Abstract
The case study analysed in the last chapter showed that the digital environment established by the Internet and, in particular, by peer-to-peer networks represents a significant threat to providers of copyrighted information. This chapter will analyse an opposite, new case study in which digital technologies such as DRM systems and “Trusted Computing” (hereinafter “TC”) platforms promise to eliminate threats to all unauthorised copying and infringing uses of digital works.
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References
See Nimmer, ‘A Riff on Fair Use in the Digital Millennium Copyright Act’, (148) University of Pennsylvania Law Review 2000, p. 673, at p. 731.
See Mazziotti,‘Utilisations libres des oeuvres protégées dans le contexte numérique européen: d’une regulation publique à une regulation privée’, (54) Petites Affiches 2005, Numéro Spécial (Le clivage acteurs publics/acteurs privés à la lumière du droit européen — Université Paris X-Nanterre, 29 June 2004), p. 12.
Both the U.S. fair use and the UK fair dealing doctrines rest mainly upon a case-by-case analysis. Under U.S. law, even if the review of fair use is firmly guided now by Section 107 of the Copyright Act, as amended by the codification of 1976, it still falls to judges to recognise that the exemption from the copyright scope of certain valuable uses can be understood as „stimulating productive thought and public instruction without excessively diminishing the incentives for creativity [...]“: see Leval, ‘Toward a Fair Use Standard’, in Merges and Ginsburg (eds), Foundations of Intellectual Property, Foundation Press, New York 2004, p. 387, at p. 388. The key role of the judge in the determination of fairness, notwithstanding the legislative codification, was pointed out by the U.S. Supreme Court in Sony Corporation of America v. Universal City Studios, Inc., cit., at pp. 475–476 (‘Although courts have constructed lists of factors to be considered in determining whether a particular use is fair, no fixed criteria have emerged by which determination can be made. Nor did Congress provide definitive rules when it codified the fair use doctrine in the 1976 Act; it simply incorporated a list of factors “to be considered” [...]’). The UK concept of fair dealing is premised upon statutory provisions which confer certain performing rights to classes of users for purposes of research or private study, reporting current events and criticism or review: see the UK Copyright Designs and Patents Act 1988, Sections 29, and 30 (1) and (2). Such concept, thus, is not general and central as the U.S. fair use; it is rather limited to the very definition of the various forms of rights that it confers. Nonetheless, fair dealing looks like fair use in that it is understood in the case law as leaving to judges’ fairness a wide room for an ex post qualitative assessment of all the circumstances characterising a certain use, which makes such analysis mainly “a matter of degree”: see Cornish and Llewelyn, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, op. cit., pp. 440–44.
See U.S. Code, Title 17, §1201, letters from (d) to (k). For an overview of these exemptions see Dusollier, Droit d’auteur et protection des oeuvres, op. cit., pp. 196–201.
See Dusollier, ‘L’utilisation légitime de l’oeuvre:un nouveau sésame pour le bénéfice des exceptions en droit d’auteur?’, Communications — Commerce Electronique, Nov. 2005, p. 17, at pp. 19–20.
Ibidem.
See Commission of the European Communities, Communication from the Commission to the Council, the European Parliament and the European Economic and Social Committee, The Management of Copyright and Related Rights in the Internal Market, COM/2004/0261 final, §1.2.5.
See generally Lessig, Code and Other Laws of Cyberspace, op. cit.
See Commission of the European Communities, The Management of Copyright and Related Rights in the Internal Market, cit., §1.2.5.
Ibidem.
See Anderson, ‘‘Trusted Computing’ and Competition Policy — Issues for Computing Professionals’, 4(3) Upgrade, The European Journal for the Informatics Professional 2003, http://www.upgrade-cepis.org, p. 35, at p. 37.
See The Management of Copyright and Related Rights in the Internal Market, COM/2004/0261 final, §1.2.5.
See Samuelson, ‘DRM and, or, vs. the Law’, (46) Communication of the ACM, April 2003, No.4.
See Mazziotti, ‘Did Apple’s refusal to license [...]’, op. cit., pp. 253–254.
For more information, see ‘Apple brings discord to Hymn’, The Register, 13.01.2005, available at http://www.theregister.co.uk/2005/01/13/apple_breaks_hymn/.
See Mazziotti, ‘Did Apple’s refusal to license [...]’, op. cit., pp. 269–271.
The so-called “indispensability test” was relied on by the ECJ for the first time in Radio Telefis Eireann (RTE) and Independent Television Publications Ltd (ITP) v. Commission, Joined cases C-241/91 and C-242/91 P, 1995, ECR I-743 (hereinafter Magill) and recently re-stated in IMS Health GmbH & Co. OHG v. NDC Health GmbH & Co. KG, Case C-418/01(hereinafter IMS Health). The requirements of the test, as spelt out by the ECJ for the case of refusal to license an intellectual property right by an undertaking holding a dominant position, are the following ones: (i) the undertaking which requests the licence intends to offer a new product or service not offered by the owner of the exclusive right and for which there is a potential consumer demand; (ii) the refusal is not justified by objective considerations; (iii) the refusal is such as to eliminate competition on a market other than the one where the right owner holds the dominant position. The first case in which the ECJ case law considered specifically whether the simple refusal to license an intellectual property right could be abusive under Article 82 was AB Volvo v. Erik Veng (UK) Ltd., C — 238/87, 1988 ECR-6211. In this case, the ECJ held that the mere unilateral refusal by a dominant firm to license its registered design right did not in itself constitute an abuse under Article 82. However, it added (see paragraph 9) that “the exercise of an exclusive right by the proprietor of a registered design in respect of car body panels may be prohibited by [Article 82] if it involves, on the part of an undertaking holding a dominant position, certain abusive conduct such as the arbitrary refusal to supply spare parts to independent repairers, the fixing of prices for spare parts at an unfair level or a decision no longer to produce spare parts for a particular model even though many cars of that model are still in circulation.” This judgment thus laid the foundation for the above-mentioned indispensability test, which played a central role in the subsequent case law including Magill and IMS Health.
Although Magill did not hold that compulsory licensing of intellectual property rights in “exceptional circumstances” must be limited to “two-market” situations, eminent legal scholars have explained that extending the application of the essential facility doctrine to “one market” cases would discourage competition. See, for instance, Temple Lang, ‘Anti-competitive abuses under Article 82 involving intellectual property rights’, paper presented in the Eight Annual EU Competition Law and Policy Workshop, European University Institute, RSCAS (6–7 June 2003), What is an Abuse of a Dominant Position?, downloaded at: http://www.iue.it/RSCAS/Research/Competition/2003/200306COMP-TempleLangsIII.pdf, p. 18. “The essential facility principle applies in two-market situations because a competitor in the downstream market that gains control of a necessary input is not offering a better or a cheaper product in the downstream market, but only getting power to harm consumers in that market by shutting out its competitors. It is inherently procompetitive, on the other hand, to allow competitors to develop or invent their own competitive advantages on the markets in which they are operating. If competitors were required to share competitive advantages that are important enough, competition would be discouraged, not promoted.”
See Rosenblatt, ‘France Approves Modified Copyright Bill’, DRM Watch, 22.06.2006, available at: http://drmwatch.com/legal/article.php/3615596.
See Standeford, ‘France Forges Ahead With Copyright Law’, Intellectual Property Watch, 16.05.2006, available at: http://www.ip-watch.org.
See Hart, ‘Interoperability Information and the Microsoft Decision’, (28) EIPR 2006, p. 361, at p. 365. Article 5(a) of the Microsoft decision required Microsoft to make “Interoperability Information available to any undertaking having an interest in developing and distributing work group operating system products.” According to Article 1(1) of the same decision, interoperability information was defined as “the complete and accurate software specifications for all the Protocols implemented in Windows Work Group Operating Systems and that are used by Windows Work Group Servers to deliver file and print services and group and user administration services.”
See Leveque, ‘Innovation, leveraging and essential facilities: Interoperability licensing in the EU Microsoft case’, available at: http://www.cerna.ensmp.fr/Documents/FL-Ms-WorldCompetition.pdf, pp. 1–25.
See Leveque, ‘Innovation, leveraging and essential facilities’, op. cit., p. 11.
See Varian, ‘Economics of DRM’, Presentation made at the 3rd DRM Conference, Berlin, 13–14 January 2005; Mazziotti, ‘Did Apple’s refusal to license [...]’, op. cit., p. 273.
See Mazziotti, ‘Did Apple’s refusal to license [...]’, Utilisations libres des oeuvres protégées dans le contexte numérique européen: d’une regulation publique à une regulation privée’, (54) Petites Affiches 2005 op. cit., p. 273.
See Commission of the European Communities, Mergers: Microsoft and Time Warner abandon acquisition of control in ContentGuard as Thomson purchases a one third stake, Press Release, IP/05/295, 15 March 2005, available at: http://europa.eu.int/rapid/searchAction.do.
In the language of Stallman, ‘Can you trust your computer?’, available at: http://www.gnu.org/philosophy/can-you-trust.html, the risk of content lock-in by what he defines as “treacherous” (i.e., trusted) computing is explained in the following terms: “Word processors such as Microsoft Word could use treacherous computing when they save your documents, to make sure no competing word processors can read them. Today we must figure out the secrets of Word format by laborious experiments in order to make free word processors read Word documents. If Word encrypts documents using treacherous computing when saving them, the free software community won’t have a chance of developing software to read them — and if we could, such programs might even be forbidden by the Digital Millennium Copyright Act.” See, also, Anderson, ‘‘Trusted Computing’ and Competition Policy’, op. cit., p. 38 (“If the TC/Windows becomes the dominant platform, most developers will make their products available for it first, and for others later (if at all) [...]”).
See Commission of the European Communities, Copyright levy reform, Commission’s Work Programme, available at: http://ec.europa.eu/internal_market/copyright/levy_reform/index_en.htm.
The judgment by the Cour de Cassation was commented upon by Lucas, ‘Mesures techniques de protection — Copie privée — Triple test’, (19) Propriétés intellectuelles, April 2006, p. 179.
See Lucas and Sirinelli, ‘Exceptions de copie privée et mesures techniques de protection’, (16) Propriétés intellectuelles, July 2005, p. 340, at p. 342.
See Lucas and Sirinelli, ‘Exceptions de copie privée et mesures techniques de protection’, op. cit., p. 342.
Ibidem, pp. 343–344.
See Lucas and Sirinelli, ‘Exceptions de copie privée et mesures techniques de protection’, op. cit, p. 343.
Ibidem.
Ibidem.
See Lucas and Sirinelli, ‘Exceptions de copie privée et mesures techniques de protection’, op. cit., pp. 342–343.
See Société Studio Canal et autres c. Perquin et UFC Que Choisir, Cour de Cassation, Judgment of 28 February 2006 (author’s own translation).
Ibidem.
See Dusollier, ‘Le dernier tournant de l’affaire Mulholland Drive, note of Cass. fr., 28 Feb. 2006’, (2) Auteurs & Médias, 2006, p. 177, at p. 180.
See Dusollier, ‘Le dernier tournant de l’affaire Mulholland Drive’, Le dernier tournant de l’affaire Mulholland Drive, note of Cass. fr., 28 Feb. 2006’, (2) Auteurs & Médias, 2006 op. cit., p. 180.
In legal scholarship, flexibility of DRM technology was emphasised by Bechtold, ‘The Present and the Future of Digital Rights Management — Musings on Emerging Legal Problems’, in Becker, Buhse, Gunnewig and Rump (eds), Digital Rights Management — Technological, Economic, Legal and Political Aspects, Springer, Berlin 2003, p. 597, at pp. 598–599, who pointed out that important policy and legal values may be preserved in a DRM-protected environment by altering this technology in a “value-centred” design process.
The expression “user rights management’ is owed to Geiger, ‘Copyright and Free Access to Information: For a Fair Balance of Interests in a Globalised World’, (28) EIPR 2006, p. 366, at p. 372.
See Senftleben, Copyright, Limitations, and the Three-step Test, op. cit., pp. 204–206; Geiger, ‘Copyright and Free Access to Information’, op. cit., pp. 371–372.
See Geiger, ‘Copyright and Free Access to Information’, op. cit., p. 371.
See Geiger, ‘Copyright and Free Access to Information’, op. cit., p. 372.
See Geiger, ‘Copyright and Free Access to Information’, op. cit., p. 371.
See Geiger, ‘Copyright and Free Access to Information’, op. cit., p. 371. An updated version of the German Copyright Act is available at: http://bundesrecht.juris.de/urhg/__53.html.
See Marzano, Diritto d’Autore e Digital Technologies, op. cit., p. 305. An overview of how Italian law implemented Article 6(4), §2 of the Directive, while preserving the possibility of private copying in the presence of technical measures, is provided in the table of Appendix II.
See Marzano, Diritto d’Autore e Digital Technologies, op. cit., pp. 305–306.
Ibidem.
See Geiger, ‘Copyright and Free Access to Information’, op. cit., p. 369.
See Bechtold, ‘The Present and the Future of Digital Rights Management — Musings on Emerging Legal Problems’, Buhse, Gunnewig and Rump (eds), Digital Rights Management — Technological, Economic, Legal and Political Aspects, Springer, Berlin 2003 op. cit., pp. 603–604.
See Bechtold, ‘The Present and the Future of Digital Rights Management’, Buhse, Gunnewig and Rump (eds), Digital Rights Management — Technological, Economic, Legal and Political Aspects, Springer, Berlin 2003 op. cit., p. 604.
Ibidem.
See Mulligan, Han and Burstein, ‘How DRM-Based Content Delivery Systems Disrupt Expectations of “Personal Use”’, available at: http://www.law.berkeley.edu/clinics/samuelson/projects_papers/WPES-RFID-p029-mulligan.pdf.
This view was expressed by Mulligan, Han and Burstein, ‘How DRM-Based Content Delivery Systems Disrupt Expectations of “Personal Use”’, op. cit.; and Burk and Cohen, ‘Fair Use Infrastructure For Rights Management Systems’, (15) Harvard Journal of Law and Technology 2001, p. 41, at pp. 55–58.
See Burk and Cohen, ‘Fair Use Infrastructure’, op. cit., p. 56.
See Burk and Cohen, ‘Fair Use Infrastructure’, op. cit., p. 55.
See § 7.6.2.2., see infra. See, also, Burk and Cohen, ‘Fair Use Infrastructure’, op. cit., p. 58.
See Burk and Cohen, ‘Fair Use Infrastructure’, op. cit., p. 60. The solution of a possible “fair use infrastructure” under EU law will be examined more in depth at §9.2., see infra.
See Lessig, The Future of Ideas, op. cit., p. 257.
See Geiger, ‘Copyright and Free Access to Information’, op. cit., p. 372.
See Samuelson, ‘Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised’, (14) Berkeley Technology Law Journal 1999, p. 519.
See Samuelson, Intellectual Property and the Digital Economy, op. cit., pp. 543–546. As recalled above (at §7.2.4., see supra), these exemptions from the U.S. circumvention prohibitions concern certain acts performed by non-profit libraries, archives and educational institutions and other acts of circumvention performed for purposes of law enforcement, intelligence and other government activities, reverse engineering, encryption research, exceptions regarding minors, and security testing.
See Hart, ‘Interoperability Information and the Microsoft Decision’, op. cit., p. 362.
See Article 6(2) of the InfoSoc Directive. The same argument was raised by Samuelson, ‘Intellectual Property and the Digital Economy’, op. cit., pp. 546–549, with regard to the “anti-device” provisions created under §1201(a)(2) of the U.S. Copyright Act.
The denomination of “Cohen Theorem” was invented by Lessig, The Future of Ideas, op. cit., p. 257.
See Cohen, ‘Copyright and The Jurisprudence of Self-Help’, (13) Berkeley Technology Law Journal 1998, p. 1089. The so-called UCITA proposal was briefly analysed at §5.4.3.1., see supra.
See Cohen, ‘Copyright and The Jurisprudence of Self-Help’, op.cit., pp. 1128–1137.
See Cohen, ‘Copyright and The Jurisprudence of Self-Help’, op. cit., pp. 1132–1133, who argued that “[T]he Intellectual Property Clause denies protection to certain subject matter precisely so that it may remain in the public domain, available to all comers. It follows that where unpatentable know-how and uncopyrightable facts or principles are concerned, the same restrictions that bind Congress also bind the states. Any state adopting Article 2B should recognize that it effectively allows information providers to opt out of those restrictions, thereby frustrating constitutional policy.”
See Cohen, ‘Copyright and The Jurisprudence of Self-Help’, op. cit., p. 1134.
See Cohen, ‘Copyright and The Jurisprudence of Self-Help’, op. cit., pp. 1140–1142.
Ibidem.
See Ginsburg, ‘Copyright Without Walls: Speculations on Literary Property in the Library of the Future’, (42) Representations 1993, p. 53, at pp. 63–64, available at: http://www.representations.org.
See Cohen, ‘Copyright and The Jurisprudence of Self-Help’, op. cit., p. 1141.
See Geiger, ‘Copyright and Free Access to Information’, op. cit., p. 372.
According to the law and economics terminology, contrary to property rules, liability rules establish mere remuneration rights. In the presence of certain circumstances identified by the law (e.g., a productive use of a pre-existing copyrighted work, as in the case mentioned in the main text), liability rules allow users to freely use a work without the copyright owner’s authorisation, provided that they pay him or her remuneration. The foundational legal entitlements framework in the law and economics analysis was established by Calabresi and Melamed, ‘Property Rules, Liability Rules, and Inalienability: One view of the Cathedral’, (85) Harvard Law Review 1972, p. 1089. For an application of this theoretical framework to the field of intellectual property, see Merges, ‘Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations’, (84) California Law Review 1996, p. 1293.
See Burk and Cohen, ‘Fair Use Infrastructure’, op. cit., p. 61.
Ibidem, p. 62.
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(2008). Freedom of use vs. DRM Technology. In: EU Digital Copyright Law and the End-User. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-75985-0_7
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