The requirement for anti-circumvention laws was globalised in 1996 with the creation of the WIPO Copyright Treaty.
In the United States, the Digital Millennium Copyright Act (“DMCA”)has implemented the treaty provisions regarding the circumvention of some technological barriers to copying intellectual property. Section 103 (17 U.S.C Sec. 1201(a)(1)) of the DMCA states:
- No person shall circumvent a technological measure that effectively controls access to a work protected under this title.
The Act defines what it means in Section 1201(a)(3):
- (3) As used in this subsection –
- (A) to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise, to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and
- (B) a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
Thus, if there is some “technological measure that effectively controls access to a work”, it is illegal to circumvent that measure. However, Section 1201 creates several exceptions to this rule, and the Library of Congress is empowered to create additional exceptions.
The Act clarified existing law rather than creating new or changing existing substantive rights or defenses, including fair use. Section 1201(c) provides:
- (c) Other Rights, Etc., Not Affected. –
- (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.
- (2) Nothing in this section shall enlarge or diminish vicarious or contributory liability for copyright infringement in connection with any technology, product, service, device, component, or part thereof.
- (3) Nothing in this section shall require that the design of, or design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as such part or component, or the product in which such part or component is integrated, does not otherwise fall within the prohibitions of subsection (a)(2) or (b)(1).
- (4) Nothing in this section shall enlarge or diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products.
Distribution Of Circumvention Tools
Distribution of circumvention tools is likewise prohibited, with the same or similar exceptions. Section 1201(a)(2) provides:
- (2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—
- (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
- (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
- (C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.
Reverse Engineering And Circumvention
Sec. 103(f) of the DMCA (12 U.S.C. Sec. 1201 (f)) says that if you legally obtain a program that is protected, you are allowed to reverse-engineer and circumvent the protection to achieve the ability the interoperability of computer programs (i.e., the ability to exchange and make use of information). The section states:
- (f) Reverse Engineering.—
- (1) Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.
- (2) Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title.
- (3) The information acquired through the acts permitted under paragraph (1), and the means permitted under paragraph (2), may be made available to others if the person referred to in paragraph (1) or (2), as the case may be, provides such information or means solely for the purpose of enabling interoperability of an independently created computer program with other programs, and to the extent that doing so does not constitute infringement under this title or violate applicable law other than this section.
- (4) For purposes of this subsection, the term “interoperability” means the ability of computer programs to exchange information, and of such programs mutually to use the information which has been exchanged.
Anti-Circumvention Rules Of The European Union
The following anti-circumventing rules were implemented in European Directive 2001/29/EC of the European Parliament and of the council of May 22 2001, on the harmonisation of certain aspects of copyright and related rights in the information society.
This directive states in article 6, ‘Obligations as to technological measures’:
- 1. Member States shall provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.
- 2. Member States shall provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which:
- (a) are promoted, advertised or marketed for the purpose of circumvention of, or
- (b) have only a limited commercially significant purpose or use other than to circumvent, or
- (c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of, any effective technological measures.
- 3. For the purposes of this Directive, the expression ‘technological measures’ means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject matter, which are not authorised by the rightholder of any copyright or any right related to copyright as provided for by law or the sui generis right provided for in Chapter III of Directive 96/9/EC. Technological measures shall be deemed ‘effective’ where the use of a protected work or other subject matter is controlled by the rightholders through application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject-matter or a copy control mechanism, which achieves the protection objective.
- 4. Notwithstanding the legal protection provided for in paragraph 1, in the absence of voluntary measures taken by rightholders, including agreements between rightholders and other parties concerned, Member States shall take appropriate measures to ensure that rightholders make available to the beneficiary of an exception or limitation provided for in national law in accordance with Article 5(2)(a), (2)(c), (2)(d), (2)(e), (3)(a), (3)(b) or (3)(e) the means of benefiting from that exception or limitation, to the extent necessary to benefit from that exception or limitation and where that beneficiary has legal access to the protected work or subject-matter concerned. (…)