Copyright in the digital age: a comparative survey

As a result of the development of the Internet and other electronic technologies, drafters of intellectual property laws the world over have been faced with some unprecedented challenges. Many of these relate to the appropriate content and scope of intellectual property protection for various works and bring into question fundamental policies underlying that protection. This article identifies and examines some of these challenges, with particular reference to the increasing commodification of valuable information under the guise of copyright law. It takes as its focus recent developments in the laws of the European Union, the United Kingdom and the United States.

I. INTRODUCTION

In any treatment of recent developments in intellectual property law, it is essential to appreciate at the outset that intellectual property laws are products of national legislation that aim to comply with various international treaties. The extent to which international harmonization is achieved is therefore directly related to the efforts of domestic legislating bodies. The track record of this harmonization of intellectual property law, as opposed to some other bodies of law, has been impressive over the last century. (1) The impetus for this international legislative harmonization has been created, in large part, by the extent and ease with which intangible “information products,” such as copyright works move across national borders.

The international treaties to which the following discussion most closely relates are the World Intellectual Property Organization (“WIPO”) Performances and Phonograms Treaty, (2) and the WIPO Copyright Treaty, (3) both finalized in December 1996. This article examines the ways in which these treaties respond to the needs of copyright holders in the digital age and the measures that have been taken by some contracting parties to implement relevant treaty provisions. The main jurisdictions under consideration are the United States and the European Union (“EU”) with some comment as to how the United Kingdom has addressed certain issues in line with their obligations under both international treaties and EU Directives.

In fact, the United Kingdom’s position in this area is particularly interesting due to the fact that its traditional response to the needs of copyright holders has reflected the approach taken in the United States. However, the United Kingdom now has obligations to comply with Council Directives of the European Parliament and the Council of Ministers, despite the fact that the approaches to copyright throughout Europe have historically differed from those in England:

Two major conceptualisations [sic] of [the function of copyright law] can be identified in the world’s legal systems. The Anglo-American or Common Law tradition emphasises [sic] the economic role of copyright. Protection of copyright subject-matter against unauthorised [sic] acts of exploitation enables right-holders either to go to market themselves with a product based on the material, or to grant others, by outright transfer or, more typically, by licence [sic], the right to do so for whatever seems an appropriate price. In the absence of copyright, which would enable free-riding by would-be users, it is unlikely that producers of the material would earn any return for their work, and without that incentive production would dry up or slacken significantly. Copyright is thus essentially a response to market failure, a means by which socially beneficial activities can be made financially worthwhile. It rests ultimately upon the general or public interest. In contrast, the Continental or Civil Law tradition sees copyright as springing from the personality rights of the individual creator of the subject matter. Companies and organisations [sic] as such cannot be creators. This perception is reflected in the name author-law’ given to the topic by the various Continental systems…. Protection is given out of respect for the individual’s creative act of production, and extends beyond the merely economic to the so-called moral rights’: the right to be identified as the creator of a work, the right to have the integrity of the work preserved, and others. Copyright is thus rooted in protection of the individual personality and interests of the author as expressed in her work. (4)

It is important to note that while EU Member States are expected to act consistently with EU legislation, Member States have been able to preserve their domestic legislative identities because EU law does not automatically override national legislation. In the area of intellectual property law, the usual course is for an EU Directive to recommend general aims to be taken on a particular matter to be debated and finalized. It is then up to Member States to comply with the Directive by enacting their own national legislation, often with significant leeway as to how formally the draft legislation will comply with the requirements of the Directive. There is usually a time limit of up to two years within which Member States are required to enact complying legislation.

Many EU Directives contain sections that are mandatory and others that are discretionary, that is, Member States may have discretion as to whether to enact certain portions of a Directive into national law. The extent of discretion allowed for by the recent EU draft Directive “on the harmonization of certain aspects of copyright and related rights in the information society” (“Copyright Directive”) has been a source of concern, and is discussed in more detail below.

The following discussion seeks to identify some of the key legal concerns relating to the protection of copyright in the digital age. It then identifies and briefly evaluates some of the legal responses at the international, EU, and domestic levels. The final part of the paper focuses on one aspect of copyright protection that has been proving increasingly troublesome in the digital age: the gradual commodification of valuable information under the ambit of copyright protection. The proper protection for the commodification of information has become a major concern in the United States as the result of the enactment of recent legislation, such as the Digital Millennium Copyright Act 1998 (“DMCA”), (5) the Uniform Computer Information Transactions Act (“UCITA”) (6) and the proposed Collections of Information Antipiracy Act (“CIAA”). (7) The EU appears to be following suit as evidenced by the EU Parliament’s recent ratification of a final text of the Copyright Directive.

II. THE 1996 WIPO TREATIES

The 1996 WIPO treaties (8) require contracting parties to enact national legislation that will promote the rights of copyright-holders of material that is currently available in different forms and, in particular, is accessible through electronic media. The requirements imposed on contracting parties include:

a) the creation of a “right of distribution” and some other associated rights in copyright holders with respect to literary and artistic works (including computer software and databases) (9) that give authors the exclusive right to make these works and copies thereof available to the public

b) the provision of “adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with” their rights in copyright works

c) the provision of adequate and effective legal remedies against persons who knowingly remove or alter any “electronic rights management information” without authority or who distribute, import, broadcast or communicate to the public works or copies of works knowing that such information has been removed or altered without authority. (12)

The treaties also serve the more fundamental function of clarifying certain rights that had proved to be problematic prior to 1996. For example, Article 4 of the WIPO Copyright Treaty now states that computer programs are to be protected as literary works within the meaning of standard copyright law. Article 5 now acknowledges that databases require some form of protection independent of copyright. By the time this treaty was implemented, most major trading jurisdictions had already acknowledged, either through legislation or case law that computer software should be treated as “literary works” under copyright statutes. (13)

While most jurisdictions have not moved as quickly on the legal protection of databases, both the United Kingdom and the United States are among the forerunners in developing legislation. The United Kingdom now has a “database right” that may exist alongside copyright in a database depending on the amount of effort and investment associated with the database’s creation. This legislation conforms with the EU Database Directive of 1996. (14) The United States is currently debating similar legislation. (15)

Most of the provisions of the 1996 WIPO treaties were not particularly controversial. Many simply clarified what was already assumed to be the law in national legal systems. In the case of the United States, Professor Samuelson has noted:

The WIPO treaty digital copyright norms were … mostly old news for U.S. law. Its cases had already recognized the rights of authors to control digital reproductions of their works, as well as to control digital transmissions of their works to the public. Courts had invoked fair use in a number of digital copyright cases, and had refused to hold online service providers liable for infringing activities of users about which the providers had no knowledge. Because of the substantial accord between the WIPO treaty norms and existing U.S. law, the Clinton Administration initially considered whether the WIPO Copyright Treaty might even be sent to the Senate for ratification “clean” of implementing legislation. (16)

The United States did, however, eventually respond to the WIPO treaties with the DMCA, which some have argued goes beyond the requirements of the treaties and arguably ventures into unconstitutional territory.

III. THE UNITED STATES RESPONSE TO THE 1996 WIPO TREATIES: THE DIGITAL MILLENNIUM COPYRIGHT ACT

A. The General Scheme of the Act

EU responses to some of the key issues have been premised in part on conforming with United States legislation, although the form of resulting legislation in individual Member States is not yet known. (17) Therefore, it is worth briefly considering the key provisions of the DMCA prior to considering EU responses to the 1996 WIPO treaties.

As Professor Samuelson has observed, because of already existing legislation, the United States had less work to do to comply with the WIPO treaties than EU Member States did. (18) Nevertheless, the United States responded to the treaties with a major piece of legislation, the DMCA. The DMCA is divided into four main parts that deal respectively with:

a) the implementation of WIPO treaty provisions with respect to the right of copyright-holders to use effective technological measures to prevent unauthorized access to their works

b) limitations on liability for making copies of computer programs in certain circumstances

c) limitations on the liability of online service providers for breach of copyright with respect to activities such as making transient copies of works for purposes of transmission through a network, hosting, caching, etc.

d) protection of certain original designs. (20)

It is the first of these parts that has caused the most controversy and it is on this provision as well as on similar provisions recently debated in the European Parliament and Council of Ministers that the final section of this paper focuses. The remaining parts of the DMCA clarify and expand upon principles that have already been settled by previous case law and legislation.

In developing the third part of the DMCA, the United States was able to draw upon a history of litigation in relation to the limits of online service provider liability for copyright infringement on websites and bulletin boards hosted by them. (21) However, the United Kingdom and the EU generally do not have such a history. It has been suggested that under the current copyright laws of the United Kingdom, online service providers could be held liable for creating transient copies of works in the course of transmitting them through the network and for various other “innocent” activities, although in practice this is unlikely to happen. (22)

Hector L. MacQueen has highlighted the difficulties of the somewhat “patchy” approaches to the issue of online service provider liability amongst various jurisdictions to date:

[i]t remains to be seen what will be the impact … of various pieces of legislation, actual and proposed, around the world dealing generally with the issue of on-line service [sic] liability. In Germany, the Teleservices Act of 1997 exempts Internet service providers from responsibility for third party content unless they have knowledge of it and are technically able and can reasonably be expected to block its use. In the U.S., the Digital Millennium Copyright Act of 1998 exempts the service provider from liability where it has no knowledge or information about the infringing material in its system, acts expeditiously to remove or block access to material when knowledge or information comes to hand, does not receive any financial benefit directly attributable to the infringing material, and complies with certain notice and take-down’ provisions of the Act enabling copyright owners to require the service provider to remove or block access to the infringing material. The Directive on electronic commerce in the European Union also sets out an exemption from liability for intermediaries where they play a wholly passive role as mere conduits of information from third parties. It limits the service providers’ liability for other activities such as the storage of information provided by recipients of the service and at their request (hosting), so long as the provider does not know of the illegal activity, is unaware of facts and circumstances from which illegal activity is apparent, and acts expeditiously to remove or disable access upon learning or becoming aware of the activity. There is explicitly no obligation to screen or monitor third party content. (23)

As noted above, the remainder of this article is primarily concerned with issues relating to the commodification of commercial information as a result of legislation that effectively prevents access to copyright material and, perhaps, indirectly to other material that happens to be stored with it. However, it is worth noting that there are other areas of copyright in the digital age that are perhaps less controversial today than they were five or six years ago, but still raise their own problems, including potential lack of international harmonization.

B. The “Anti-Circumvention” Provisions

Returning to the provisions of the DMCA that deal with access to copyrighted works, (24) the basic scheme is to insert a new section 1201 into Title 17 of the United States Code (“U.S.C.”) on copyright. The idea of this new section is to provide a basic prohibition on circumventing a technological measure that effectively controls access to a protected work, (25) with some exceptions to the prohibition.

The section further includes prohibitions on manufacturing, importing, offering to the public, providing or otherwise trafficking in any technology, product, service, device, or component that is primarily designed to circumvent a technological measure or to circumvent protection afforded by a technological measure. These additional prohibitions are found in sections 1201(a)(2) and 1201(b). These tend to be referred to in relevant literature as the “anti-device” provisions of the legislation.

The exceptions to these basic prohibitions relate to situations that include particular activities conducted by non-profit libraries, archives and educational institutions

It is beyond the scope of this paper to examine the intricacies of the drafting of the first part of the DMCA in any detail. The aim is rather to compare the fundamental approaches to issues relating to protection of copyright in the digital age among several jurisdictions. However, the concerns relating to the approach taken in this part of the Act are well-documented. (28) They revolve around issues such as:

a) the constitutionality and public policy concerns arising in relation to the enactment of prohibitions on accessing copyrighted works rather than on their unauthorized use

b) the commodification of commercial information under the guise of copyright law and the associated fear that the measures in section 1201 do much more than protect copyrighted works, potentially preventing access to much information that may or may not be subject to copyright

c) the lack of access to copyrighted works where there may be a legal right to use a work or portions of a work due to the way the Act is drafted, particularly in terms of the “anti-device” provisions. (31)

These concerns will be examined in the final part of this paper. However, before analyzing them in detail, it is necessary to consider the approach being taken in the EU with respect to the same issues.

IV. THE EU DIRECTIVES ON COPYRIGHT AND E-COMMERCE

The EU has been somewhat slower than the United States in its response to the issues encompassed in the DMCA. Part of the reason for this is probably the need for a number of Member States to agree upon a position with regard to the relevant issues, which are indisputably very complex, and for the agreement to filter down into legislation at the national level. Additionally, the European Parliament and Council of Ministers have not faced the kinds of political pressures exerted upon the United States Congress. As Professor Samuelson notes, significant lobbying was carried out during the congressional debates on the United States legislation by both the Hollywood film industry and the Silicon Valley computer industry. (32) Indeed, perhaps somewhat predictably, the first judicial decision concerning the anti-circumvention provisions of the United States legislation involved the film industry. (33)

The text of two EU Directives impacting upon copyright in the digital age were presented in draft form in June 8, 2000 — the Copyright Directive (34) and the E-Commerce Directive. (35) These have continued to be debated between the European Parliament and the Council of Ministers, but the final text of the Copyright Directive in particular has recently been settled. (36)

The two EU Directives cover such issues as:

a) online service provider liability for acting as a mere conduit of a copyright work or for “hosting” or “caching

b) the reproduction right, right of communication to the public, and distribution right contemplated in the 1996 WIPO treaties with relevant limitations and exceptions

c) obligations concerning rights management information as required by the 1996 WIPO treaties

d) protection against the circumvention of technological measures designed to protect copyright works. (40)

As noted above in relation to the provisions of the WIPO treaties, much of what is contained in these two Directives is self-explanatory and is unlikely to cause difficulty in practice, depending on how effectively and quickly individual Member States draft relevant legislation.

However, the consequences of the EU provisions on technological measures largely found in Article 6 of the Copyright Directive remain to be seen. In discussing this issue it is important to appreciate that the Copyright Directive provides significant leeway for methods of enactment into domestic law among Member States.

Article 6(1) provides that, “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 pursues that objective.” (41)

However, to fully understand Article 6(1), it is necessary to appreciate the definition of “technological measures” as provided in Article 6(3):

Any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject matter, which are not authorised [sic] by the rightholder of any copyright or any right related to copyright as provided by law or the sui generis [database right]. (42)

Thus, the point of Article 6(1) is to require Member States to provide legal protection against circumventing a technological measure that is designed to prevent or restrict unauthorized acts in relation to copyright works (or works protected by the EU database right). Although its language is rather vague, the final sentence of Article 6(3) attempts to define “effective” technological measures:

Technological measures shall be deemed effective’ where the use of a protected work or other subject matter is controlled by the rightholders through application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject matter or a copy control mechanism, which achieves the protection objective. (43)

The definition’s circularity undermines its usefulness — according to Article 6(1), a measure is “effective” if it “achieves the protection objective.” (44) Arguably, if a measure achieves the intended protection objective, there is no need for the law to protect it. Under this logic, the concept of “effective” in the DMCA is more useful. The DMCA refers to a measure that achieves its objective “in the ordinary course of its operation,” thus allowing for the possibility that it is not 100% effective in practice, and therefore requires some legal “assistance” in meeting its objectives. (45)

Article 6(2) of the EU Copyright Directive deals with devices intended to circumvent technological measures. It provides that:

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. (46)

As with Article 6(1), this provision is mandatory, although the exact form of domestic legislation giving effect to it is left to the discretion of each Member State.

Article 6(4) requires that Member States “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 [parts of Article 5] the means of benefiting from that exception or limitation.” (47) This obligation must be undertaken by national legislatures “to the extent necessary [for the beneficiary] to benefit from [the relevant] exception or limitation and where that beneficiary has legal access to the protected work or subject matter concerned.” (48)

Relevant exceptions include reproductions for private use, (49) use by public “libraries, educational establishments or museums,” (50) by social institutions such as hospitals and prisons that pursue non-commercial purposes, (51) use for scientific research, (52) and for public security, (53) However, because the provisions of Article 5 are discretionary, rather than mandatory, both the decision to enact exceptions, and the determination of what form such measures will take is left to the individual Member State. (54) It has been a source of concern that different Member States may adopt different exceptions and limitations from Article 5. This could result in a disharmonious approach among Member States.

At the same time, questions have arisen as to whether the “fair use” or “fair dealing” exceptions to copyright protection should change simply because we have moved into a “digital information age.” In questioning the validity of contractual provisions aimed at granting copyright owners greater protection in the digital age, Professor Cornish has noted:

One novel question is whether the exceptions should be raised to the level of guaranteed rights of access and use, which cannot be by-passed…. In the past, it has generally been assumed in British and other copyright systems that exceptions do have this character, though there has been only very occasional contest about it. If that is so, why should the approach change under a digital system? Why should not the former balances of interest continue under the new technology? Can it really be that, because there are the means of requiring payment [for access to a copyright work], every transaction, no matter what its justification, should lead to payment? If so, will there in the end be any purpose in imposing any limit even on the duration of copyright itself? In the counsels of the European Union there are few signs that these questions have received truly serious attention. (55)

These concerns relate to legislation that has the effect of granting greater protection to copyright holders in the digital age. Similar questions have been raised in relation to the policies behind the drafting of the DMCA:

The legal issue arises of how to conceptualize the browsing activities of users in decades past. Why is it that reviewers could traditionally quote scattered passages from copyrighted works? Is it because they had a right to do so? Could chefs review the techniques of their predecessors as contained in published cookbooks of the past as a matter of right? If so, was the right of constitutional magnitude, safeguarding First Amendment interests of free speech and the advancement of knowledge? Or did the law simply allow those activities, as it would have been economically unproductive to pursue such small scale utilization? These fundamental questions exert practical consequences. Under the first point of view, any danger to the public’s right to browse posed by the digital environment must be negated. In other words, if users have a constitutional right to quote for fair use purposes, then Congress was under an obligation to frame section 1201 in a manner that preserves that right. Under the second point of view, by contrast, the marketplace can be left to develop — if browsing rights are extinguished in the process, the only lesson to derive is that the economics evidently have changed. Congress, under this viewpoint, need not embody into section 1201 any special solicitude for user rights. (56)

The question of permitted uses of copyright material has always been open to debate. As the above comments illustrate, it has never been clear as to whether such uses are based on solid legal rights or, instead, have simply been accepted out of commercial convenience. Without a clear answer to this question, it is difficult to criticize legal and regulatory measures such as the DMCA, or Articles 5 and 6 of the EU Copyright Directive.

Some guidance as to the legal standing of “fair use” exceptions to copyright protection would likely be helpful to EU Member States faced with the task of enacting anti-circumvention legislation. Litigation in the United States under 17 U.S.C. [section] 1201 may be a source of such guidance, particularly in the context of permitted uses of protected material.

V. THE LEGAL PROTECTION OF DATABASES

In order to consider digital age copyright law’s effect of commodifying information, it is worthwhile to examine some legal responses to Article 5 of the WIPO Copyright Treaty. This article provides that:

Compilations of data or other material, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations, are protected as such. This protection does not extend to the data or the material itself and is without prejudice to any copyright subsisting in the data or material contained in the compilation. (57)Article 5 and related legislative responses have given rise to some issues similar to those arising under 17 U.S.C. [section] 1201 (and similar EU provisions) concerning the commodification of information.

At first, Article 5 may seem somewhat confusing in that in most legal systems, databases have historically been protected as “literary works.” However, many national legal systems have questioned whether all databases should be classified as “literary works.” Courts have tended to accept that databases demonstrating a certain level of originality in their creation, selection or arrangement should appropriately be protected as literary works for copyright purposes. However, less original databases, such as a white pages telephone book, have proved more problematic. (58)

The idea behind Article 5 is the retention of copyright protection for databases that may be deemed “literary works,” and to develop a new form of intellectual property protection for those databases that fall outside of this classification. This is the approach that has been taken at the EU level (59) and is now also reflected in United Kingdom law in the Copyright and Rights in Database Regulations. (60)

The scheme of British law is to maintain protection of databases as “literary works’ under section 3(1) of the CDPA. However, the CDPA also includes a new provision to clarify the meaning of the term “database” for copyright protection purposes. (61) This new section 3A(1) of the CDPA defines “database” as “a collection of independent works, data or other materials which (a) are arranged in a systematic or methodical way, and (b) are individually accessible by electronic or other means.” (62) Section 3A(2) goes on to provide “[f]or the purposes of this Part a literary work consisting of a database is original if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation.” (63)

If a database is not “original” in this sense, it cannot be protected as a “literary work.” However, it may fall under the new “database right” established by rule 13(1) of the Database Regulations: “[a] property right (“database right”) subsists, in accordance with this Part, in a database if there has been a substantial investment in obtaining, verifying or presenting the contents of the database.” (64) Rule 13(2) provides that “it is immaterial whether or not the database or any of its contents is a copyright work” under the CDPA. (65) Thus, it is possible for both a copyright and a database right to inhere in the same database.

If a database right is established in a database, “a person infringes [that] right if without the consent of the owner of the right, he extracts or re-utilises [sic] all or a substantial part of the contents of the database.” (66) Furthermore, “the repeated and systematic extraction or re-utilisation [sic] of insubstantial parts of the contents of a database may amount to the extraction or reutilisation [sic] of a substantial part of those contents,” and may also constitute an infringement of a database right. (67) Unlike copyright, the maximum duration of a database right is fifteen years. Under rule 17 of the Database Regulations, this period runs from the end of the calendar year in which the making of the database was completed, unless the database has been made available to the public before its completion. In the latter case, the fifteen year period will run from the end of the calendar year in which the database was first made available to the public.

Rule 17(3), however, provides that:

Any substantial change to the contents of a database, including a substantial change resulting from the accumulation of successive additions, deletions or alterations, which would result in the database being considered to be a substantial new investment shall qualify the database resulting from the investment for its own term of protection. (68)

It has been noted that this provision could have an interesting effect in practice in relation to electronic databases:

The application of [rule 17(3)] should be non-problematic where databases (perhaps a telephone directory) are issued on an annual basis. Its application to on-line databases may be more contentious and the provision… was amended from earlier proposals to try to cover the situation where a database was subject to continual minor amendment. The example might be taken of an on-line commercial database of law reports such as Lexis. In most areas, cases are stored from the last 50 years. If reports are added on a daily basis, each day will see a database which is slightly different from the previous one. On a rough and ready calculation, the change from one day to another will be in the region of 0.0001% of the total database.

This surely cannot be considered substantial. As additions accumulate and are accompanied, perhaps, by changes to the structure of the database itself, it must be likely that the criteria will be satisfied before the expiration of the fifteen year period. Assuming continuing development of the database, it will obtain perpetual protection. (69)

Even though the idea behind the database right is to create a less substantive intellectual property right in databases than that which would be extended to those protected by copyright law, the opposite result may be achieved in relation to some databases. Paradoxically, those databases that demonstrate insufficient “originality” to be protected by copyright may, in fact, receive a greater term of protection under the new database right

Perhaps this result is unobjectionable in practice, and perhaps a number of databases protected by the database right and/or by copyright protection will not even require fifteen years of protection, depending on how long the owners remain in business. Only time will tell whether issues of inconsistency between the potential duration of copyright protection and database right protection become problematic in commerce. More importantly, time will determine whether inconsistencies between the protection of paper-based and online databases cause problems in practice.

Similar issues are likely to arise in the United States if and when the proposed Collections of Information Antipiracy Act is brought into force. This legislation has similar aims and objectives to the Database Regulations. Its main features have been summarized as follows:

The CIAA would prohibit anyone from extracting or using all or a substantial part of a collection of information, if the collection or its maintenance requires substantial investment of monetary or other resources and the use harms the actual or potential market for any product that incorporates the information collection. The Act explicitly excludes from its coverage extraction and use of individual items of information or insubstantial parts of a collection. But repeated acts of individual extraction are not exempt. The Act also does not give the person who develops a database a monopoly over the information, only over use of the collection to access the information. A competitor may independently collect the information into a competing collection. (70)

It appears that the same “duration” problem discussed above in relation to the UK Database Regulations arises under the proposed legislation in the United States. The proposed CIAA also creates a fifteen year limitation period for protection of an information collection from the time of “investment” in the collection. However, “maintenance” of a collection is included as a form of “investment” from which the fifteen-year period may run. Again, this has the potential to provide indefinite protection for some online databases. “It remains to be seen whether courts [would] be persuaded to read the [Act] as indefinitely protecting collections of information that require continuous updating.” (71)

So why all the fuss about database protection, regardless of its duration? The answer is the same as the answer to the question why there has been concern about the “anti-circumvention” and “anti-device” provisions of the DMCA and equivalent EU legislative initiatives. It seems that the law relating to copyright and associated rights is extending beyond traditional boundaries. This could potentially extend intellectual property protection to “information and ideas” rather than original expressions of ideas. As Professor Benkler puts it in relation to the CIAA:

The Act departs from some of the most basic precepts of traditional copyright law. It compromises those elements of copyright law that have long been considered the means by which copyright law mediates its conflict with the First Amendment. The Act requires no originality to gain its protection. It prohibits use of information qua information, and is thus intended to protect uses of information under conditions left unprotected by the idea-expression dichotomy. (72)

Similar concerns arise in relation to laws that prohibit access to copyrighted works and thereby indirectly prohibit access to non-protected information that may be stored with such works. The final part of this paper now turns to an examination of some of these issues from both a legal and a practical perspective.

VI. PROTECTION OF INFORMATION AS A VALUABLE COMMODITY IN THE DIGITAL AGE

A. Intellectual Property Protection versus Freedom of Expression

Article 2 of the WIPO Copyright Treaty reiterates the basic premise of copyright law that “[c]opyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.” (73)

Despite this, the WIPO Copyright Treaty also contains provisions that protect computer programs (74) and databases as “literary works,” (75) and also includes provisions that require contracting parties to provide protection against the circumvention of “effective technological measures” used to protect copyright and associated rights in works. (76) There are ways in which these aims could be achieved without going as far as some national legislatures have gone (or may contemplate going) by extending copyright law potentially beyond the aims of Article 2.

The responses of some national legislatures to the requirements of the WIPO Copyright Treaty (and the WIPO Performances and Phonograms Treaty) have brought into sharp focus questions about the appropriate ambit of the law of copyright and associated rights. In particular, questions have arisen about the relationship between copyright law and the need for the free exchange of ideas and information in democratic societies.

Concerns are already being voiced about how new laws that create rights in databases are beginning to blur the boundaries between expression and ideas/information as valid bases for intellectual property protection. Now these concerns are being amplified by the fact that the new “anti-circumvention” provisions, such as those found in section 1201 of the DMCA, will effectively protect, as forms of “property,” much more than just copyrighted works. (77) One argument is that such laws protect any ideas or information that are stored with copyright works and, therefore, are protected by the same technological protection measures. This technological “fencing off’ of material from the public may be seen to propertise it in the same way as the physical “fencing off” of land and other chattels in the tangible world where the law supports and validates the activities of the fencer.

Additionally, there is the related concern that such new laws will have the effect of protecting copyrighted works, not only against those who wrongfully seek unauthorized access to them, but also against those who have a legitimate claim to use them under a “fair use” exception to copyright. An effective “fencing off” of the copyright material, bolstered by legal sanctions against access, could do much to negate these historically unobjectionable exceptions to copyright protection.

Professor Benkler has pointed out that the debate over the appropriate balance between intellectual property protection and the need for the free exchange of ideas and information in a democratic society is not new to the digital age:

It is hardly new to observe that there is a tension between the constitutional command that “Congress shall make no law … abridging the freedom of speech” and the practice of copyright law systematically to prohibit specific instances of speaking and reading. Melville Nimmer first analyzed it in 1970. For Nimmer, the interests served by copyright — providing economic incentives for production — and the interests served by the First Amendment — freedom of democratic deliberation and personal expression — conflicted with each other. His purpose was to balance these conflicting interests. Nimmer mediated the conflict he saw by focusing on a core element of copyright doctrine: the idea-expression dichotomy. He argued that the idea-expression dichotomy in copyright law well balanced the conflicting interests of copyright and the First Amendment in most cases. He reasoned that the privilege to use ideas gives access to almost all the benefits of free speech and dissemination of thoughts, while constraining only the form of their communication. The exclusive rights over the form of expression, on the other hand, seem to provide sufficient incentives to serve the purposes of copyright. This happy accident of copyright doctrine, correctly understood, permitted copyright to dwell in the neighborhood of the First Amendment without too much conflict.(78)

Such views are not limited to the United States, although the United States constitutional guarantee of a right of free speech is not shared in all jurisdictions. In the Anglo-Australian context, Parliament’s attempt to commodify certain English expressions with the aim of reserving them for officially licensed merchandise celebrating Australia’s bicentennial was rejected.(79) One commentator has stated:

The stance adopted by the High Court of Australia in Davis provides an impressive illustration of the non-excludable character of certain human resources such as language. Free trade in language is a vital concomitant of free life in a community of equals. It was, oddly enough, Justice Brandeis who spoke in 1927 of the organic integrity of the freedom to think as you will and to speak as you think’. The indivisible quality of this freedom is such that we deem it in general to be socially and politically undesirable to propertise language. We limit linguistic monopolies because ultimately we value the freedom to communicate above the freedom to own: the language of liberty is seldom heard where liberty of language has been removed from the commons.(80)

Democratic societies have long had a difficult history of reconciling the existence of various intellectual property rights in information, expression, and ideas with the need for free access to and dissemination of information and ideas. What is new is the way in which these questions are now being brought into sharp focus by recent extensions of the law of copyright and associated rights enacted in accordance with the requirements of the 1996 WIPO treaties.

Part of the reason for the renewed concern about protecting information as a commodity versus protecting free access to and dissemination of information lies in the nature of the global information society. Although in previous eras there has been concern about the boundaries of copyright law, taking into account the social necessity for free flow of ideas and information, there has never before been an age where information per se has accounted for such a high proportion of commercial value.

The rise of intellectual property law in the previous century largely took place within an “industrial age” where businesses began to place increasing value on information and ideas. However, the industrial age has nothing on the information age when it comes to a perceived need for commodifying information and ideas.

As is obvious from the term “global information age,” we are now talking about a marketplace that treats information and ideas as valuable commodities. The question is, however, should societies allow the perceived needs of the marketplace to overrun other democratic considerations in this respect? An associated question is just exactly who is doing the commodifying here? As Professor Samuelson has demonstrated, much of the lobbying to Congress in the debates over the text of the DMCA was done by wealthy film studios and software manufacturers. (81) Can this be taken as truly representative of the needs of the global information society in terms of appropriate intellectual property protections?

Clearly, the information age raises issues of a type and on a scale with which intellectual property laws have not before had to cope. The problems for drafters of intellectual property laws are not limited to considerations of where lines should be drawn between the rights of freedom of expression and the need to encourage the development of intellectual property through adequate legal protections. There are other issues often relating to things like:

a) the extent of legislatures’ powers to regulate intellectual property

b) the increasing globalization of intellectual property with the associated need for international harmonization of laws despite often differing cultural views on the appropriate ambit of intellectual property

c) the ability to effectively enforce new laws in a global, digital environment.

These issues are considered in the following discussion relating to achieving a balance between the needs of society and commerce in terms of commodifying information and ideas while promoting free expression and dissemination of ideas. In this context, it is important to remember that the Internet and other digital means of recording and disseminating information can be used to promote free expression on a scale never before possible.

Obviously, the concerns with national legislative responses to the 1996 WIPO treaties have related to the ways in which the aims of the treaties have been enacted into domestic laws. As noted above, the United States has taken the lead in terms of enacting “anti-circumvention” provisions into its domestic law. Some EU Member States have moved ahead even faster to database protection in accordance with the requirements of the 1996 EU Database Directive.

Because all of these responses to the 1996 WIPO treaties are relatively recent additions to domestic laws, there is not much guidance as to how courts will interpret their provisions. So far, there has been one case on the anti-circumvention provisions of the DMCA, which is instructive in this debate and which is currently working its way through an appeal process. (82)

As noted above, concern with the United States’ enactment of “anti-circumvention” measures in copyright law has largely been that the legislation has gone too far. It does not limit circumvention of a technological measure with the purpose or effect of infringing copyright, but rather it prohibits circumvention per se with some exceptions that appear to be of limited use in practice. (83) The obvious question is whether such a draconian approach is necessary. The legislation as currently drafted would effectively prevent access, not only to copyright material, but also to other information and ideas that may not be subject to copyright but may be protected by the same technological measures. This arguably has the indirect affect of “propertising” material that hitherto would not have been protected by intellectual property laws. (84)

Additionally, access to copyright material by those who have a legitimate right to access or use it is also effectively prohibited in many cases due to the effect of the “anti-device” provisions in the DMCA. A person may establish access rights under one of the exceptions to the anti-circumvention provision, but may not have the technological expertise to exercise those rights and attempting to do so may amount to trafficking in a prohibited device under 17 U.S.C. [subsection] 1201(a)(2) or (b) of the DMCA.

This is where Article 6(4) of the EU Copyright Directive may be read as differing in approach from the United States’ legislation. Article 6(4) requires Member States to assist beneficiaries of “fair dealing” exceptions to have access to works protected by technological measures. (85) However, this provision only requires Member States to assist such beneficiaries to gain access to relevant works if those exceptions have indeed been enacted into domestic law at the discretion of the relevant Member State, as noted above, and on payment of a reasonable fee to the rightholder.

Additionally, the end of Article 6(4) provides that Member States are only required to assist beneficiaries “where that beneficiary has legal access to the protected work or subject matter concerned.” (86) If “legal access” here is intended to refer to a beneficiary with a legal right to access and who has technically managed to obtain access to a work despite a technological barrier, Article 6(4) may, in fact, add little to the current position under section 1201 of the DMCA.

However, such a reading of the article seems somewhat nonsensical. If the wording of the article did connote a person with a legal right who also has the technical expertise to access the relevant work, there would appear to be little room for the Member State in question to take any kind of action to assist the beneficiary. The question as to how that part of the article will be interpreted by legislative drafters in different Member States remains to be seen. Suffice to say, the wording of this part of Article 6(4) is somewhat ambiguous. “Legal access” in this context may simply have been intended to connote a legal right.

In any event, the question arises as to whether legislation, such as section 1201 of the DMCA, (87) should be modified such that circumvention of a technological measure is only prohibited where the person accessing a protected work has the aim, or where his or her conduct would have the effect, of infringing a copyright or an associated right. This is in accordance with the language of Article 11 of the WIPO Copyright Treaty which requires contracting parties to protect rightholders against the circumvention of effective technological measures that are used by authors, “in connection with the exercise of their rights under this treaty … and that restrict acts … which are not authorized by [them] or permitted by law.” (88) The provisions of the DMCA go beyond these requirements by effectively allowing rightholders to protect more than just their basic intellectual property rights through technological measures. It remains to be seen what form the national legislation of EU Member States will ultimately take.

An alternative question is whether legislation that protects against circumvention of technological measures is even necessary or appropriate as part of copyright law in the first place, despite the provisions of the WIPO treaties. It may be that as a practical matter such issues are best left to the market to sort out and that legal protections are somewhat useless and irrelevant to the actual protection of copyright works. It might also be that, as a legal matter, such measures are beyond the ambit of copyright law and, consequentially, are beyond the constitutional power of many federal legislatures, not to mention associated concerns about the infringement of free speech rights in some jurisdictions.

A detailed discussion of the legal and constitutional position on the ambit of copyright law in multiple jurisdictions is beyond the scope of this discussion. However, the practical issues relating to anti-circumvention laws are worth examining in more detail as they may override the legal and constitutional issues in any event.

B. Legal versus Technological Protection

Is legislation the appropriate tool to protect against unauthorized access to copyright works or is this problem best left to technological innovation? The first inquiry is whether law is an appropriate tool to deal with issues of circumvention of technological measures and generally of access to protected works. The second inquiry is whether law is an effective tool for dealing with such issues, even if it is accepted that law is appropriate in this context.

Before analyzing these questions, it is necessary to define what is meant by “technology” and by “law” in this context. Interestingly, there has been some confusion over this issue in the wake of the 1996 WIPO treaties and various legislative responses to them. In describing the operation of parts of the EU Copyright Directive, for example, one commentator noted that “[t]he legislation … allows for copyright holders to protect their work by using the latest technology to make it physically impossible to make copies.” (89) This is clearly a confusion of what law allows and what technology makes possible. Obviously, Article 6 of the Copyright Directive does not create a situation where copyright holders can use the latest technology to make it practically impossible for others to make copies of their work. Copyright holders could always do this if they had the requisite technical expertise. All the Directive does is require Member States to provide legal protection against those who try to circumvent a technological measure.

The form in which any resulting national legislation is enacted may or may not be as restrictive as section 1201 of the DMCA. However, the Copyright Directive will not and cannot make technological protections effective technologically in such a way that it is physically impossible to make copies of protected works. It can only provide sanctions for circumventing a technological measure that has not proved as “effective” in practice as the copyright owner might have hoped. In some ways, this is the crux of the matter. Is the law an appropriate or an effective tool to bolster the effectiveness of technological measures that prove to have their weak points?

In terms of appropriateness, where a rightholder has taken every technological precaution to protect his or her work, and a wrongdoer manages to circumvent the technological protections for illegal purposes, the law should step in and remedy the situation. But is it not true to say that the copyright laws already address this problem? There were already sanctions in traditional copyright laws for infringing copyright and associated rights, including, in recent years, infringements that take place through electronic means. Concerns about access to protected works surely does not add anything significant to the legal protections of the fights that already existed prior to the enactment of legislation such as section 1201 of the DMCA. This point was made by Professor Samuelson when she noted that United States law already complied with the WIPO Copyright Treaty without the need for any detailed amendment. (90)

Since existing copyright law provides remedies against illegal infringements of copyright material, why should offenders be denied access to the material in the first place? What does this add to the effectiveness of the law on copyright? Historically, copyright in printed material was always considered to be effective without copyright statutes preventing illegal access to locked offices, libraries, book stores and filing cabinets. Why should the position be any different with copyright material stored digitally?

Obviously, in the past there were civil and criminal laws relating to trespass that prevented unauthorized access to material stored physically in offices, shops, etc. Accordingly, is the prevention of similar access in the digital realm appropriate within the scope of copyright law or should the law of trespass be revised to fall in line with the realities of the digital age? (91)

Whether the law of copyright or the law of trespass is the appropriate forum for sanctions, the question remains as to whether such legal protections can ever be truly effective. There has been limited success enforcing criminal statutes aimed at guarding against computer hacking and associated activities due to jurisdictional issues and problems obtaining evidence. (92) Thus, there is limited scope for optimism if similar measures are to be enacted into domestic laws with the purpose of protecting copyright works.

In evaluating the likely effect of the anti-circumvention provisions in the EU Copyright Directive when enacted into national law, MacQueen has emphasized the discrepancy between the force of anti-circumvention law and the likelihood that it can be effectively enforced in practice:

It is evident that the scope and reach of copyright protection are on the brink of significant extension in both the Internet and the real’ world. For many, this will be a matter of regret. The aim is clearly to establish as strong a regime of protection as possible for authors, providing a situation where publication on the Internet can realise [sic] its full economic potential…. In some sense the divergent Anglo-American and Continental approaches to copyright are drawing together to ensure that the author and the industries which bring her material to the public gain recognition and reward on the Internet as elsewhere. But as a result, copyright is moving ever further from controlling the existence of copies to controlling the use made of material, and in this lurks a danger of overlooking the public interest in the dissemination of ideas, information, instruction and entertainment without undue burden, and in the rights of free expression and privacy. Yet the uneasy may take some comfort. Laws can be written in the most draconian terms, but the critical question is whether or not they can be enforced. It is all very well being able to say that the author has a copyright in the UK, or the EU, but what good is that against an infringement in Eastern Europe or Asia? — or indeed against at least the private infringer in the EU? The problem of enforcement of rights is what should be taking up the attention of reformers who want to realise [sic] and maximise [sic] the commercial potential of the Internet. The new laws are being strongly expressed to act as a symbol of deterrence, an approach which may in fact reflect the real underlying weakness of the position in which commercial interests particularly now find themselves. The technological measures of protection to which such legal force is given by the Directive will always be vulnerable to technological circumvention, legitimate or illegitimate. (93)

The question of whether it is appropriate for copyright law to include anti-circumvention measures is obviously secondary compared to the question of whether it is possible for law to effectively protect rightholders against illegal access to copyright works in practical terms.

The recent Reirnerdes (94) case in the United States is a good example of the practical limitations of “anti-circumvention” laws. Reimerdes concerned the defendants dissemination of software that had been developed to circumvent technological protections incorporated into Digital Versatile Disk (“DVD”) players to prevent the copying of DVDs issued by major film studios (who were the plaintiffs in the litigation). (95) They had not developed the software. (96) The defendants only made the software available on their website and provided links to other sites that carried copies of the software. (97) The plaintiffs have been successful in obtaining a number of injunctions against the defendants requiring that the software be removed from their website as well as the hyperlinks to other websites containing copies of the software.(98) The case is currently under appeal and various lawyers’ opinions continue to be sought on the myriad of constitutional and other legal issues arising.

For the purposes of this discussion, however, it is worth focusing on some of the practical issues arising in the case in relation to the effectiveness of section 1201 of the DMCA regardless of how the legal and constitutional issues are ultimately resolved. The main practical points to note about the situation at hand concern:

a) jurisdictional issues

b) the ability to identify the appropriate defendants

c) the ability to obtain an effective remedy.

In terms of jurisdiction, there would be some question as to whether the plaintiffs would have had a remedy against the fifteen-year-old hacker in Norway who originally developed the software to circumvent their technological protection measures. Despite the fact that his activities caused the problems for the plaintiff in the first place, he was in another jurisdiction, and his wrongful’ conduct took place prior to the commencement of the DMCA. If the plaintiffs had wanted to proceed against him, they would have had to deal with difficult private international law issues to ascertain whether any effective action could have been taken against him.

It should be remembered that Reimerdes is a case in which the identities of the people who originally deciphered the plaintiffs’ encryption codes and who subsequently distributed them over the Internet was known. There will be many instances in which the anonymous nature of the Internet could mask the locations and identities of wrongdoers. Thus, there have to be serious considerations regarding the effectiveness of legislation, such as section 1201 of the DMCA, in terms of identifying and proceeding against suspected wrongdoers.

In terms of effective remedy, it was certainly noted in Reimerdes that even where a wrongdoer can be located within the jurisdiction and brought before the courts with sufficient evidence of their infringing activities, the remedies provided in the legislation may be completely inadequate in practice. The injunctions granted against the defendants may have been a moral victory for the plaintiffs, but have probably done little to address the commercial damage caused by the fact that the plaintiffs’ encryption codes were cracked and the resultant software distributed globally. It was certainly argued in the case that granting an injunction at this point would be like “locking the barn door after the horse has bolted.” (99) In responding to this suggestion, Judge Kaplan had the following to say: [any conclusion that an injunction should not be granted on this basis] effectively would create all the wrong incentives by allowing defendants to continue violating the DMCA simply because others, many doubtless at defendants’ urging, are doing so as well. Were that the law, defendants confronted with the possibility of injunctive relief would be well advised to ensure that others engage in the same unlawful conduct in order to set up the argument that an injunction against defendants would be futile because everyone else is doing the same thing.

Second, and closely related, is the fact that this Court is sorely “troubled by the notion that any Internet user … can destroy valuable intellectual property rights by posting them over the Internet.” While equity surely should not act where the controversy has become moot, it ought to look very skeptically at claims that the defendant or others already have done all the harm that might be done before the injunction issues. (100)

Regardless of the reasons for granting an injunction, the judge’s views do not address the practical problem that the plaintiffs may not have an adequate remedy under the DMCA even where defendants can be identified and a successful civil action mounted against them. If the wrongdoer is impecunious, damages are unlikely to be forthcoming and an injunction may well be too late to prevent significant damage or loss, as in Reimerdes.

The above discussion demonstrates that whether or not one is convinced by debates as to the appropriate role of copyright and associated laws in guarding against unauthorized access to information in the digital age, there are serious, and ultimately overriding, issues as to whether such laws can ever be effective in practice.

VII. CONCLUSIONS

Through a survey of some of the provisions of the 1996 WIPO treaties and various responses to them throughout the European Union and the United States it becomes obvious that governments are faced with increasingly difficult issues concerning the appropriate scope of copyright law in the digital age. There are associated issues arising as to global harmonization of relevant laws, enforcement problems and whether law can ever add anything useful to technological protections. Cases, legislation and political and academic debate in the next five to ten years will likely give some greater guidance on issues such as:

a) clarifying the needs of democratic societies with respect to the protection of copyright works and associated rights

b) effectiveness of laws that have been drafted to date at the national level such as the DMCA in the United States and the Database Regulations in the United Kingdom

c) the relationship between legal protections and technological protections of intellectual property in terms of effectiveness and appropriateness

d) whether moves to harmonize intellectual property laws at a global level to meet the needs of the digital age are likely to be effective.

In these respects, the future is likely to hold some very interesting developments for lawyers, politicians, rightholders and users. It is important that those engaging in debates about the appropriate balance of rights in the digital era do not forget the need to strike a balance between ownership of intellectual property and the need for free debate and expression in a democratic society. However, it is equally important that practical imperatives are not forgotten. There is little point in resolving the political issues only to find that effective legislation is impossible in practice. It would be a regrettable and somewhat paradoxical outcome if new copyright legislation had the effect of preventing access to copyright works and other materials by those with a legal right to use them, but lacked the technical skills to access them, while at the same time failed to prevent or effectively redress activities of those with no legal right to the material in question but with the necessary technical skills to gain access.

(+) Editor’s Note: This article was prepared for and presented at the Rutgers Computer and Technology Law Journal’s symposium entitled, “E-Commerce in the Digital Millennium: The Legal Ramifications of the DMCA and Business Method Patents,” which was held on April 12, 2001. The information and analysis contained in this article, therefore, are current to, and reflect the law as of, that date.

(1.) For a useful historical summary of international treaties pertaining to copyright law in particular and the extent to which harmonization has been achieved, see Hector L. MacQueen, Copyright and the Internet, in LAW & THE INTERNET: A FRAMEWORK FOR ELECTRONIC COMMERCE, CH. 9 (Lilian Edwards and Charlotte Waelde eds., Hart Publishing 2000).

(2.) WIPO Performances and Phonograms Treaty, Dec. 20, 1996, World Intellectual Property Organization Diplomatic Conference on Certain Copyright and Neighboring Rights Questions in Geneva, at http://www.wipo.int/treaties/ ip/performances/wipo-performances.pdf (on file with the Rutgers Computer and Technology Law Journal) [hereinafter “WIPO Performances and Phonograms Treaty”].

(3.) WIPO Copyright Treaty and the Agreed Statements of the Diplomatic Conference that Adopted the Treaty and the Provisions of the Berne Convention (1971) Referred to in the Treaty, World Intellectual Property Organization Diplomatic Conference on Certain Copyright and Neighboring Rights Questions in Geneva, at http://www.wipo.int/treaties/ip/copyright/ wipo-copyright.pdf (on file with the Rutgers Computer and Technology Law Journal) [hereinafter “WIPO Copyright Treaty”].

(4.) MacQueen, supra note 1, at 182.

(5.) Digital Millennium Copyright Act 1998 (“DMCA”), 17 U.S.C. [section] 1201 et seq.

(6.) Uniform Computer Information Transactions Act (“UCITA”), at http://www.law.upenn.edu/bll/ulc/ucita/ucital200.htm (last visited Apr. 22, 2001). To date, this legislation has only been enacted in two States with a number of others considering moving in the same direction.

(7.) Collections of Information Antipiracy Act (“CIAA”), H.R. 354, 106th Cong. (1999).

(8.) See supra text accompanying notes 2 and 3.

(9.) In most legal systems, computer software and databases are regarded as literary works’ for the purposes of copyright law. However, some jurisdictions have also developed, or are in the process of developing, special protections for rights in databases where the standard of creativity or originality behind the making of the database is not sufficient to attract copyright protection as a literary work, or where there is some doubt as to whether sufficient creativity or originality is evidenced in the database to justify copyright protection. See, e.g., Parliament and Council Directive 96/9/EC of 11 March 1996 on the Legal Protection of Databases, 1996 O.J. (L 77) 20 [hereinafter “Database Directive”]. This has been implemented into national law in the UK effective January 1, 1998. Copyright and Rights in Database Regulations (1997) SI 1997/3032, available at http://www.hmso.gov.uk/si/si1997/1973032.htm (on file with the Rutgers Computer and Technology Law Journal) [hereinafter “Database Regulations”]

(10.) WIPO Copyright Treaty, supra note 3, art. 6(1). See also WIPO Copyright Treaty, id., arts. 7-8 (creating similar rights of rental and rights of communication to the public). Article 8 is particularly noteworthy in that it remedies the previous problem in which access to copyright material by individuals at different locations and times, for example, via Internet access, was not regarded as “communication to the public” under most standard copyright law definitions. See MacQueen, supra note 1, at 197-99. See also WIPO Performances and Phonograms Treaty, supra note 2, arts. 7-12 (creating similar rights in relation to performances and phonograms).

(11.) WIPO Copyright Treaty, supra note 3, art. 11. See also WIPO Performances and Phonograms Treaty, supra note 2, art. 18 (mirroring the requirements in relation to the protection rights of performers or producers of Phonograms).

(12.) WIPO Copyright Treaty, supra note3, art. 12. The treaty defines rights management information’ as: information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public.

Id. See also WIPO Performances and Phonograms Treaty, supra note 2, art. 19.

(13.) See, e.g., CDPA, supra note 9, [section] 3(1)(b).

(14.) See supra note 9 and accompanying text.

(15.) See Benkler, supra note 9, at 440-46 (discussing the proposed Collections of Information Antipiracy Act)

(16.) Pamela Samuelson, Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to be Revised, 14 BERKELEY TECH. L.J. 519, 530 (1999).

(17.) For a useful comparison of the current United States and EU approaches to copyright protection in the digital age, see Charlotte Waelde, The Quest for Access in the Digital Era: Copyright and the Internet, J. INFO. L. & TECH. (Feb. 28, 2001), at http://elj.warwick.ac.uk/jilt/01-1/waelde.html.

(18.) See supra notel6, at 530-31.

(19.) “Hosting” generally refers to storing information in a network at the request of a recipient of a service provided by an online service provider. Parliament and Counsel Directive 2000/31/EC of 8 June 2000 on Certain Legal Aspects of Information Society Services, in Particular Electronic Commerce, in the Internal Market (Directive on Electronic Commerce), art. 14, 2000 O.J. (L178) 1, 13. “Caching” refers to the automatic, intermediate, and temporary storage of information performed for the sole purpose of making the information’s onward transmission to other recipients of the service on their request more efficient. Id. at art. 13.

(20.) Digital Millenium Copyright Act 1998, 17 U.S.C. [section] 1201.

(21.) See, e.g., Religious Tech. Ctr. v. Netcom On-Line Communication Serv., 907 F. Supp. 1361 (N.D. Cal. 1995)

(22.) MacQueen, supra note 1, at 200.

(23.) Id. at 201-02.

(24.) 17 U.S.C. [section] 1201(a) (2001).

(25.) Id. It has been noted that the drafting of the basic prohibition is somewhat peculiar in that it refers to “circumventing a technological measure that effectively controls access to a protected work.” One might indeed argue that an effective control’ by definition cannot be circumvented by any technological measure. However, this provision merely tracks the wording used in the WIPO treaties and the wording is now reflected in the EU Copyright Directive. Sections 1201 (a)(3)(B) and 1201 (b)(2)(B) of the United States legislation attempt to define the concept of effective control’ or protection by a technological measure by reference to the ordinary course of operation of the technological measure. For example, section 1201(a)(3)(B) provides that “a technological measure effectively controls access to a work’ if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.” 17 U.S.C. [section] 1201(a)(3)(B). This is a different definition of effective’ than the one currently appearing in the EU Copyright Directive.

(26.) Id. [section] 1201(d) to (j).

(27.) Id. [section] 1201(a)(l)(B) to (e). For a summary of action taken by the Library of Congress in the United States, see Waelde, supra note 17.

(28.) See, e.g., Samuelson, supra note 16

(29.) See Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 291, 325-39 (S.D.N.Y. 2000)

(30.) Nimmer, supra note 28, at 726-34.

(31.) It is been pointed out that due to the way section 1201 is drafted, a person may have a legal right to circumvent a technological protection measure under one of the exceptions, but may not have access to the methodology for doing so and any attempt to utilize a device to gain access could involve a breach of one of the anti-device provisions. See, e.g., Nimmer, supra note 28, at 727-31.

(32.) Samuelson, supra note 16.

(33.) Reimerdes, supra note 29.

(34.) European Parliament and Council Directive 2001/29/EC, May 22, 2001.

(35.) Directive 2000/31/EC of the European Parliament and of the Council on Certain Legal Aspects of Information Society Services, In Particular Electronic Commerce, in the Internet Market (EU E-Commerce Directive), 2000 O.J. (L178) 1.

(36.) See http://eurorights.org (last viewed at September 18, 2001).

(37.) EU E-Commerce Directive, supra note 35, art. 12-14.

(38.) EU Copyright Directive, supra note 34, art. 2-5.

(39.) Id. at art. 7.

(40.) Id. at art. 6.

(41.) Id. at art. 6(1).

(42.) Id. at art. 6(3).

(43.) Id.

(44.) Id. at art. 6(1).

(45.) 17 U.S.C. [section] 1201(a)(3)(B)

(46.) EU Copyright Directive, supra note 34, at art. 6(2).

(47.) Id. at art. 6(4).

(48.) Id. It should also be noted that Article 6(4) extends the same provision to the EU Database Directive. Id.

(49.) Id. at art. 5(2)(b).

(50.) Id. at art. 5(2)(c).

(51.) Id. at art. 5(2)(e).

(52.) Id. at art. 5(3)(a).

(53.) Id. at art. 5(3)(e).

(54.) See generally id. at art. 5.

(55.) WILLIAM CORNISH, INTELLECTUAL PROPERTY: PATENTS, COPYRIGHT, TRADE MARKS AND ALLIED RIGHTS 547 (1999).

(56.) Nimmer, supra note 28, at 714-15 (citations omitted). See also Rick Boucher, Proposals for Changes to the Fair Use Doctrine in the Context of Digital and Internet Media, TECH. L.J. (Mar. 6, 2001), at http://www.techlawjournal.com/ intelpro/20010306boucher.asp (arguing that fair use rights are essential to the exercise of First Amendment rights in the United States).

(57.) WIPO Copyright Treaty, supra note 3, art. 5.

(58.) See IAN LLOYD, LEGAL ASPECTS OF THE INFORMATION SOCIETY (2000).

(59.) See generally EU Database Directive, supra note 9.

(60.) Database Regulations, supra note 9.

(61.). CDPA, supra note 9, [section] 3.

(62.) Id., [section] 3A(1).

(63). Id. [section] 3A(2).

(64.) Database Regulations, r. 13(1).

(65.) Id. r. 13(2).

(66.) Id. r. 16(1).

(67.) Id. r. 16(2).

(68). Id. r. 17(3).

(69.) LLOYD, supra note 58, at 189.

(70.) Benkler, supra note 9, at 441.

(71.) Id. at 443.

(72.) Id.

(73.) WIPO Copyright Treaty, supra note 3, art. 2.

(74.) Id. at art. 4.

(75.) Id. at art. 5.

(76.) Id. at art. II.

(77.) See generally supra note 25.

(78.) Benkler, supra note 9, at 386-87.

(79.) See generally Davis v. Commonwealth, 1988 166 CLR 79 (Austl.).

(80.) Kevin Gray, Property in Thin Air, 50 CAMBRIDGE L.J. 252, 286 (1991).

(81.) Samuelson, supra note 16, at Introduction.

(82.) Reimerdes, supra note 29.

(83.) 17 U.S.C. [section] 1201(a).

(84.) Of course, there is a counter-argument that any such information, if truly part of the “public domain,” will be available elsewhere. See, e.g., Waelde, supra note 17. This argument may or may not ultimately prove convincing depending on the extent to which law and technology have the combined effect of restricting access to non-copyright material. As Waelde suggests, empirical research may need to be done to determine the true practical impact of anti-circumvention measures on access to information in the public domain and access to protected information by those who have a legal right to use it. Id.

(85.) EU Copyright Directive, supra note 34, art. 6(4).

(86.) Id.

(87.) As well as other legislation ultimately modeled after Article 6 of the EU Copyright Treaty throughout EU Member States.

(88.) See also WIPO Performances and Phonograms Treaty, supra note2, art. 18.

(89.) EU Votes Yes to Net Piracy Law, BBC NEWS, Feb. 14, 2001, at http://news.bbc.co.uk/hi/english/entertainment/newsid_l169000/1169642.stm.

(90.) See supra text accompanying note 16.

(91.) Indeed, it may be argued that one of the real problems here is that the civil and criminal laws of trespass have not kept pace with the realities of living in the digital world. Legislators in most jurisdictions have tried to deal with issues of trespass in a digital environment. See, e.g., Computer Misuse Act, 1990 (Eng.) and the Uniform Trade Secrets Act (U.S.). The problem has been with effective enforcement of such legislation due to jurisdictional and evidentiary concerns. Given these problems, there is no reason to think that copyright laws attempting to achieve the same ends will be any more effective in terms of enforcement.

(92.) Jacqueline Lipton, Protecting Valuable Commercial Information in the Digital Age: Law, Policy and Practice, 6 J. TECH. L. & POL’Y 2 (2000), at http://grove.uti.edu/~techlaw/.

(93.) MacQueen, supra note 1, at 222-23.

(94.) Universal City Studios, Inc. v. Reimerdes, 111 F.2d 294 (S.D.N.Y. 2000).

(95.) Id. at 308-09.

(96.) Id. at 311.

(97.) Id.

(98.) Id. at 343-45.

(99.) Id. at 344.

(100.) Id. (citation omitted).

DR. JACQUELINE LIPTON, B.A. (Melb.), B.A. (Hons.) (La Trobe), L.L.B. (Hons.) (Melb.), L.L.M. (Monash), L.L.M. (Cambridge), Ph.D. (Griffith)