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EU: ACTA Digital Lock Rules Don't Cover Access Controls

By Michael Geist

Newly leaked documents produced by the European Commission provide insight into the EU's view on the ACTA Internet enforcement chapter.  The analysis confirms what should be obvious from the text - ACTA retains the flexibility that exists at international law in the digital lock rules by linking circumvention with copyright infringement.  The EU interpretation again demonstrates that the Bill C-32 digital lock rules go far beyond what is required within WIPO and now within ACTA.  Indeed, the European Commission states unequivocally that ACTA does not cover access controls nor acts not prohibited by copyright (would could include fair dealing).  This provides further evidence that compromise language that links circumvention with actual copyright infringement is possible within Bill C-32 that will still allow Canada to be compliant with WIPO and ACTA.

The full European Commission analysis:

As far as technical protection measures (TPMs) are concerned the aim of this provision is that only circumvention undertaken to commit an IP infringement can be made subject to civil or criminal liability.


The Commission reads the provision of paragraph 2.18.5, including the definition provided in footnote 14, as implying that all protection granted to TPM are limited to providing adequate legal protection and effective legal remedies against the circumvention of TPM, as long as:

-    the TPM are effective (TPM themselves are not a form of copyright or neighbouring rights);

-    the TPM are used by authors, performers or producers of phonograms in connection with the exercise of their rights (i.e., TPM used by any other group, such as broadcasters, to control access to scheduled programmes are not protected, TPM used by the group of beneficiaries to achieve goals not linked to protecting their copyrights ("access control") are not protected either); 

-    the TPM are used to restrict acts, in respect of works, performances or phonograms, which are not authorised by authors, performers or producers of phonograms or are not permitted by law - this essentially implies two things:

(1)    acts not prohibited by copyright, such as browsing, linking, … cannot be prevented by using TPM; and

(2)    TPM cannot be used to override statutory exceptions ("permitted by law").

In order to clarify the concerns in relation to "access control", it is the view of the Commission that with the current definition given in footnote 14 it cannot be inferred that copyright allows rightholders to prohibit certain forms of "use" and thus prevent access to works.  This form of "usage" control is not part of the EU acquis.

As international and domestic laws currently stand, copyright and related rights allow the right holder to prevent certain acts such as reproductions, fixations, adaptations, the distribution of copies and the communication to the public (including making a work available to the public in an interactive manner). None of these restricted acts should be confused with a right to prevent use (e.g., reading, viewing) of a work. Any attempt to expand copyright to cover "use" would muddle the distinction between IP and conditional access. The Commission cannot follow an approach where controlling access to services is mixed with the infringement of IP rights.

In these circumstances the reference to access control is highly sensitive. The only way acceptable by the Commission in the ACTA text was by adding a caveat to footnote 14 which read as follows: "without prejudice to the scope of copyright or related rights contained in a Party's law..." 

By doing that, the definition in footnote 14 does not extend the scope of protection to encryption devices or other tools to control access independently to the exercise of their rights by authors, performers or producers of phonograms.

Full post as published by Michael Geist on November 09, 2010 (boomark / email).