Is the Legal Protection of Technological Protection Measures Unnecessary - Assignment Example

Is the legal protection of technological protection measures unnecessary? If so, should we repeal the anti-circumvention provisions? Grade Course Instructor’s Name (May 10th, 2014) Is the legal protection of technological protection measures unnecessary? If so, should we repeal the anti-circumvention provisions? The legal protection of technological protection measures is unnecessary and thus there is a need to repeal the anti-circumvention provisions. This is because; the legal protection of technological protection measures is ambiguous and inoperable per se, as there are certain limitations and exceptions that must be applied to secure the legal use of such copyrighted work, even without the direct consent of the copyright holders. According to Article 6(3) of Directive 2001/29/EC1, legal protection of technological protection measures entails the protection of the unauthorized access and use of copyrighted material, whether software or hardware, without the consent of the copyright holder. Thus, in line with this definition, the anti-circumvention laws under World Intellectual Property Organization Copyright Treaty (WIPO) in [1996] became part of the laws implemented domestically by the international community, providing that such countries shall provide adequate legal protection against the circumvention of the individual rights established by individuals in protecting their own work2. According to the European Communities Act 19723, the UK is bound by the laws enacted by the European Union. Thus, on the event that there is a conflict between the domestic laws of the UK and the laws enacted by the European Union, the laws enacted by the European Union takes preference. This simply means that the UK and the rest of the member states of the European Union are bound by the provisions of the Directive 2001/29/EC [2001], which requires that such countries shall adhere to the requirements to protect the technological protection measures against any infringement by the individuals and citizens within the countries. The implementation of the WIPO Copyright Treaty provided for certain exceptions, which has made it legal and acceptable to circumvent the legal protection that is offered to technological protection measures. These exceptions were also echoed by the Directive 2001/29/EC [2001]4, which offered, under section 14, that the exceptions to the implementation of the legal protection of technological protection measures should permit the legal use of the protected work in the public, for the purpose of teaching and education. This simply means that the member states of the European Union can therefore enact laws that will allow for circumventing the copyright protection laws, regardless of the fact that such protection measures are initially protected under the WIPO copyright laws treaty. Thus, the anti-circumvention provisions still remains redundant for as long as the public interest is concerned. Therefore, there is a need to repeal the anti-circumvention provisions. First, the need for repealing the anti-circumvention provisions emanates from the fact that, Article 6(3) of Directive 2001/29/EC conflicts with the provision of the Copyright, Designs and Patents Act 1988 (c. 48)5. This is because, according to Copyright, Designs and Patents Act 1988, the copyright protection rights for an individual copyrighted material should last for 70 years, after which the public is then free to access and make use of the material without the need to seek for consent from the copyright holder. However, Article 6(4) of Directive 2001/29/EC6 provides for the legal protection of the technological protection measures without any mention or provision for the time constraint. This simply means that technological protection under this section of the directive allows the copyright holders to extend the duration for which they hold the copyright protection rights for their different products indefinitely. This would in turn keep the public from being unable to enjoy the public benefit interest that was being protected by the Copyright, Designs and Patents Act 1988 when it was enacted to limit the copyright freedoms for the individual copyrighted material to 70 years, so that the public can thereafter gain the benefit of free access of the copyrighted material. The silence of this provision of the anti-circumvention law provides a room for both legitimate circumvention of the copyrighted materials by users and the right for the copyright holders to refuse to grant the access right when such rights are due. This is because, when such provision of the anti-circumvention law does not give a time constraint attached to the copyrighted materials, individual users can circumvent the copyrighted material and make use of it after any duration, by holding that the copyright protection offered is not limited in time as is required under the provisions of the Copyright, Designs and Patents Act 1988 (5). Therefore, the anti-circumvention provisions under Article 6(4) of Directive 2001/29/EC require to be repealed, so that they can provide a well defined time span for which the legal protection of technological protection measures should last. This would in turn help to mitigate the conflict that currently exists between this provision of the anti-circumvention law and the requirements of Copyright, Designs and Patents Act 1988. Secondly, the need to repeal the anti-circumvention provisions emanates from the fact that; Article 5(3) of Directive 2001/29/EC provides that member states of the European Union should establish appropriate exceptions to both article (2) of the Directive 2001/29/EC and article (3) of the same directive, which covers the right for reproduction of the copyrighted materials and the right for communication to the public, for the purpose of allowing teaching and scientific research using the copyrighted materials7. Article (5) provides that for as long s the copyright holder is acknowledged using the name of the author of the copyrighted materials and also through providing information related to the source of the material, then, it would be appropriate to use such materials without the direct consent of the owner of the material. However, the beneficiaries of exceptions to copyrighted materials are required to appeal to the Secretary of State for the owners of the copyrighted materials to be required to provide the beneficiaries of the exceptions with accesses to the materials8. It is only after appealing to the Secretary of State that the secretary can in turn require that the copyright holder allows access to the beneficiaries. The effect of this circumvention provision is that it serves to stifle research and teaching, since the whole process of appealing to the Secretary of State so that the secretary can in turn require the copyright holder to avail the material access rights is a tedious and time consuming process. This would mean that important research and teaching into important aspects of technology that has been provided with legal protection measures will be derailed. Therefore there is a need to repeal the anti-circumvention proposals, so that the beneficiaries of exceptions to the copyrighted material can require the owners of the copyrighted materials to provide access right, as opposed to following the process of applying to the Secretary of State, which is cumbersome, time consuming and inflexible9. Thirdly, there is a need to repeal the provisions of the anti-circumvention laws, to eliminate the existing ambiguity, which creates room for non-uniform application of the anti-circumvention provisions. Non-commercial circumvention of the copyrighted material has been allowed under the newly created section 296ZA of the Copyright, Designs and Patents Act 198810. However, the non-commercial distribution will only be allowed on a small scale, which does not seem to prejudice the interest of copyright holder. This serves to create some form of ambiguity, considering the fact that the determination of the minimally applicable non-commercial distribution of the copyrighted material may not have equal measures under different circumstances and technological components. The effect is that the determination and the definition of what can affect the copyright holder prejudicially have been left for the determination by the individual parties or the legal process. The ambiguity of section 296ZA of the Copyright, Designs and Patents Act 1988 has also been added to by the fact that; the section provides that the threshold for determining criminal liability for the infringement of the copyright protection measures is not intent, but the mere fact that the infringing party knew or had reasons to believe that his/her actions amounted to an infringement. This provision becomes controversial because there is not accurate measure of the knowledge or believability of an individual, which is opposed to intention that can easily be identified. Thus this provision creates room for diverse interpretation of and application of the anti-circumvention legal provision. This ambiguity was demonstrated in the case of Sony v Ball [2004] EWHC 1738 (Ch)11, where Ball was accused of manufacturing and marketing a modification to the Sony PlayStation, which would allow for bypassing the encrypted codes when playing the game. While the intent of this modification was a security research evaluation and review which is allowed as an exception under Article 5(3) of Directive 2001/29/EC, the case was ruled on the basis of knowledge. Thus, Ball was found culpable for infringing the copyright protection of the Sony PlayStation protection measures. The ruling contrasted the exception provided for advancing research in issues of technological security, because knowing that there was a possible infringement, as opposed to the intent for which the modification was done, was applied as the basis of determining the liability. This simply creates ambiguity between the requirements of Article 5(3) of Directive 2001/29/EC and the provisions of section 296ZA of the Copyright, Designs and Patents Act 1988. This necessitates the need to repeal the anti-circumvention provisions of the Act, so that it can eliminate the ambiguity and align to the requirements of the directives allowing exceptions for research into technological security. Fourthly, the anti-circumvention provisions need to be repealed, since their operations have left the software developers in a very precarious position. This is because, software developers often and mostly depends on reverse engineering in order to develop alternative software programs that addresses the shortcomings that are associated with the already existing software12. Reverse engineering is a process that definitely suits the definition of the Article 6(3) of Directive 2001/29/EC, which defines the infringement of the legal protection of technological protection measures as any access and use of the copyrighted material without the consent of the copyright holder. Therefore, considering the fact that reverse engineering, the process mostly applied by the software developers highly depends on accessing and using an already existing software program as the prototype for modification and advancement, to eventually come up with a new software program, the process would amount to an infringement of the copyrighted material’s legal protection. This occurrence jeopardizes the need for research and advancement through reverse engineering, and thus creates the need to have the anti-circumvention provisions repealed, so they can reflect the vital need for research and advancement that is associated with unrestricted software development through reverse engineering. The final reason why the anti-circumvention provisions need to be repealed is that they are too broad, such that they have provided blanket coverage of technical protection measures, which in turn jeopardizes the competition policy13. While there is a dire need to offer protection for copyrighted materials, there is an even more need to ensure that competition is not stifled by the legal protection for the copyrighted materials, and instead monopolies established. The definition of what constitutes the infringement of copyright protection measures as provided under the Article 6(3) of Directive 2001/29/EC is too broad, such that it does not leave any room for healthy competition14. This because, Article 6(3) of Directive 2001/29/EC defines the violation of the copyright protection as any act of accessing copyrighted materials without the consent of the copyright holder, which may entail the modification of such copyrighted material. This simply means that manufacturers of compatible systems and accessories to the already existing copyrighted material based on the application of the technical knowledge of such copyrights would amount to an infringement. Thus, there is a need to repeal the anti-circumvention provisions, to ensure that they only cover copyrights. Bibliography 1. Article 6(3) of Directive 2001/29/EC 2. World Intellectual Property Organization Copyright Treaty (WIPO) in [1996] 3. European Communities Act 1972 4. Directive 2001/29/EC [2001] 5. Copyright, Designs and Patents Act 1988 (c. 48) 6. Article 6(4) of Directive 2001/29/EC 7. Article 5(3) of Directive 2001/29/EC 8. Hugenholtz, Bernt. ‘Why the Copyright Directive is Unimportant, and Possibly Invalid’ (EIPR, 2000), 501-513. 9. section 296ZA of the Copyright, Designs and Patents Act 1988 10. Sony v Ball [2004] EWHC 1738 Read More