How to Regulate TPM/DRMs? The Information and Communications Regime April 7-8, 2006 The...
-
Upload
margaret-bruce -
Category
Documents
-
view
218 -
download
0
Transcript of How to Regulate TPM/DRMs? The Information and Communications Regime April 7-8, 2006 The...
How to Regulate TPM/DRMs?
The Information and Communications Regime
April 7-8, 2006
The International Intellectual Property Regime complex
Michigan State University College of Law
Manon Ress, CPTech
OUTLINE
Background What is protected legally? Hacking, contracts and expectations Some implementations Rethinking the legal regime for TPM/DRM Proposal
Background digital information technologies has created
uncertainly re access to knowledge goods it is now inexpensive (free?) to copy distribute works
to millions of persons there's a large degree of insecurity among publishers
or producers
rise of new efforts to control or limit the copying, or uses, of creative works and data.
TPM/DRM characteristics operate with or without standardization
depending upon the nature of the publishing standardized for recorded performances of music or
motion pictures but not for all uses if effective, provide possibility of managing
works in ways not possible in print or analogue (eliminate all unauthorized copying or uses of works)
system of private rules for the use of information designed by and for publishers to control
Description
strategy for controlling the uses of the works is both technological and legal.
It involves effort to promote both public and private standards combination of (1) effective technological locks on
uses of information, (2) a system of tracking and controlling uses, and (3) legal prohibitions against anti-circumvention of (1) and (2).
What is protected legally? 1996 WIPO Copyright Treaty (WCT) & WIPO
Performances and Phonogram Treaty (WPPT) NOTE: These treaties are unusual: that they did not seek to harmonize global laws on copyright, but rather created new and untested standards to be implemented by national governments
These treaties require that member states: “provide adequate legal protection and effective legal
remedies" against the circumvention of effective technological measures and against any person knowingly removing, altering, distributing…
these obligations require a legal environment to protect the TPM/DRM regime
Issues Hacking is possible so success in limiting access
depends upon actions of governments to prohibit anti-circumvention
Contracts that should be enforced by governments? Expectations are changing but there is Public Interest in
Unauthorized Uses of Works Knowledge goods are “non-rival in consumption” and
can become (as defined by economists) public goods (to everyone at no cost)
More Issues for Knowledge Goods K.G. (2)
But unlike pure public goods (national defense), it is both possible and common to limit access. Scarcity of k.g. is a function of private and government efforts to protect barriers to access.
Justifications: k. g. will not be created without barriers to access, or a moral or ethical obligation to give creators/publishers control over the use of their works
More Issues for Knowledge Goods
K.G. (3) types of k. g. highly heterogeneous in character
& costs syllabus, publishing of laws and regulations, reports
of the activities of government agencies etc. feature films, design of computer semi conductor
chips, the creation and maintenance of certain databases etc.
These are less likely to be undertaken without an expectation of revenue from the sale of the work
Implementations in high-income countries
US: the Digital Millennium Copyright Act, known as the DMCA (1998). As the first model, it is influential.
• basic approach was to provide for the automatic protection of all TPM/DRM regimes, but to provide for limited areas where there exceptions to the anti-circumvention rules.
EU’s system includes an "Internet Copyright Directive," or Directive 2001/29/EC , as well as other directives that set out the regulatory framework for TPM/DRM regimes. Implementation is not harmonized.
Japan, Australia …and Canada soon
Implementations in Developing
countries 58 contracting parties to the WCT and 57 to the WPPT
largest numbers of countries that have signed the treaties are from the developing world, including many countries with very limited use of the Internet or computer
Five are defined by the UN as Least Developed Countries (LDCs), including Burkina Faso, Guinea, Mali, Senegal and Togo
In 2004, nine of the WCT members had a per capita gross national income (GNI) of less than $1,000, and more than half (31) had per capita incomes of less than $3,000 per year.
response to trade pressures from the United States or other high-income countries & mimic the legal approaches now used in high-income countries
Rethinking the legal regime for TPM/DRM Many concerns but at the core: predictable & harmful
impact of having private parties -- publishers -- determine the default rules for access to k.g.
The starting point is that the TPM/DRM itself must be protected from circumvention, independent of the work that is protected, and without regard to the likely impact on the uses of the works.
Let's explore alternative ways of regulating the TPM/DRM regimes more consistent with protecting access to knowledge goods
Proposal No automatic legal protections to TPM/DRMs but
system requiring vendors and users to register to apply for protection against circumvention
Need to explain how the regime will respond to legitimate uses of the works under public (rather than private) standards for access
Legal protection would not be forthcoming, until the regulator was satisfied that regime does not inappropriately restrict access to the work
Registration
Instead of providing automatic protection, a system requiring vendors or publishers to register
It could involve a fee It could involved negotiations to protect
user rights It could be for specific uses
Conditions
Obligations for protection of copyrighted works are different from obligations regarding TPM/DRM The “lock” does not need broader rights Not every use of copyrighted goods Not use that are against public policy
Conditions (2)
Protection should not be extended to DRM on works not protected by copyright
Protection only for interest of the CR owner
Term can be shorter Lock only when needed to protect
legitimate interests of CR owner
Conditions (3)
DRM is a contract and should be subject to public policy before being enforceable
Review of DRM can be different from one for TPM For ex. DRM that prohibit private copy, time
shift Major concerns for non-negotiated contracts
Fora
New systems could be proposed and implemented in countries willing to experiment and promote policies of protecting access to knowledge
Specific area
Entire copyright field? Special area
Public science where norms re access are esp. important
Publicly funded science based upon a different economic model
Examples in copyleft type rules see HapMap licenses
EXCERPTS FROM THE ORIGINAL HAPMAP TERMS AND CONDITIONS FOR ACCESS TO AND USE OF THE GENOTYPE DATABASE
2. You may access and conduct queries of the Genotype Database and copy, extract, distribute or otherwise use copies of the whole or any part of the Genotype Database's data as you receive it, in any medium and for all (including for commercial) purposes, provided always that:
a. by your actions (whether now or in the future), you shall not restrict the access to, or the use which may be made by others of, the Genotype Database or the data that it contains;
b. in particular, but without limitation, i. you shall not file any patent applications that contain claims to any composition of matter of
any single nucleotide polymorphism ("SNP"), genotype or haplotype data obtained from the Genotype Database or any SNP, haplotype or haplotype block based on data obtained from the Genotype Database; and
ii. you shall not file any patent applications that contain claims to particular uses of any SNP, genotype or haplotype data obtained from the Genotype Database or any SNP, haplotype or haplotype block based on data obtained from, the Genotype Database, unless such claims do not restrict, or are licensed on such terms that that they do not restrict, the ability of others to use at no cost the Genotype Database or the data that it contains for other purposes; and . . .
See http://www.hapmap.org/cgi-perl/registration
Conclusion
A new “default setting” is needed Nothing is protected unless registration is
approved by public authorities TPM/DRM as exceptions for which
enforcement depends on uses and effects
For more information
Consumer Project on Technology www.cptech.org Tel.: 1 202 332 2670 [email protected]