Some Reflections on Copyright Management Systems and Laws Designed to Protect Them

Copyright management systems (CMS)—technologies that enable copyright owners to regulate reliably and charge automatically for access to digital works—are the wave of the very near future. The advent of digital networks, which make copying and distribution of digital content quick, easy, and undetectable, has provided the impetus for CMS research and development. CMS are premised on the concept of trusted systems or secure digital envelopes that protect copyrighted content and allow access and subsequent copying only to the extent authorized by the copyright owner. Software developers are testing prototype systems designed to detect, prevent, count, and levy precise charges for uses that range from downloading to excerpting to simply viewing or listening to digital works. In a few years, for example, an individual seeking online access to a collection of short fiction might be greeted with a menu of options including: Open and view short story A — $0.50, or$0.40 for students doing assigned reading (verified based on roster submitted by instructor) Open and view short story B (by a more popular author) — $0.80, or$0.70 for students Download short story A (encrypted and copy-protected) — $1.35 Download short story B —$2.25 Download entire collection — $15.00 Extract excerpt from short story A —$0.03 per 50 words Extract excerpt from short story B — $0.06 per 50 words CMS also loom large on the legislative horizon. Copyright owners have argued that technological protection alone will not deter unauthorized copying unless the law provides penalties for circumventing the technology. Although a bill to protect CMS against tampering failed to reach a vote in Congress last year, the World Intellectual Property Organization\u27s recent adoption of treaty provisions requiring protection means that Congress must revisit the question soon. Part II describes these developments. The seemingly inexorable trend toward a digital CMS regime raises two questions, which the author addresses in parts III and IV, respectively. First, broadly drawn protection for CMS has the potential to proscribe technologies that have indisputably lawful uses and also to foreclose, as a practical matter, uses of copyrighted works that copyright law expressly permits. How may protection for CMS be drafted to avoid disrupting the current copyright balance? Second, and equally fundamental, CMS may enable both pervasive monitoring of individual reading activity and comprehensive private legislation designed to augment—and possibly alter beyond recognition—the default rules that define and delimit copyright owners\u27 rights. Given the unprecedented capabilities of these technologies, is it also desirable to set limits on their reach

O equilíbrio do poder na regulação da internet: critérios e conseqüências

Nos últimos anos, o advento de formas digitais de comunicação trouxe uma mudança em nossas vidas, repercutindo em diversas áreas da atuação humana como o aprendizado, trabalho, lazer, comércio e mesmo a cidadania. Nosso estudo mostrará que esta evolução do nível de comunicação tem relação com outras mudanças que já aconteciam em outros campos, como a própria vida e a manipulação da matéria, caracterizando um processo sistêmico de alta interação. Essas mudanças são refletidas nas relações de poder dentro da coletividade. Os indivíduos ganham poderes não previstos pelos legisladores. A problemática está localizada no uso destes poderes e o papel que o Estado deve exercer sobre ele. Analisaremos casos da experiência americana, nos quais diferentes abordagens foram tomadas, com diferentes resultados. A regulação obtida é dada através da colaboração entre as forças de mercado, científica e governamental, e não apenas desta última isoladamente. Os problemas apontados não intentam apoiar a corrente libertária, anárquica, de grande força na comunidade online. Ao contrário. É necessário encontrar a técnica ideal para a nova organização de poderes, identificar quais fatores estão envolvidos para que o governo possa corresponder às expectativas de um Estado democrático. Para isso, estudaremos as formas de poder e como o ciberespaço é por elas influenciado. Sendo o objetivo deste estudo discutir as mudanças nas leis brasileiras, faz-se necessário verificar o papel do direito no processo de regulação e saber quando e como aplicá-lo no novo contexto.In the last years, the arrival of digital forms of communication has brought a transformation in our lives, reflecting in different areas of human interaction, such as learning, working, leisure, trade and even citizenship experiences. Our research will demonstrate that such evolution in the communication experience has a strong relation to other changes already in course in fields such as live itself and the manipulation of matter, characterizing a systemic process of high interaction. Such modifications are reflected in power relations inside the society. Individuals acquire new powers, unforeseen by the legislators. The problem is located in the due use of these powers and the role government should play over it. North American cases, where different approaches were taken, will be analyzed, as well as their results. The regulation obtained is a result not only from the market forces, but also from scientific and governmental ones. The problems identified do not intend to support the libertarian doctrine, which has a strong popularity in online communities. By the contrary. It is necessary to find the ideal technique to the new organization of power structures, identify which forces are involved so that government is able to correspond to the expectations of a democratic state. To do so, the existing forms of power and how cyberspace is influenced by them will be analyzed. Since the purpose of this article is to discuss how modifications in Brazilian laws should be directed, it is necessary to verify the role of Law in the regulation process and to know when and how to be applied in the new context

Copyright and the Jurisprudence of Self-Help

The proposed draft of Article 2B grants broad rights to enforce electronically contract provisions governing access to and use of digital works. Purveyors of digital works may engage in electronic self-help following breach of contract, and may also elect to foreclose unauthorized uses ex ante, via electronic “regulation of performance.” This Article examines these provisions in light of existing law authorizing self-help repossession of tangible chattels, leading academic justifications for self-help repossession, and federal copyright law and policy. It concludes that the provisions authorize an unprecedented degree of intrusion into private homes and offices, that they lack a sound theoretical basis, and that their adoption would threaten constitutionally-mandated limits on copyright protection. It concludes, further, that the law should afford users of digital works rights of electronic self-help where necessary to preserve the copyright balance

A Right to Read Anonymously: A Closer Look at Copyright Management in Cyberspace

It has become commonplace to say that we have entered the age of information. The words conjure up images of a reader’s paradise—an era of limitless access to information resources and unlimited interpersonal communication. In truth, however, the new information age is turning out to be as much an age of information about readers as an age of information for readers. The same technologies that have made vast amounts of information accessible in digital form are enabling information providers to amass an unprecedented wealth of data about who their customers are and what they like to read. In the new age of digitally transmitted information, the simple, formerly anonymous acts of reading, listening, and viewing—scanning an advertisement or a short news item, browsing through an online novel or a collection of video clips—can be made to speak volumes, including, quite possibly, information that the reader would prefer not to share. This Article focuses specifically on digital monitoring of individual reading habits for purposes of so-called “copyright management” in cyberspace, and evaluates the import of this monitoring for traditional notions of freedom of thought and expression. A fundamental assumption underlying our discourse about the activities of reading, thinking, and speech is that individuals in our society are guaranteed the freedom to form their thoughts and opinions in privacy, free from intrusive oversight by governmental or private entities. The new copyright management technologies force us to examine anew the sources and extent of that freedom. Part I of this Article describes the various copyright management technologies that are being developed to enable copyright owners to monitor readers’ activities in cyberspace and the uses they make of reading materials acquired there. Part II provides an overview of proposed federal legislation designed to reinforce copyright owners’ power unilaterally to institute intrusive copyright management systems. Part III considers, and rejects, the possibility that the impending digital copyright management regime constitutes no more than legitimate private ordering regarding the terms and conditions of access to copyrighted works. Part IV discusses the sources and justifications for an individual right to read anonymously, and argues that reading is so intimately connected with speech and freedom of thought that the First Amendment should be understood to guarantee such a right. Part V suggests that proposed federal protection for digital copyright management technologies may be unconstitutional to the extent that it penalizes individuals who seek only to exercise their rights to read anonymously, or to enable others to do so. Finally, Part VI argues that rather than seeking to enshrine a set of practices designed to negate reader anonymity, Congress should, instead, adopt comprehensive legislation designed to shield individual reading habits from scrutiny

Intellectual Property Rights in Data?

The international intellectual property system founded on the Paris and Berne Conventions in the late nineteenth century has been dominated by the patent and copyright paradigms, which articulate the legal protection of technological inventions and of literary and artistic works, respectively. Although this patent-copyright dichotomy was never as strictly observed abroad as in the United States, it nonetheless charted a relatively clear theoretical line of demarcation between legal incentives to create and the public interest in free competition. Any publicly disclosed technologies or information products that failed to meet the eligibility requirements of the domestic patent and copyright laws became public domain matter that anyone could freely appropriate. By the end of the twentieth century, in contrast, this line of demarcation had empirically broken down. The developed market economies, including the United States, enacted numerous special purpose intellectual property laws to protect industrial designs, plant varieties, integrated circuit designs, and other matter that typically failed to meet the eligibility requirements of either the patent or copyright models. The latest, and arguably most deviant, examples of this trend toward sui generis intellectual property rights are the European - and United States-sponsored initiatives in both national and international forums calling for creation of a new form of legal protection for the contents of databases. These initiatives aim to rescue database producers from the threat of market-destructive appropriations by free-riding competitors who contributed nothing to the costs of collecting or distributing the relevant data

International copyright and the challenges of digital technology

PhDDigital technology is challenging traditional copyright principles. Despite suggestions from a number of commentators that copyright cannot survive the challenge, this thesis aims to demonstrate that copyright can evolve and adapt rather than face elimination. This hypothesis is tested and illustrated by means of an examination of law in conjunction with technology, and by means of concrete examples. Analysis of the author's position in the face of digital technology requires firstly, an investigation of the way in which the existence and exercise of the author's copyright itself is affected by such technology, and secondly, an examination of how the author's standing in relation to dissemination of works generally is concerned (e.g. as regards freedom of speech). It is with the first of these aspects that this thesis is mainly concerned, although, for the sake of a more comprehensive view, some considerations on the second aspect are also advanced. This thesis examines challenges raised in the copyright field by digital technology and the consequential problems in relation to classification of subject matter, identification of authors, fixation and reproduction, the criterion of originality, the meaning of publication, recognition of moral rights, recognition of economic rights, exceptions and limitations, liability of service providers, authenticity of works, infringement, feasibility of enforcement and conflict of laws. Broader issues relating to Government and private control of access to the new media are also analysed. The analysis is focused on copyright subsistence as well as infringement. Furthermore, both the legal and the technological aspects are considered (with the aid of a comprehensive glossary of technological terms). The approach is one of law and technology in equal measure. In the context of these problems there follows a critical examination and comparison of the main national systems, the main international instruments, and the main regional instruments. This systematic survey seeks to encapsulate the work of learned authors in a concise manner, leading to certain proposals. The approach is one of criticism and selection of feasible and practical solutions. Nearly all elements of the proposed solutions exist already, albeit in a fragmented way. These solutions are based on law and on technology, and are formulated to apply in both the analogue and digital worlds. The thesis concludes that for an effective solution of the problems raised by digital technology, an international standard for copyright protection must be adopted, one apposite for the digital world. The thesis puts forward detailed suggestions towards the adoption of an International Digital Copyright Protection System, in the form of definitional, obligational, conflict of laws and technological proposals, whose common denominator is the will to find new answers for the digital challenges. The definitional proposals will clarify conceptual questions arising from the digital revolution. The obligational proposals will regulate the issue of exemptions from liability and duties of Internet service providers. The conflict of laws proposals will address the problems arising in connection with jurisdiction and applicable law on the Internet. The technological proposals will give practical effect to the system by focusing on deterrence and tracing of copyright infringement

Copyright and the Public Interest

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Copyright and the internet : closing the gates on the public domain

Can copyright survive in the digital era? Indeed, should copyright survive in the digital era? The development of information technologies in general, and the Internet in particular has held out the potential of unrivalled exchange of information, ideas and creative works. Perfect digital copies of all manner of works can, at a keystroke, be sent around the world to be received, enjoyed and used by millions. But that same potential has brought a threat, notably for the entertainment industries (intermediaries) whose livelihood depends on receiving a financial reward for making their works available to consumers. How then should the promise of such digital dissemination be reconciled with the threat for these intermediaries fearful of seeing their content distributed beyond their control? The answer has been to develop a raft of measures giving these intermediaries the power to control both access to and use of the underlying work. But what of the law of copyright? For hundreds of years that law has ensured that those same intermediaries can control dissemination of these works, but only to a limited extent. The borders on that power have been found in the limits that have been ascribed to the property right in a creative work. Thus intermediaries cannot exert control over onward dissemination of a tangible object containing the work, at least within prescribed territories and regions; the length of time for which protection can be claimed is limited; ideas contained within a work are left free; a work must be original before it attracts protection; copyright in a work is infringed only if a substantial part is copied, and a substantial part can be lawfully copied within defined circumstances. Together these parts beyond ownership are termed as being in the public domain. The precise boundaries of this public domain might be difficult to describe, but the intent within the overall framework is clear. It is not only the interests of the current author and the intermediary that are served by the law of copyright. The public interest is also satisfied in that a variety of new works can be created for consumption, advancement of knowledge and information. Critically, the public domain is essential in this process. No works are created without some reference to, and taking from, what pre-exists. This public domain thus ensures that would-be authors have a variety of sources on which to draw in creating anew. It is this element of the copyright framework that appears to have been ignored in the recent legislative process. This study traces the legislative efforts made affecting copyright in the digital era and highlight8 the measures taken to satisfy the demands of the intermediaries. It goes on to consider the public domain, what it is, what it is used for in the non-digitised world, and how it is and will be affected by recent developments. It will be argued that conditions for both access to and use of the public domain alter dramatically, critically to the detriment of the would-be author. Given the 'new' legislative framework seems set to govern this area in the foreseeable future, the discussion looks at ways in which the existence of the public domain might be encouraged for the benefit of would-be authors. Copyright should survive in the digital era, and many would argue that it does. But sadly it would appear that one facet of the balance that has been nurtured by the law, the public domain, will be left to be developed by self regulatory mechanisms, rather than being guarded by the legislature