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WIPOInformative Session on Limitations and

Exceptions

Geneva November 3rd 2008

Automated Rights Management &

Copyright Limitations and Exceptions

byNic Garnett

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Disclaimer

All the ideas and opinions expressed in the Study are those of the writer or of the persons identified in the Study. They do not nor are they intended to represent the views of WIPO. Likewise, any errors, omissions or other shortcomings in the Study are those exclusively of the writer.

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The General Objective Attempts to provide a neutral and balanced

introduction to a controversial area of inquiry; Seeks to contribute to a better understanding

of the relationship between traditional methods of rights management and technology based systems;

Aims to enhance knowledge of the digital environment as it impacts the development of copyright law.

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Automated Rights Management

Technical Protection Measures:

Copy Protection Access Control Digital Rights

Management

Encryption

Rights Management Information Systems:

Identifiers (e.g. DOI) Tags Watermarks

Fingerprinting

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Central Issues

ARM: essential for protection Copyright: limits to protection Certain ARM protect beyond limits ARM Technologies v. Exceptions Protected and Unprotected content

channels are incompatible

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The Logic of the Study

For DRM technology, an exception is a rule;

2 options for implementation:• Turn off DRM• Implement with DRM

Turning off the DRM may create unacceptable risk to rights holders

Use DRM to implement the exception

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Other Issues

Complexity of the digital environment

Changing nature of activities Matrix of exceptions Proprietary ARM technologies Impact of the “Three Step Test”

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Focus of Study

Digital Rights Management technology Fields of Application ~ Exceptions relating to:

• Access by Visually Impaired People• Distance Learning

Five Territories, Five Copyright Laws• Australia• South Korea• Spain• United Kingdom• United Sates of America

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Technology Solutions

Copy Protection(SCMS; CSS etc.)

TPM

Access Control(STB, Password Protected Website)

Digital Rights Management(Windows Rights Management, FairPlay etc.)

TechnologySolutions

RMI

Content Blocking & Filtering(Watermarking, fingerprinting)

Content Usage Metering(Watermarking, fingerprinting, embedded codes)

Restricted access & usage

Aggregated Licensing

DiscreetLicensing

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Field I: Accessibility

Technology provides many accessibility tools: screen readers, etc.

Certain kinds of ARM technologies applied in certain ways obstruct access

Some copyright laws contemplate the removal of obstructions but the method of implementation is unclear

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Field II: Distance Learning

Education, including distance learning, has its own vast ecosystem

Technology facilitates the creation of virtual classrooms

Models are emerging in which ARM technologies are important enabler

Emerging legislation: US TEACH Act 2002

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Interface of Law & Technology: I

The legal definition of fair use is, by computer scientists’ standards, maddeningly vague. No enumeration of fair uses is provided. There is not even a precise algorithm for deciding whether a particular use is fair. Instead, the law says that judges should make case-by-case decisions based on four factors: the nature of the use; the nature of the original work; the portion of the original work used; and the effect of the use on the market. The law does not say exactly how these factors should be evaluated or even how the factors should be weighted against one another.

To a computer scientist, such imprecision is a bug. Professor Ed Felton

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Interface of Law & Technology: II

If DRM systems can’t make the right judgment in every case, perhaps they can get some special cases right. Perhaps they can allow backup copies or personal use within the home. Perhaps these special cases are simple enough that they can be reasonably approximated.

But even these seemingly simple cases are more difficult than they might initially seem. A backup, for instance, is most useful if it can be restored on a different machine (in case the original machine breaks). But backup cannot simply provide a mechanism for moving a file from one machine to another; such a general file transfer facility is a ready loophole for infringers. The solution may involve centralized record keeping, ensuring a backup is not restored too frequently or in too many places, though such record keeping raises privacy issues.

The point is not that handling backup is impossible but that it is surprisingly challenging. To date there has been no satisfactory solution to these problems, though it may be because most of the development effort has been (misdirected toward the effort to build all-encompassing DRM systems. There may be hope, however, for a bottom-up approach that tries to handle a few cases well.

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Interface of Law & Technology: III

ARM Technologies v. Exceptions

ARM Technologies are managed systems

Central authority +Trusted Intermediary

Existing institutions = Trusted Intermediaries

Trusted Intermediaries manage secure networks

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Working Examples

Accessibility• Bookshare• Braillenet• RNIB

Education• TEACH Act• Credu

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Update

An end to DRM? The growing importance of other ARM

technologies Generalization of DRM Increasing interoperability Growing sophistication of DRM

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Conclusions

ARM Technologies, including DRM, will become increasingly prevalent

ARM Technologies can provide the key to the fair implementation of exceptions, particularly where the exceptions relate to the needs and functions of particular communities or institutions

Work on keeping copyright law responsive to technological challenges should take account of the capabilities of ARM Technologies

Working deployments of ARM Technologies should be studied with a view to developing best practice statements and reference models for more generalized use