• 6. Technical Protection
  
  • 6.1 Identification of Works
  • 6.2 Access Control Mechanisms, Use Controls, Accounting Mechanisms
  • 6.3 Legal Protection Against Circumvention

6. Technical Protection

Producer Multimedia makes his product available for access in a network. If he fails to incorporate an access control mechanism or any other kind of encoding, anyone in the world will be able to download the product free of charge, use it without restrictions, incorporate the product into his own product and make the resulting product available in a global network, hence entering into competition with Multimedia. How can technology assist Multimedia in controlling where possible access to and further use of his protected product?

It is possible to circumvent each and every technical protection measure by using technical means. It is simply a question of time and of the relation between the effort necessary to circumvent and the value of the decoded contents. What use are the best access control mechanisms and security measures if providers are unable to prevent crafty people - who so far have usually specialised in selling counterfeit telephone cards or illegal decoders for encoded satellite programs - from offering for sale and selling circumvention devices without having to fear legal sanctions?

If the aim is to counter the loss of control entailed for protected works and achievements by digital networks, the legal instruments as such will not be sufficient. To a large extent the solution to a loss in technical control should be sought in technology itself. [Fn.54: Clark, "The answer to the machine is in the machine, " in: Hugenholtz (Ed.), "The Future of Copyright in a Digital Environment" 139 et seq. (Amsterdam 1996).] For this purpose protected works and achievements must first of all be electronically identifiable (6.1). Control of use of works also requires the installation of access control mechanisms, use controls and accounting mechanisms (6.2), which on their part require legal protection against circumvention (6.3).

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In particular, in areas where it was only possible to document mass use on the basis of rough estimates, in future the new technologies will permit more precise documentation of individual acts of use and thus lead to a fairer participation of individual authors and rights holders in the exploitation of their works and achievements. However, this entails a certain loss in the current social balance function of copyright - as currently maintained by lump sum tariffs or by the social funds run by the collecting societies.

Although the use of technology appears to be essential in order to provide effective copyright protection in the digital environment, there is a serious risk that technology alone -and no longer the law - will decide who may obtain access to which information and at what price. In such a scenario, copyright law would only provide the legal foundation for the conclusion of licence agreements and for taking action against persons who unlawfully access protected contents by circumventing technical protection measures. Yet this would seriously disturb the fundamental balance in copyright law between the scope of the exclusive right and the public domain, as well as between the restriction and the promotion of competition. In addition, the freedom of access to information could also be obstructed without justification. However, apparently such a development could not even be prevented if one decided not to facilitate the use of technology but, on the contrary, to make it more difficult.

6.1 Identification of Works

The primary requirement for the automated grant of rights in a digital context is that the individual protected works and subject matter can be identified as such. The relevant authors, rights holders and the licensing terms must also be available electronically. On the one hand, this information must be easily readable for a potential user, on the other hand it should not be easily erasable so that it remains embodied during the subsequent stages of exploitation in connection with the work. In addition, rights holders must be able to prove their authorship or their ownership of rights in case of infringement; the relevant information should not be

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discernible to third parties and should remain embodied within the work even after the latter has been adapted, printed out using analogue techniques and subsequently re-digitised, or where parts of the work are used.

The pre-conditions for this are that the participating circles first agree on which information should be embodied in which form (encoding, encryption [Fn.55: See on this issue A. Roßnagel, "Die Infrastruktur sicherer und verbindlicher Telekooperation," expert opinion commissioned by the Friedrich Ebert Foundation (Bonn 1996).] ) , at which point (file, work and/or part of work) . In this respect, a globally comprehensive system is not necessary; rather, it will apparently suffice that individual regional or work-related sub-systems are compatible with one another or can at least be read by a single uniform software. The advantage of this would be that the existing systems (e.g. ISBN, ISSN, IRC, etc.) that so far have functioned side-by-side, albeit separately, could form the basis for this development. During the second stage the information could be implemented and made available via a system of databases.

The first examples of such systems have evolved in practice. Particular reference is made to the International Standard Work Code (ISWC) developed by the Confédération Internationale des Sociétés d'Auteurs et Compositeurs (CISAC).

Preparation of and agreement as to the information required in order to identify works should be left to the participating circles, the public authorities should support their development wholeheartedly.

6.2 Access Control Mechanisms, Use Controls, Accounting Mechanisms

The first models in the area of access control mechanisms, use controls and accounting mechanisms have entered the test phase. Work involving control of subsequent digital usage of a digital data file once obtained with authorisation has been embarked upon within the framework of the EU ESPRIT program

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under the CITED [Fn.56: Copyright in Transmitted Electronic Documents. The program itself is divided into a number of sub-programs (e.g. COPICAT).] and IMPRIMATUR [Fn.57: Intellectual Multimedia Property Rights Model & Terminology for Universal Reference. The program is coordinated by the British Author's Licensing and Collecting Society (ALCS) ; see http://www.imprimatur.alcs.co.uk.] programs. In the area of images, the TALISMAN [ Fn. 58: "Tracing Authors' Rights by Labelling Image Services and Monitoring Access Network". The project covers both still and moving images and is intended to be compatible with JPEG and MPEG II.] project initiated by DG XIII should be mentioned, which focuses on the identification and incorporation of digital watermarks in the field of images in particular.

It is necessary to wait and see whether in future so-called "software agents" will search the entire global network for authorised and unauthorised usage of works, communicate the relevant information to rights holders and, where necessary, block or even destroy unauthorised data packages.

6.3 Legal Protection Against Circumvention

Since every kind of technical protection provokes circumvention, technical identification and control mechanisms require accompanying legal protection. This requirement does not fall flat simply because circumvention of technical protection devices is not worth the effort where the value of the material protected is negligible.

The current - in particular cross-border [Fn.59: In some foreign countries specific provisions have existed for several years within the context of the battle against computer crime or for the protection of encoded broadcasting signals.] - legal landscape is more than patchy. The only pertinent provision under German

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copyright law is laid down in Sec. 69f(2), German Copyright Act, which served to implement the EC Computer Program Directive. [Fn.60: According to this provision the right holder has a claim to delivery-up and destruction of "means of which the sole intended purpose it to facilitate the unauthorised removal or circumvention of any technical device which may have been applied to protect a computer program."] As regards other technical safeguard measures, in Germany protection is currently only available under the terms of Sec. 1, Act Against Unfair Competition. [Fn.61: On the unlawful use of dongles see decision of German Federal Supreme Court, 1996 GRUR 78 - Umgehungsprogramm .] The pre-requisite of such protection is the competitive individuality of the infringed, i.e. unlawfully decoded, subject matter and obstruction of competitors, a pre-requisite that will always be met where more than a few copies are distributed.

A legal solution will have to clarify at least three issues:
- firstly, who will own this protection against circumvention? The holder of rights in the protected material (as in the case of computer programs under the EC Directive) [Fn.62: Art. 7(1) (c) of EC Directive No. 91/250/EC of may 14, 1991 on the Legal Protection of Computer Programs, OJ EC No. L 122 dated May 17, 1991, at 42, implemented into German law in Sec. 69f(2) of the German Copyright Act.] and/or the provider of encoded services?

- secondly, how should means of circumvention be described? As "exclusively," "predominantly" or "also" suitable for circumvention? The criterion of exclusive suitability for circumvention of protection mechanisms would be too narrow, that of possible suitability too broad. This leaves in essence the criterion of the predominant kind of use of such devices, despite the fact that in practice this allows considerable scope for manoeuvre;

- thirdly, against which acts of use will protection exist? Against importation, putting into circulation, against offering for sale or just exportation?

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Hence, the issue of the legal definition of protection against circumvention should, be the object of further examination and, in accordance with the WCT and the WPPT, [Fn.63: On the WCT and the WPPT see infra point 8.2.] should be regulated as fast as possible in conformance with the solutions arrived at in other countries.