The Digital Media Project

Source

Philip Merrill

Title

TRU #62 of technological access restrictions

No.

040420merrill10

 

Name:

Philip Merrill

Affiliation/additional information:

Active Contributor, Pasadena, California

Date submitted:

2004/04/20

 

#

Criteria

Description

1.

Name of TRU

Right to technological access restrictions

2.

Summary description of TRU

granted under WCT/WPPT (WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty) giving authors regional protection against tampering devices or software that are designed to defeat content security technology, also prohibits tampering with rights management information, related to TRU communication to the public and TRU reproduction

3.

Use records of TRU

This treatment relies on Paul Goldstein's books Copyright's Highway (GCH) and International Copyright (GIC) as well as Sam Ricketson's WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment (R).

Technological access restrictions and encryption characterized the distribution of proprietary software in the 1990's. By the end of the decade, related considerations of "circumvention" and rights management metadata had worked their way into two WIPO treaties treating the digital realm (see next section below for detail). Because people will adopt security when they think they need it, widespread efforts to implement technological measures existed and the WIPO approach did not need to legalize them but rather criminalized efforts to systematically defeat them, for example for commercial gain. So formally, this is not so much a right as a usage, although it does come with the distinct right to have law enforcement agencies enforce the ban against circumvention businesses.

Note that implicit in this is the chance or risk that fair use could be obliterated. It has long been recognised that electronic commerce could allow contracts to be individually negotiated for everything, thus removing the niches fair use has traditionally occupied.

The DMP workplan expects to help make the "access" model more granular, flexible, extensible and adaptive to the real world of End-Users. This will digitally enable a greatly expanded set of meanings for the word "access".

4.

Nature of TRU

Examples of treaty references to TRU technological access restrictions include WIPO Copyright Treaty Articles 11 and 12 (GIC 2.I.2.3), and WIPO Performances and Phonograms Treaty (for audio, not applicable to literary and artistic works) Articles 18 and 19 (GIC 2.2.3). Goldstein describes it, "The two treaties also aim to buttress copyright owners efforts at self-help through technical measures, such as encryption, to protect their works from infringement." (GIC 5.6 and see 5.4.I.3)

Noteworthy background on the WCT/WPPT's digital approach is given in Paul Goldstein's Copyright's Highway, Chapter 6 "The Answer to the Machine Is in the Machine". This includes a review of John Barlow's historic statement that "information wants to be free" 1995 in Amsterdam, followed shortly by a White Paper prepared for President Clinton called "Report of the Working Group on Intellectual Property Rights, Intellectual Property and the National Information Infrastructure" which coined the historic term "celestial jukebox". This led towards the 1996 proposals of Bruce Lehman at WIPO Geneva and the DMCA. While the DMCA was under review at a U.S. House of Representatives Commerce Committee Hearing, Chairman Thomas Bliley is quoted by Goldstein as having said, "the 'anti-circumvention' provisions of the Administration's bill create entirely new rights for content providers that are wholly divorced from copyright law." It is important to DMP to keep in mind that the "access" model in WCT/WPPT is a result of 1995-1996 thinking.

Goldstein also sums up the historical long view, "Well into the twentieth century, private copying rarely entailed more than hand copying by a researcher of a passage from a text or copying by a teacher of materials into a lesson book—activities that easily came within the exceptions to the reproduction right permitted by Article 9(2) of the Berne Convention. But by the latter part of the century, with the massive proliferation of photocopies, audiotapes, and videotapes, nominally private activities began seriously to undermine the economic interests of copyright owners." (GIC 5.5.I.6.B)

Those unfamiliar with the rich U.S. protest literature against the DMCA might start with the opinions of the Home Recording Rights Coalition (HRRC's DMCA legislative history). Also Lawrence Lessig and EFF.org have been conspicuous.

Goldstein provides an interesting account of how reproduction industries made inroads against TRU reproduction, gaining broad scope of copying because the content industry waited too long to become active, summing this up as a case of "rights delayed are usually rights denied" (GCH Chapter 7, 189). He provides an especially 'touching' quote from Arthur Greenbaum who was part of a major photocopying case decided against the publisher of a medical journal: "here you had cases that were brought too late, and the industries had been created based on doing things in a certain way. And for the Supreme Court to say, 'Well, that's copyright infringement,' would have wiped out the industry." (GCH Chapter 3, 101)

5.

Benefits of TRU

Right-holder

6.

Possible digital support

Granularity, flexibility and extensibility should be the watchwords of strong DRM systems restricting access, in order to take advantage of human, social and economic opportunities as soon as possible after they open up. Although the workplan encompasses what is required for the next several years, an ongoing effort is no doubt required to support the watchwords through the generations. This should be done keeping in mind that because of the restrictive nature of strong DRM, the technological support for sophisticated access rules is compellingly vital in order to enable social electronic transactions and interactions to take place. The potential wealth engine for this could be shaped to benefit the cultural, non-profit component, and of course real people will be raising kids in this DM culture, providing the artists, authors and creators of tomorrow. A continued effort at standardisation is likely to be essential.

It is worth noting Martin Springer's helpful reference to the definition of "Access Control" as "Ensuring that users access only those resources and services that they are entitled to access and that qualified users are not denied access to services that they legitimately expect to receive". In my opinion, this use of the word "access" clearly has value for Computer Security definitions, but I believe the word is used much more broadly within the international norms supporting TRU technological access restrictions.

It is worth asking whether work presently being done with fingerprinting content and the use of filtering on file-sharing networks might have some relevance, at least insofar as a "card catalogue" of DM options available might readily provide a degree of support for this approach.

A nice summary of the task of digital support is provided by the following conference statement from the lead-up to the WCT, "these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment" (R 62).

7.

Requirements

Ref. "Access" section in Review of GA01 RQs

8.

References