Digital Rights Management (DRM)

Report
Sub-regional Seminar on
the Protection of Computer Software and Databases
organized by
the World Intellectual Property Organization (WIPO),
the Romanian Copyright Office (ORDA), and
the State Office for Inventions and Trademarks (OSIM)
Mangalia, Romania, August 25 to 27, 2010
TOPIC 12:DIGITAL RIGHTS MANAGEMENT (DRM) AND ITS
CO-EXISTENCE WITH COPYRIGHT EXCEPTIONS
Dr. Mihály Ficsor, Chairman
Central and Eastern European Copyright Alliance (CEECA)
Budapest
Outline
1.
2.
3.
4.
DRM = TPMs and (or) RMI
The WIPO „Internet Treaties” on TPMs and RMI
No new „access right”
Implementation in the EU Information Society (Copyright)
Directive
5. Implementation in the C.I.S. Model Copyright Law
6. TPMs and exceptions
M. Ficsor, Mangalia, August 25-27, 2010
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DRM = TPMs and (or) RMI
The expression „digital rights management” (DRM) has been introduced and
used in professional (legal, technical) jargon, in the press and the media. However,
it does not appear in the texts of the provisions of the relevant international
treaties (the WIPO Copyright Treaty (WCT) and the WIPO Performances and
Phonograms Treaty (WPPT)) in the EU Directives (in particular, in the Information
Society (Copyright) Directive) and in the national laws implementing them .
„Technological [protection] measures „(TPMs) and „rights management
information” (RMI) are the relevant expressions used in the international
treaties, the EU Directives and national laws.
„DRM” usually means the combination of TPMs and RMI, although in the
professional and journalistic discourse it is frequently used also as a reference just
to TPMs, and sometimes just to RMI.
M. Ficsor, Mangalia, August 25-27, 2010
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No new „access right”
Contrary to certain allegations, no new „access right” emerges as a
result of application and protection of TPMs and RMI.
Access to works by users have always been controlled; without it,
the copyright system simply could not have existed. In book shops,
record shops, one has had to pay for copies to get full access; in
libraries ,certain rules have had to be respected in order to receive
copies in loan; in case of theatrical presentations, concerts, etc.,
buying tickets or other arrangements have been needed to the
members of the public for getting access.
M. Ficsor, Mangalia, August 25-27, 2010
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No new „access right”
Even the beneficiaries of exceptions have not been able to get
access to copies without any conditions whatsoever. Walking into a
bookshop, taking a book from the shelves and walking out without
payment referring to the „right” of free quotation?
 In the digital networked environment, what used to be (i) going to
the video shop, (ii) buying a video recording on a cassette; (iii)
bringing it home, (iv) putting into the player, (v) sitting down and (vi)
pressing the „play” button – has been replaced by a simple click on
the keyboard. The use of TPMs („DRM”) is the normal way of
making access conditional to the payment of a reasonable price or
some other arrangement.
M. Ficsor, Mangalia, August 25-27, 2010
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The WIPO „Internet Treaties” on TPMs and RMI
General characterization of the WIPO „Internet Treaties;” adoption,
enetering into force and the raticifaction/accession process
The WIPO „Internet Treaties” adopted in Geneva on December 21, 1996:
 the WIPO Copyright Treaty (WCT)
entered into force on March 6, 2002
number of Contracting Parties on August 20, 2010: 88
 the WIPO Performances and Phonograms Treaty (WPPT)
entered into force on May 20, 2002
number of Contracting Parties on August 20, 2010: 86.
 The Treaties offer overall regulation on copyright and two categories of
related rights, but their main objective is to adapt those rights to the digital,
networked environment, to the requirements of the information society.
M. Ficsor, Mangalia, August 25-27, 2010
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The WIPO „Internet Treaties” on TPMs and RMI
General characterization of the WIPO „Internet Treaties;” „transition countries”
party to the Treaties
Central and Eastern European countries and the Baltic States that are also
members of the EU: all of them are party to the Treaties; that is: Bulgaria, Czech
Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia.
Countries in the West-Balkans: all of them are party to the Treaties: Albania, Bosnia
and Herzegovina Croatia, Montenegro, Serbia and the former Yugoslav Republic of
Macedonia.
New independent countries in Eastern Europe that used to be republics of the
former Soviet Union: all of them are party to the Treaties: Belarus, Moldova, the
Russian Federation and Ukraine.
Countries of the Caucasus region: all of them are party to the Treaties: Armenia,
Azerbaijan and Georgia.
Central Asian countries: Three of the five countries are party: Kazakhstan,
Kyrgyzstan and Tajikistan (however, the latter only to the WCT); the other two –
Turkmenistan and Uzbekistan – are not party yet.
M. Ficsor, Mangalia, August 25-27, 2010
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The WIPO „Internet Treaties” on TPMs and RMI
General characterization of the WIPO „Internet Treaties; historical and political
background
No revision of the Berne Convention since the Stockholm (1967)-Paris (1971) twin
revisions, in spite of the ever more numerous challenges raised by new technologies.
 Parallel preparatory work in the Uruguay Round GATT negotiations and in WIPO,
with slowing down the latter in order to avoid interference with the former.
 April 1994: adoption of the WCT package along with the TRIPS Agreement; the
latter only bringing about certain modest changes in the substantive copyright and
related rights norms.
 Between the end of 1992 (the de facto closure of the TRIPS negotiations) and 1994:
spectacular development and growing use of the Internet.
 Serious and urgent questions raised for the international copyright and related
rights systems as a consequence of this.
 No chance for reopening the negotiations in WCT; acceleration of the preparatory
work in WIPO Committees leading to the adoption of the two “Internet Treaties”
within what may have seemed to be a very short time.
M. Ficsor, Mangalia, August 25-27, 2010
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The WIPO „Internet Treaties” on TPMs and RMI
General characterization of the WIPO „Internet Treaties;” main features
Legally: no revisions of the Berne Convention and the Rome Convention, but
“special agreements” (under Berne Article 20 and Rome Article 22).
 Concerning the level of protection: „Berne & Rome plus TRIPS plus;” that is,
what is provided in the Berne and Rome Convention plus what is provided in the
substantive provisions of the TRIPS Agreement plus what is still included on the
basis of the “digital agenda” of the preparatory work.
 From the viewpoint of economic and legislative burdens: no real extension of
the scope of protection; clarification of the application of the existing norms and,
in certain aspects, their adaptation to the new environment, and new means of
exercise and enforcement of rights.
 Politically: the Treaties are well-balanced, flexible and duly take into account
the interests of the different groups of countries and stakeholders.
M. Ficsor, Mangalia, August 25-27, 2010
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The WIPO „Internet Treaties” on TPMs and RMI
General characterization of the WIPO „Internet Treaties;” the so-called „Berne/Rome
plus TRIPS plus” elements included in the WIPO Treaties on the basis of the „digital
agenda:”
 clarification of the application of the right of reproduction in the digital
environment, in particular as regards the storage of works, performances and
phonograms in electronic memories;
 recognition/clarification of the existence – as an inevitable corollary to the right or
reproduction – of an exclusive right of first distribution of copies of works, fixed
performances and phonograms;
 through a combination and adaptation of existing rights, recognition of the
exclusive right of (interactive) making available of works, fixed performances and
phonograms;
 clarification of the application of exceptions and limitations in the new
environment;
 obligations regarding the protection of technological measures and rights
management information, as means of exercising and enforcing rights.
M. Ficsor, Mangalia, August 25-27, 2010
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The WIPO „Internet Treaties” on TPMs and RMI
Provisions of the „Internet Treaties” on TPMs and RMI
Agreement at the 1996 Diplomatic Conference: there was a need for making it
possible the application of, and adequately protecting, technological measures
(TPMs, such as encryption systems) and rights management information (RMI, such as
digital identifiers) in order that copyright and related rights might be exercised and
enforced in the digital, networked environment.
 WCT Article 11 and WPPT Article 18:
„Contracting Parties shall provide adequate legal protection and effective legal
remedies against the circumvention of effective technological measures that are used
by [authors][performers or producers of phonograms] in connection with the exercise
of their rights under [this Treaty or the Berne Convention][this Treaty] and that restrict
acts, in respect of their [works][performances or phonograms] , which are not
authorized by [the [authors][the performers or the producers of phonograms]
concerned or permitted by law.” (Emphasis added.)
M. Ficsor, Mangalia, August 25-27, 2010
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The WIPO „Internet Treaties” on TPMs and RMI
Provisions of the „Internet Treaties” on TPMs and RMI
WCT Article 12 and WPPT Article 19:
„(1) Contracting Parties shall provide adequate and effective legal remedies against
any person knowingly performing any of the following acts knowing, or with respect
to civil remedies having reasonable grounds to know, that it will induce, enable,
facilitate or conceal an infringement of any right covered by [this Treaty or the Berne
Convention][this Treaty]:
(i)to remove or alter any electronic rights management information without
authority;
(ii) to distribute, import for distribution, broadcast or communicate to the
public, without authority, [works] or copies of [works][fixed performances or
phonograms] knowing that electronic rights management information has been
removed or altered without authority. (Emphasis added; continues.)
M. Ficsor, Mangalia, August 25-27, 2010
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The WIPO „Internet Treaties” on TPMs and RMI
Provisions of the „Internet Treaties” on TPMs and RMI
WCT Article 12 and WPPT Article 19 (contd.):
„(2) As used in this Article, ‘rights management information’ means information
which identifies the [work, the author of the work][the performer, the performance
of the performer, the producer of the phonogram, the phonogram, the owner of any
right in the [work][performance or phonogram], or information about the terms
and conditions of use of the [work][performance or phonogram], and any numbers
or codes that represents such information, when any of these items of information
is attached to a copy of a [work][performance or phonogram] or appears in
connection with the communication of [a work][a fixed performance or a
phonogram] to the public.” (Emphasis added.)
M. Ficsor, Mangalia, August 25-27, 2010
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Implementation in the EU Information Society
(Copyright) Directive
 The EU Information Society (Copyright) Directive of 2001 (2001/29/EC) is based on
the interpretation of the relevant norms of the WCT and the WPPT that the
requirement of adequate protection of TPMs can only be duly fulfilled if the
protection extends for both „access-control” and „copy-control” TPMs and against
both acts of circumvention and „preparatory acts.”
This follows not only from the text of the treaty provisions but it is also confirmed
by the documents of the negotiating history. The treaty language proposals covered
all kinds of TPMs (not only „access controls” or only „copy controls”) and also
„preparatory acts” (unauthorized manufacturing and distributing TPM-defeating
devices, such as decoders).
 Since actual circumvention of TPMs usually takes place in places where detection
and counter-measures are unrealistic, the obligation to grant „adequate protection”
for TPMs may only be fulfilled in the stage of „preparatory acts.”
 However, it was stressed at the 1996 Diplomatic Conference by some delegations
that TPM protection should not be an obstacle to benefit from those copyright
exceptions which are important from the viewpoint of public interests.
M. Ficsor, Mangalia, August 25-27, 2010
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Implementation in the EU Information Society
(Copyright) Directive
Basic TPM provisions of the Directive
Article 6(1) and (2)
„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.”
(Emphasis added.)
M. Ficsor, Mangalia, August 25-27, 2010
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Implementation in the EU Information Society
(Copyright) Directive
Basic RMI provisions of the Directive
Article 7
„1. Member States shall provide for adequate legal protection against any person
knowingly performing without authority any of the following acts:
(a) the removal or alteration of any electronic rights-management information;
(b) the distribution, importation for distribution, broadcasting, communication or
making available to the public of works or other subject-matter protected under
this Directive or under Chapter III of Directive 96/9/EC from which electronic rightsmanagement information has been removed or altered without authority, if such
person knows, or has reasonable grounds to know, that by so doing he is inducing,
enabling, facilitating or concealing an infringement of any copyright or any rights
related to copyright as provided by law, or of the sui generis right provided for in
Chapter III of Directive 96/9/EC.” (Emphasis added.)
M. Ficsor, Mangalia, August 25-27, 2010
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Implementation in the
C.I.S. Model Copyright Law
The „C.I.S. Model Copyright Law” (Model Copyright Law of November 18, 2005, of
the Interparliamentary Assembly of States-Participants of the Commonwealth of
Independent States) on TPMs.
The provisions of the Model Law are based also on the interpretation of the
WIPO „Internet Treaties” that all kinds of TPMs (both „access controls” and
„copy controls”) and both actual acts of circumvention and „preparatory acts”
must be covered:
„Article 46 - Статья 46. Ответственность за обход технических средств
защиты авторских и смежных прав и за устранение или изменение
информации об управлении авторскими и смежными правами
1. За совершение действий, направленных на обход технических
средств защиты авторских и смежных прав, наступает такая же
ответственность, какая предусмотрена законодательством __________ за
нарушение авторских и смежных прав. (Continues.)
M. Ficsor, Mangalia, August 25-27, 2010
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Implementation in the
C.I.S. Model Copyright Law
The C.I.S. Model Copyright Law on TPMs:
„Article 46 - Статья 46. (contd.)
Tакая же ответственность наступает за изготовление, импорт, распространение
(продажу, представление в прокат), рекламу любого устройства или его
компонентов, владение любым устройством или его компонентами для
коммерческих целей и предоставление услуг:
а) которые рекламируются или предлагаются для продажи в целях обхода
технических средств защиты авторских и смежных прав;
б) основной целью использования и (или) результатом применения
которых является обход любых технических средств защиты авторских и
смежных прав;
в) которые первоначально предназначены, приспособлены или
выполнены с целью предоставления возможности или облегчения обхода
технических средств защиты авторских и смежных прав…. . (Emphasis added.)
M. Ficsor, Mangalia, August 25-27, 2010
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Implementation in the
C.I.S. Model Copyright Law
The C.I.S. Model Copyright Law on RMI
Article 46 - Статья 46:
„2. Ответственность, установленная абзацем первым пункта 1 настоящей статьи,
наступает также за совершение любого из указанных ниже действий, если
совершая такие действия лицо знало или должно было знать, что их
совершение побуждает, позволяет, способствует или скрывает нарушение
авторских или смежных прав:
а) устранение или изменение без разрешения информации об управлении
авторскими или смежными правами;
б) распространение, импорт в целях распространения, публичное
сообщение, доведение до всеобщего сведения для интерактивного
использования произведений и других объектов, охраняемых настоящим
Законом, на которых без разрешения обладателя прав была устранена
информация об управлении авторскими или смежными правами.”
(Emphasis added.)
M. Ficsor, Mangalia, August 25-27, 2010
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Implementation in the
C.I.S. Model Copyright Law
The C.I.S. Model Copyright Law on the independence of TPMs - RMI protection from
protection against actual acts of infringements
The Model Law also contains an important clarification in paragraph 3 of Article 46
(the paragraph 1 and 2 of which contain provisions on TPMs and RMI protection,
respectively, as quoted above). It also follows from the of the TPMs - RMI provisions
of the WIPO „Internet Treaties” on the basis of their interpretation. Its explicit
statement, however, offers a useful guidance, in particular concerning the
relationship between protection against unauthorized circumvention of TPMs and
protection against infringements of copyright and related rights:
„3. Положения настоящей статьи применяются независимо от того, были ли в
результате совершения указанных в настоящей статье действий авторские или
смежные права нарушены еще каким-либо образом.”
In English: „3. The provisions of this article shall be applied irrespective of whether
or not, as a result of the activities mentioned in them, authors’ rights or related
rights have been infringed in any manner.”
M. Ficsor, Mangalia, August 25-27, 2010
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TPMs and exceptions
Provisions of the Information Society (Copyright) Directive
Article 6(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)
[reprographic reproduction], (2)(c) [certain library and educational uses], (2)(d)
[ephemeral recording by broadcasters], (2)(e) [copying of broadcasts in social
institutions], (3)(a) [illustration for teaching; scientific research], (3)(b) [use by people
with disability] or (3)(e) [public security; official procedures] 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. (Emphasis added; continues.)
M. Ficsor, Mangalia, August 25-27, 2010
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TPMs and exceptions
Provisions of the Information Society (Copyright) Directive
Article 6(4) (contd.)
„Member State may also take such measures in respect of a beneficiary of an
exception or limitation provided for in accordance with Article 5(2)(b) [private
copying], unless reproduction for private use has already been made possible by
rightholders to the extent necessary to benefit from the exception or limitation
concerned and in accordance with the provisions of Article 5(2)(b) and (5) [Article
5(5) subjects the application of all exceptions and limitations to the „three-step
test”], without preventing rightholders from adopting adequate measures regarding
the number of reproductions in accordance with these provisions…
The provisions of the first and second subparagraphs [see the preceding slide and
the first paragraph on this slide] shall not apply to works or other subject-matter
made available to the public on agreed contractual terms in such a way that
members of the public may access them from a place and at a time individually
chosen by them.” (Emphasis added.)
M. Ficsor, Mangalia, August 25-27, 2010
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TPMs and exceptions
Implementation of the provisons of Article 6(4) Information Society (Copyright)
Directive guranteeing the applicability of key public-interest exceptions
 The majority Member States apply mediation-arbitration systems as such
intervention measures. In general, the pessimistic forecasts – according to which the
application and protection of TPMs would not guarantee the applicability of important
exceptions and limitations – have turned out to be unjustified.
An example: In Hungary, the intervention system also takes the form of mediationarbitration, for which the Copyright Experts Council is competent. The system has
been in force since May 1, 2004, the day of Hungary’s accession to the European
Union.
 The number of disputes brought in front of the Council during the more than five
years, from May 1, 2004 until August 20, 2010 (the completion of this ppt
presentation ), because beneficiaries have been unable to get access to works and
objects of related rights in order to take advantage of exceptions and limitations, is:
M. Ficsor, Mangalia, August 25-27, 2010
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0 (ZERO)
M. Ficsor, Mangalia, August 25-27, 2010
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TPMs and exceptions
Another example: the US system (where there are three catagories of exceptions to
the prohibitions concerning technological measures)
First category: section 1201(e) for law enforcement, intelligence and other
governmental activities. It is applicable to the entire section 1201, while the other
exceptions only cover „access control” TPMs.
Second category; six specific exceptions concerning „access control” (i) for nonprofit libraries, archives and educational institutions to circumvent access control
TPMs solely for the purpose of making a good faith determination as to whether they
wish to obtain authorized access to the works concerned (section 1201(d)); (ii) for
“reverse engineering” (section 1201(f)); (iii) for encryption research (section 1201(g));
(iv) for the protection of minors (section 1201(h)); (v) for the protection of personal
privacy permitting circumvention when the technological measure, or the work it
protects, is capable of collecting or disseminating personally identifiable information
about the online activities of a natural person (section 1201(i)); and (vi) for security
testing (section 1201 (j)).
M. Ficsor, Mangalia, August 25-27, 2010
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TPMs and exceptions
The US system
Third category of exceptions to TPM prohibitions : The provisions of Section
1201(a)(1)(B)-(E) establish an administrative rule-making procedure to evaluate the
impact of the prohibition against the act of circumventing such „access-control”
measures. That prohibition only entered into force on 28 October 2000; two years
after the enactment of the Digital Millennium Copyright Act (DMCA) implementing the
WIPO „Internet Treaties” in the US . From the moment of its application, however, it is
subject to possible exceptions for users of works that are in a particular class of works
if they are, or are likely to be, adversely affected by virtue of the prohibition in
making non-infringing uses. The applicability of such exception is determined through
a periodic rulemaking by the Librarian of Congress, on the recommendation of the
Register of Copyrights, who is to consult with the Assistant Secretary of Commerce for
Communications and Information.
M. Ficsor, Mangalia, August 25-27, 2010
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TPMs and exceptions
The US system
Under Section 1201(a)(1)(C), the following criteria should to be taken into account
for determining possible exceptions in the rulemaking procedure: (i) the availability
for use of works protected by copyright; (ii) the availability for use of works for nonprofit archival, preservation and educational purposes; (iii) the impact that the
prohibition on the circumvention of technological measures has on criticism,
comment, news reporting, teaching, scholarship or research; (iv) the effect of
circumvention of technological measures on the market for or the value of
copyrighted works; and (iv) such other factors as the Copyright Office (Librarian)
considers appropriate.
So far, three rulemaking procedures have been completed: in 2000, 2003, 2006 and
2010.
M. Ficsor, Mangalia, August 25-27, 2010
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TPMs and exceptions
The US system
Under the recently (July 26) published 2010 list, the following classes of works are
exempt from the prohibition against circumvention of „access controls:”
(1) Motion pictures on DVDs that are lawfully made and acquired and that are
protected by the Content Scrambling System when circumvention is accomplished
solely in order to accomplish the incorporation of short portions of motion pictures
into new works for the purpose of criticism or comment, and where the person
engaging in circumvention believes and has reasonable grounds for believing that
circumvention is necessary to fulfill the purpose of the use in the following
instances:
(i) Educational uses by college and university professors and by college and
university film and media studies students;
(ii) Documentary filmmaking;
(iii) Noncommercial videos (Continues.)
M. Ficsor, Mangalia, August 25-27, 2010
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TPMs and exceptions
The US system
The 2010 list of exceptions to the prohibition of circumvention of „access controls”
(contd. – exceptions also allowing so-called „jailbreaking” of Apple’s iPods)
(2) Computer programs that enable wireless telephone handsets to execute
software applications, where circumvention is accomplished for the sole purpose of
enabling interoperability of such applications, when they have been lawfully
obtained, with computer programs on the telephone handset.
(3) Computer programs, in the form of firmware or software, that enable used
wireless telephone handsets to connect to a wireless telecommunications network,
when circumvention is initiated by the owner of the copy of the computer program
solely in order to connect to a wireless telecommunications network and access to
the network is authorized by the operator of the network. (Continues.)
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TPMs and exceptions
The 2010 list of exceptions to the prohibition of circumvention of „access controls”
(contd.)
(4) Video games accessible on personal computers and protected by technological
protection measures that control access to lawfully obtained works, when
circumvention is accomplished solely for the purpose of good faith testing for,
investigating, or correcting security flaws or vulnerabilities, if:
(i) The information derived from the security testing is used primarily to
promote the security of the owner or operator of a computer, computer system,
or computer network; and
(ii) The information derived from the security testing is used or maintained in a
manner that does not facilitate copyright infringement or a violation of
applicable law. (Continues.)
M. Ficsor, Mangalia, August 25-27, 2010
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TPMs and exceptions
The 2010 list of exceptions to the prohibition of circumvention of „access controls”
(contd.)
(5) Computer programs protected by dongles that prevent access due to
malfunction or damage and which are obsolete. A dongle shall be considered
obsolete if it is no longer manufactured or if a replacement or repair is no longer
reasonably available in the commercial marketplace; and
(6) Literary works distributed in ebook format when all existing ebook editions of
the work (including digital text editions made available by authorized entities)
contain access controls that prevent the enabling either of the book’s read-aloud
function or of screen readers that render the text into a specialized format.
[Exception for blind or otherwise visually impaired persons.]
M. Ficsor, Mangalia, August 25-27, 2010
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THANK YOU FOR YOUR ATTENTION
M. Ficsor, Mangalia, August 25-27, 2010
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