite clearly that the doomsday forecasts have proved to be unjustified.

-.-.-.-.-.-

After finishing these comments, I noticed that the blogger has now made specific recommendations for amendments to the TPM provisions in the Bill.[63] These include, among other things, limiting the protection of TPMs to circumvention for an infringing purpose. He proposes instead an exception that circumvention be permitted “for any lawful purpose”. It should be clear from my commentary that these proposals would not provide adequate legal protection for TPMs and would not result in a Bill that would comply with the Internet Treaties.

Budapest, June 16, 2010.                                 


* Dr. Ficsor served as Assistant Director General of the World Intellectual Property Organization (WIPO) in charge of copyright and  related  rights, and during his tenure, he was responsible for the preparation, negotiation and adoption of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). Currently he is President of the Hungarian Copyright Experts Council, Chairman of the Hungarian Copyright Forum Association, member of the Executive Committee of the International Literary and  Artistic Association  (ALAI), and Chairman of the Central and Eastern European Copyright Alliance (CEECA) with permanent observer status at the World Intellectual Property Organization (WIPO).  This paper was also posted on IP Osgoode.

For more information about the Copyright Modernization Act or Bill C-11 or copyright reform, see Change and the Copyright Modernization Act.

 

[1] For some of those comments, I have used elements of the outline of an article (under the provisional title of “Why protection against circumvention of ‘access control’ measures and ‘preparatory acts (trafficking in circumvention devices and services are requirements under the 1996 WIPO Treaties”) that I intend to publish later in a law journal.  The outline has been made available to various copyright experts inviting their comments, and at the same time authorizing them – and also others – to use it for any non-commercial purposes.

[2] “Guide to the Copyright and Related Rights Treaties Administered by WIPO,” WIPO publication No. 891(E), 2003 (hereinafter: WIPO Guide), pp 215-16.  (The Guide has been translated into Spanish and Japanese and the translations have been published as WIPO publications No. 891(S) and No. 891(J).)

[3] For a description of the proposals made during the preparatory work, see Mihály Ficsor: “The Law of Copyright and the Internet,” Oxford University Press, 2002 (hereinafter: Ficsor, Oxford University Press), pp. 338-405, paras. 6.47-6.74.

[4] WIPO document WIPO/CR/RIO/01/2 entitled “The WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT),” containing a paper prepared by the International Bureau of WIPO and presented at the National Seminar on the WIPO Internet Treaties in the Digital Environment (Rio de Janeiro, September 17 to 19, 2001) organized by WIPO in cooperation with the Ministry of Culture of Brazil, p. 7, para. 31. (Those parts of the text have been left out that refer in parallel to Article 12 of the WCT on “Obligations concerning Rights Management Information.”)

[5] See Jörg Reinbothe – Silke von Lewinski: “The WIPO Treaties 1996,” Butterworth – LexisNexisTM, 2002 (hereinafter: Reinbothe –  v. Lewinski), p. 143, paras 18 and 19 p (referring to both “access control technology” and “exploitation control technology” – the latter corresponding to the category of “copy controls” – in discussing the scope of TPMs to be protected);  and Sam Ricketson – Jane S. Ginsburg: “International Copyright and Neighboring Rights,” Oxford University Press, 2006 (hereinafter: Ricketson – Ginsburg) pp. 975-976, para. 15.16 (asking the question of “whether access controls are technological measures ‘used in connection with the exercise’ of exclusive rights” and answering it affirmatively). (See also Ficsor, Oxford University Press, pp. 549-50, para. C11.12.)

[6] WIPO Guide, p. 218, para. CT-11.16.

[7] See Reinbothe – v. Lewinski, 145, para 23 (stating that the obligation to provide “adequate protection” also requires protection against preparatory acts on the top of protection against the acts of circumvention themselves); and Ricketson – Ginsburg, p. 978, para. 15.20 (stating that the “the adequate and effective” proviso requires member states to bar the circulation of circumvention devices, and adding that, for the same reasons, a “sole intended purpose” standard also appears to be disallowed).  (See also Ficsor, Oxford University Press, pp. 549-50, para. C11.12.)

[8] For a detailed description of the preparatory work in the WIPO committees and at the Diplomatic Conference (with the text of the proposals and references to comments) see Ficsor, Oxford University Press,pp. 386 to 406.

[9] See WIPO document BCP/CE/VI/12, p. 38; in Ficsor, Oxford University Press, p. 389.

[10] See WIPO document BCP/CE/VI/14, para. 28; in Ficsor, Oxford University Press, p. 391.

[11] See WIPO document BCP/CE/VII/1-INR/CE/VI/1 pp. 3 and 5; in Ficsor, Oxford University Press, p. 394.

[12] See WIPO document BCP/CE/IV/2, Annex pp. 4-5; in Ficsor, Oxford University Press,p. 386.

[13] See WIPO document BCP/CE/V/12, p 36; in Ficsor, Oxford University Press, p. 390. The text of the Argentine proposal read as follows:

…The Contracting Parties shall enforce the same sanctions as are provided for in the event of copyright infringement of any person who:

(a) alters, removes, modifies, or in any way disables the technical devices incorporated in the copies of protected works or productions for the prevention or restriction of copying;

(b) alters, removes, modifies, or in any way disables coded signals designed to restrict the communication of protected works, productions or broadcasts to the public or to prevent the copying thereof;

(c) imports or markets apparatus, programs or technical devices that permit or facilitate the disablement of technical devices or signals incorporated to prevent or restrict the copying or communications of works and productions.” [Emphasis added.]

[14] See WIPO document BCP/CE/VI/15, p. 3; in Ficsor, Oxford University Press,p. 391.

[15] See WIPO document BCP/CE/V/12, p 36; in Ficsor, Oxford University Press, pp. 390-391. The text of the Brazilian proposal read as follows:

…1. Contracting Parties shall decide that the following acts must be considered illicit, as they are infringement to copyrights:

(a) to modify, eliminate or mutilate, by any means, the technical devices introduced in copies of protected works in order to avoid or to restraintheir reproduction, or the encrypted signals intended to limit the communication to the public of protected work or to avoid its copying;

(b) to make, import or commercialize any apparatus, programs or technical devices aimed primarily at allowing or facilitating the mutilation of the technical devices or signals introduced in order to avoid or limit copying or communication of protected works.”[Emphasis added.]

[16] The delegation of the Republic of Korea made certain comments without presenting any treaty-language proposal, but they did not concern this issue (the South Korean delegation stressed that the protection of technological measures should not be applied in respect of non-copyrighted materials and works in the public domain), while the delegations of China and Japan simply reserved their position. See WIPO document BCP/CE/VII/3-INR/CE/VI/3, p. 2; in Ficsor, Oxford University Press, p. 395; WIPO document BCP/CE/VI/12. p. 40; in Ficsor, Oxford University Press, p. 393.

[17] Records of the Diplomatic Conference, WIPO publication No. 348 (E) (hereinafter: Records) pp. 217 and 321.

[18] See Records, pp. 216 and 320. When the Chairman of Main Committee opened the debate on these draft provisions included in the Basic Proposals, he also clearly stated: “…The provisions on obligations concerning technological measures were based on the proposals presented by certain Governments in the preparatory process.” (Records, p. 709).

[19]  See Records, p. 710 (Republic of Korea), p. 523 (Canada).

[20] See Michael Geist: „Setting the Record Straight: 32 Questions and Answers on C-32’s Digital Lock Provisions” at http://www.michaelgeist.ca/content/view/5100/125/.

[21] Statement of Marybeth Peters, The Register of Copyrights before the Subcommittee on Courts and Intellectual Property, Committee on the Judiciary, United States House of Representatives 105th Congress, 1st Session, September 16, 1997, at www,copyright.gov/docs/2180_stat.html (hereinafter: Peters), title B.1.

[22] Ibid.

[23] WIPO Guide, pp. 217-18, paras CT-11.14-CT-11.15.

[24] See Records, pp. 757-758 and 626-627.

[25] Peters, title B.1.

[26] Ibid.

[27] See Records, pp 819-881 containing the List of Participants.

[28] Document CRNR/DC/12 see Records, p. 397.

[29] Documents CRNR/DC/24 and CRNR/DC/25; see Records, p. 408.

[30] Document CRNR/DC/37; see Records, p. 419.

[31] Documents CRNR/DC/56 and CRNR/DC/57.Rev; see Records, pp. 445 and 447.

[32] Document CRNR/DC/64; see Records, p. 485.

[33] Regulations on the Protection of the Rights of Communication to the Public through Information Networks adopted by the State Council on May 18, 2006 (entered into force on July1, 2006).

[34] See Records, p. 600.

[35] See Records, p. 610.

[36] See Records, p. 613.

[37] See Records, p. 616..

[38] See Records, p. 617.

[39] See Records, p. 618.

[40] See Records, p. 619.

[41] See Records, p. 710.

[42] See Records, pp.710 and 711. The Records reflect the statement of the South African delegate as follows: “He said that, for that reason, he would propose in writing that the obligation should simply be that Contracting Parties must provide adequate legal protection and effective remedies against the circumvention of certain technological measures, which would have three characteristics; first, they should be effective technological measures; second, they should be used by right holders in connection with the exercise of their rights under the Treaties; and, third, they should restrict acts which were not authorized by the right holders or permitted by law.”

[43] See Records, pp. 711 and 714. .

[44] Ibid.

[45] See Records, p. 713.

[46]See Records, pp. 713 and 715.

[47] See Records, p. 714.

[48] Ibid.

[49] Ibid.

[50] See Records, p. 715.

[51] Ibid.

[52] Ibid.

[53] Ibid.

[54]  See Article 12 of the WCT and Article 19 of the WPPT.

[55] See, e.g., 47 USC section 605 (e)(4) (1988), discussed in NII White Paper (Sept. 1995) at 234. See also Directive 98/84/EC (conditional access directive), harmonizing national laws of EU Member States.

[56] See Reinbothe – v.Lewinski at 142 (“the protection of conditional access technology against circumvention and abuse is usually granted irrespective of intellectual property rights or exceptions applying thereto”).

[57] In a few specific cases, legislative or administrative exceptions to such prohibitions may apply in circumstances in which, inter alia, no copyright infringement has occurred. See, e.g., 17 USC 1201 (g)(2)(D) (unauthorized circumvention for the purpose of encryption research is not prohibited under certain circumstances, which include, inter alia, if the circumvention does not constitute infringement of copyright).

[58] See Reinbothe – v. Lewinski at 146 (“this link [between Article 11 WCT and exclusive rights or exceptions thereto] does not appear to exist with respect to the protection against preparatory acts concerning the manufacture or distribution of circumvention devices or services. In any case, by their very nature the latter cannot be restricted to particular uses.”)

[59] Similar administrative review systems have been adopted by other countries, see, e.g., Singapore, which provides, under Section 261D(2), as follows: “The Minister may, by order published in the Gazette, exclude the operation of section 261C(1)(a) [which prohibits the circumvention of an access control] in relation to a specified work or other subject-matter or performance, or a specified class of works or other subject-matters or performances, if he is satisfied that any dealing with the work, subject-matter or performance or with the class of works, subject-matters or performances, being a dealing which does not amount to an infringement of copyright therein or an unauthorised use thereof (as the case may be), has been adversely impaired or affected as a result of the operation of this section.”

[60] For a description of implementing legislation concerning the “interface” between the protection of technological measures and the application of exceptions and limitations, see Ficsor, Oxford University Press,  pp. 556-63, paras. C11.23-C11.31.

[61] Reinbothe –  v. Lewinski, pp. 146-147 , para. 29 (footnote references left out).

[62] WIPO Guide, p. 219, para. CT-11.20.

[63] Fixing Bill C-32: Proposed Amendments to the Digital Lock Provisions, http://www.michaelgeist.ca/content/view/5117/125/

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