Sub-regional Seminar on

the Protection of Computer Software and Databases

organized by
the World Intellectual Property Organization (WIPO),
the Romanian Copyright Office (ORDA), and
the State Office for Inventions and Trademarks (OSIM)

Mangalia, Romania, August 25 to 27, 2010

TOPIC 12:DIGITAL RIGHTS MANAGEMENT (DRM) AND ITS

CO-EXISTENCE WITH COPYRIGHT EXCEPTIONS
Dr. Mihly Ficsor, Chairman
Central and Eastern European Copyright Alliance (CEECA)
Budapest

Outline

1.DRM = TPMs and (or) RMI

2.The WIPO Internet Treaties on TPMs and
RMI
3.No new access right
4.Implementation in the EU Information
Society (Copyright) Directive
5.Implementation in the C.I.S. Model
Copyright Law
6.TPMs and exceptions
M. Ficsor, Mangalia, August 25-27,
2010

DRM = TPMs and (or) RMI

The expression digital rights management (DRM) has
been introduced and used in professional (legal, technical) jargon,
in the press and the media. However, it does not appear in the
texts of the provisions of the relevant international
treaties (the WIPO Copyright Treaty (WCT) and the WIPO
Performances and Phonograms Treaty (WPPT)) in the EU
Directives (in particular, in the Information Society (Copyright)
Directive) and in the national laws implementing them .
Technological [protection] measures (TPMs) and rights
management information (RMI) are the relevant
expressions used in the international treaties, the EU Directives
and national laws.
DRM usually means the combination of TPMs and RMI,
although in the professional
and journalistic discourse it is
M. Ficsor, Mangalia, August 25-27,
frequently used also as a reference
just to TPMs, and
2010

No new access right

Contrary to certain allegations, no new access

right emerges as a result of application and
protection of TPMs and RMI.
Access to works by users have always been
controlled; without it, the copyright system simply
could not have existed. In book shops, record shops,
one has had to pay for copies to get full access; in
libraries ,certain rules have had to be respected in order
to receive copies in loan; in case of theatrical
presentations, concerts, etc., buying tickets or other
arrangements have been needed to the members of the
public for getting access.
M. Ficsor, Mangalia, August 25-27,
2010

No new access right

Even the beneficiaries of exceptions have not
been able to get access to copies without any
conditions whatsoever. Walking into a bookshop,
taking a book from the shelves and walking out without
payment referring to the right of free quotation?
In the digital networked environment, what used to be
(i) going to the video shop, (ii) buying a video recording
on a cassette; (iii) bringing it home, (iv) putting into
the player, (v) sitting down and (vi) pressing the play
button has been replaced by a simple click on
the keyboard. The use of TPMs (DRM) is the
normal way of making access conditional to the
payment of a reasonable
priceAugust
or 25-27,
some other
M. Ficsor, Mangalia,
5
2010
arrangement.

The WIPO Internet Treaties on TPMs and RMI

General characterization of the WIPO Internet

Treaties; adoption, enetering into force and the
raticifaction/accession process
The WIPO Internet Treaties adopted in Geneva on
December 21, 1996:
the WIPO Copyright Treaty (WCT)
entered into force on March 6, 2002
number of Contracting Parties on August 20, 2010:
88
the WIPO Performances and Phonograms Treaty
(WPPT)
entered into force on May 20, 2002
number of Contracting Parties on August 20, 2010:
86.
M. Ficsor, Mangalia, August 25-27,
2010
The Treaties offer overall regulation
on copyright and two 6

The WIPO Internet Treaties on TPMs and RMI

General characterization of the WIPO Internet Treaties;
transition countries party to the Treaties
Central and Eastern European countries and the Baltic
States that are also members of the EU: all of them are party
to the Treaties; that is: Bulgaria, Czech Republic, Estonia, Hungary,
Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia.
Countries in the West-Balkans: all of them are party to the
Treaties: Albania, Bosnia and Herzegovina Croatia, Montenegro,
Serbia and the former Yugoslav Republic of Macedonia.
New independent countries in Eastern Europe that used to
be republics of the former Soviet Union: all of them are party
to the Treaties: Belarus, Moldova, the Russian Federation and
Ukraine.
Countries of the Caucasus region: all of them are party to
the Treaties: Armenia, Azerbaijan and Georgia.
Central Asian countries: Three of the five countries are
party: Kazakhstan, Kyrgyzstan
and Tajikistan
M. Ficsor, Mangalia,
August 25-27,(however, the latter
7
2010
only to the WCT); the other two Turkmenistan and Uzbekistan are

The WIPO Internet Treaties on TPMs and RMI

General characterization of the WIPO Internet Treaties;
historical and political background
No revision of the Berne Convention since the Stockholm
(1967)-Paris (1971) twin revisions, in spite of the ever more
numerous challenges raised by new technologies.
Parallel preparatory work in the Uruguay Round GATT
negotiations and in WIPO, with slowing down the latter in order to
avoid interference with the former.
April 1994: adoption of the WCT package along with the TRIPS
Agreement; the latter only bringing about certain modest
changes in the substantive copyright and related rights
norms.
Between the end of 1992 (the de facto closure of the TRIPS
negotiations) and 1994: spectacular development and growing
use of the Internet.
Serious and urgent questions raised for the international
copyright and related rights
systems
as a consequence
of this.
M. Ficsor,
Mangalia, August
25-27,
8
2010
No chance for reopening the
negotiations in WCT;

The WIPO Internet Treaties on TPMs and RMI

General characterization of the WIPO Internet Treaties;
main features
Legally: no revisions of the Berne Convention and the
Rome Convention, but special agreements (under Berne
Article 20 and Rome Article 22).
Concerning the level of protection: Berne & Rome plus
TRIPS plus; that is, what is provided in the Berne and Rome
Convention plus what is provided in the substantive provisions
of the TRIPS Agreement plus what is still included on the
basis of the digital agenda of the preparatory work.
From the viewpoint of economic and legislative burdens:
no real extension of the scope of protection; clarification of
the application of the existing norms and, in certain aspects, their
adaptation to the new environment, and new means of
exercise and enforcement of rights.
Politically: the Treaties
areMangalia,
well-balanced,
flexible and duly
M. Ficsor,
August 25-27,
9
2010
take into account the interests of the different groups of

The WIPO Internet Treaties on TPMs and RMI

General characterization of the WIPO Internet Treaties; the
so-called Berne/Rome plus TRIPS plus elements included in
the WIPO Treaties on the basis of the digital agenda:
clarification of the application of the right of reproduction in
the digital environment, in particular as regards the storage of works,
performances and phonograms in electronic memories;
recognition/clarification of the existence as an inevitable
corollary to the right or reproduction of an exclusive right of first
distribution of copies of works, fixed performances and phonograms;
through a combination and adaptation of existing rights,
recognition of the exclusive right of (interactive) making
available of works, fixed performances and phonograms;
clarification of the application of exceptions and limitations
in the new environment;
obligations regarding the protection of technological measures
and rights management
information,
means of exercising 10
M. Ficsor,
Mangalia, Augustas
25-27,
2010
and enforcing rights.

The WIPO Internet Treaties on TPMs and RMI

Provisions of the Internet Treaties on TPMs and RMI
Agreement at the 1996 Diplomatic Conference: there was a
need for making it possible the application of, and adequately
protecting, technological measures (TPMs, such as encryption
systems) and rights management information (RMI, such as
digital identifiers) in order that copyright and related rights might be
exercised and enforced in the digital, networked environment.
WCT Article 11 and WPPT Article 18:
Contracting Parties shall provide adequate legal protection and
effective legal remedies against the circumvention of
effective technological measures that are used by [authors]
[performers or producers of phonograms] in connection with the
exercise of their rights under [this Treaty or the Berne Convention]
[this Treaty] and that restrict acts, in respect of their [works]
[performances or phonograms] , which are not authorized by [the
[authors][the performers
the
producers
of phonograms]
M. or
Ficsor,
Mangalia,
August 25-27,
11
2010
concerned or permitted by law. (Emphasis added.)

The WIPO Internet Treaties on TPMs and RMI

Provisions of the Internet Treaties on TPMs and RMI

WCT Article 12 and WPPT Article 19:
(1) Contracting Parties shall provide adequate and effective
legal remedies against any person knowingly performing any of the
following acts knowing, or with respect to civil remedies having
reasonable grounds to know, that it will induce, enable, facilitate or
conceal an infringement of any right covered by [this Treaty or the
Berne Convention][this Treaty]:
(i)to remove or alter any electronic rights management
information without authority;
(ii) to distribute, import for distribution, broadcast or
communicate to the public, without authority, [works] or copies
of [works][fixed performances or phonograms] knowing that
electronic rights management information has been removed
or altered without authority. (Emphasis added; continues.)
M. Ficsor, Mangalia, August 25-27,
2010

12

The WIPO Internet Treaties on TPMs and RMI

Provisions of the Internet Treaties on TPMs and RMI

WCT Article 12 and WPPT Article 19 (contd.):
(2) As used in this Article, rights management information
means information which identifies the [work, the author of the
work][the performer, the performance of the performer, the
producer of the phonogram, the phonogram, the owner of any right
in the [work][performance or phonogram], or information about
the terms and conditions of use of the [work][performance or
phonogram], and any numbers or codes that represents such
information, when any of these items of information is
attached to a copy of a [work][performance or phonogram] or
appears in connection with the communication of [a work][a
fixed performance or a phonogram] to the public. (Emphasis
added.)
M. Ficsor, Mangalia, August 25-27,
2010

13

Implementation in the EU Information Society (Copyright) Directive

The EU Information Society (Copyright) Directive of 2001

(2001/29/EC) is based on the interpretation of the relevant norms of
the WCT and the WPPT that the requirement of adequate
protection of TPMs can only be duly fulfilled if the protection
extends for both access-control and copy-control TPMs
and against both acts of circumvention and preparatory
acts.
This follows not only from the text of the treaty provisions
but it is also confirmed by the documents of the negotiating
history. The treaty language proposals covered all kinds of TPMs
(not only access controls or only copy controls) and also
preparatory acts (unauthorized manufacturing and distributing
TPM-defeating devices, such as decoders).
Since actual circumvention of TPMs usually takes place in places
where detection and counter-measures are unrealistic, the
obligation to grant adequate protection for TPMs may only
be fulfilled in the stage of preparatory acts.
However, it was stressed
atMangalia,
the 1996
Diplomatic Conference 14
M. Ficsor,
August 25-27,
2010
by some delegations that TPM
protection should not be an

Implementation in the EU Information Society (Copyright) Directive

Basic TPM provisions of the Directive

Article 6(1) and (2)
1. Member States shall provide adequate legal protection against
the circumvention of any effective technological measures,
which the person concerned carries out in the knowledge, or with
reasonable grounds to know, that he or she is pursuing that
objective.
2. Member States shall provide adequate legal protection against
the manufacture, import, distribution, sale, rental,
advertisement for sale or rental, or possession for
commercial purposes of devices, products or components or
the provision of services which:
(a) are promoted, advertised or marketed for the purpose of
circumvention of, or
(b) have only a limited commercially significant purpose or
use other than to circumvent, or
M. Ficsor, Mangalia,
August 25-27,
(c) are primarily designed,
produced,
adapted or performed15
2010
for the purpose of enabling or facilitating the circumvention of, any

Implementation in the EU Information

Society (Copyright) Directive
Basic RMI provisions of the Directive
Article 7
1. Member States shall provide for adequate legal protection
against any person knowingly performing without authority
any of the following acts:
(a) the removal or alteration of any electronic rightsmanagement information;
(b) the distribution, importation for distribution,
broadcasting, communication or making available to the
public of works or other subject-matter protected under this
Directive or under Chapter III of Directive 96/9/EC from which
electronic rights-management information has been removed
or altered without authority, if such person knows, or has
reasonable grounds to know, that by so doing he is inducing,
enabling, facilitating or concealing an infringement of any
M. Ficsor, Mangalia, August 25-27,
copyright or any rights related to 2010
copyright as provided by law, or of16

Implementation in the
C.I.S. Model Copyright Law
The C.I.S. Model Copyright Law (Model Copyright Law of
November 18, 2005, of the Interparliamentary Assembly of
States-Participants of the Commonwealth of Independent States)
on TPMs.
The provisions of the Model Law are based also on the
interpretation of the WIPO Internet Treaties that all
kinds of TPMs (both access controls and copy
controls) and both actual acts of circumvention and
preparatory acts must be covered:
Article 46 - 46.

1. ,
M. Ficsor,
Mangalia,
August 25-27,

,
17
2010
,

Implementation in the
C.I.S. Model Copyright Law
The C.I.S. Model Copyright Law on TPMs:
Article 46 - 46. (contd.)
T ,
, (, ),
,

:
)

;
) ()

;
) ,


M. Ficsor, Mangalia, August 25-27,
18
.
. (Emphasis added.)
2010

Implementation in the
C.I.S. Model Copyright Law
The C.I.S. Model Copyright Law on RMI
Article 46 - 46:
2. , 1
,
,
,
, ,
:
)
;
) , ,
,

, ,

.
M. Ficsor, Mangalia, August 25-27,
(Emphasis added.)
19
2010

Implementation in the
C.I.S. Model Copyright Law
The C.I.S. Model Copyright Law on the independence of TPMs
- RMI protection from protection against actual acts of
infringements
The Model Law also contains an important clarification in
paragraph 3 of Article 46 (the paragraph 1 and 2 of which contain
provisions on TPMs and RMI protection, respectively, as quoted
above). It also follows from the of the TPMs - RMI provisions of the
WIPO Internet Treaties on the basis of their interpretation. Its
explicit statement, however, offers a useful guidance, in
particular concerning the relationship between protection
against unauthorized circumvention of TPMs and protection
against infringements of copyright and related rights:
3.
,

- .
M. Ficsor, Mangalia, August 25-27,
20
In English: 3. The provisions of2010
this article shall be applied

TPMs and exceptions

Provisions of the Information Society (Copyright) Directive
Article 6(4)
Notwithstanding the legal protection provided for in paragraph 1, in
the absence of voluntary measures taken by rightholders,
including agreements between rightholders and other parties
concerned, Member States shall take appropriate measures to
ensure that rightholders make available to the beneficiary of
an exception or limitation provided for in national law in
accordance with Article 5(2)(a) [reprographic reproduction], (2)(c)
[certain library and educational uses], (2)(d) [ephemeral recording by
broadcasters], (2)(e) [copying of broadcasts in social institutions], (3)
(a) [illustration for teaching; scientific research], (3)(b) [use by
people with disability] or (3)(e) [public security; official procedures]
the means of benefiting from that exception or limitation, to
the extent necessary to benefit from that exception or limitation
and where that beneficiary has legal access to the protected
M. Ficsor,
Mangalia, August
25-27,
work or subject-matter
concerned.
(Emphasis
added; continues.)21
2010

TPMs and exceptions

Provisions of the Information Society (Copyright) Directive
Article 6(4) (contd.)
Member State may also take such measures in respect of a
beneficiary of an exception or limitation provided for in accordance
with Article 5(2)(b) [private copying], unless reproduction for
private use has already been made possible by rightholders
to the extent necessary to benefit from the exception or
limitation concerned and in accordance with the provisions of
Article 5(2)(b) and (5) [Article 5(5) subjects the application of all
exceptions and limitations to the three-step test], without
preventing rightholders from adopting adequate measures
regarding the number of reproductions in accordance with
these provisions
The provisions of the first and second subparagraphs [see the
preceding slide and the first paragraph on this slide] shall not
apply to works or other subject-matter made available to the
public on agreed contractual
terms
in25-27,
such a way that
M. Ficsor, Mangalia,
August
22
2010
members of the public may access them from a place and at

TPMs and exceptions

Implementation of the provisons of Article 6(4) Information
Society (Copyright) Directive guranteeing the applicability of
key public-interest exceptions
The majority Member States apply mediation-arbitration
systems as such intervention measures. In general, the pessimistic
forecasts according to which the application and protection of
TPMs would not guarantee the applicability of important exceptions
and limitations have turned out to be unjustified.
An example: In Hungary, the intervention system also takes
the form of mediation-arbitration, for which the Copyright Experts
Council is competent. The system has been in force since May 1,
2004, the day of Hungarys accession to the European Union.
The number of disputes brought in front of the Council
during the more than five years, from May 1, 2004 until
M. Ficsor, Mangalia,
25-27,
August 20, 2010 (the completion
of August
this ppt
presentation ), because23
2010
beneficiaries have been unable to get access to works and objects of

0 (ZERO)

M. Ficsor, Mangalia, August 25-27,

2010

24

TPMs and exceptions

Another example: the US system (where there are three
catagories of exceptions to the prohibitions concerning technological
measures)
First category: section 1201(e) for law enforcement,
intelligence and other governmental activities. It is applicable
to the entire section 1201, while the other exceptions only
cover access control TPMs.
Second category; six specific exceptions concerning access
control (i) for non-profit libraries, archives and educational
institutions to circumvent access control TPMs solely for the
purpose of making a good faith determination as to whether they
wish to obtain authorized access to the works concerned (section
1201(d)); (ii) for reverse engineering (section 1201(f)); (iii) for
encryption research (section 1201(g)); (iv) for the protection of
minors (section 1201(h)); (v) for the protection of personal
privacy permitting circumvention
when
the
technological measure, 25
M. Ficsor, Mangalia,
August
25-27,
or the work it protects, is capable2010
of collecting or disseminating

TPMs and exceptions

The US system
Third category of exceptions to TPM prohibitions : The
provisions of Section 1201(a)(1)(B)-(E) establish an administrative
rule-making procedure to evaluate the impact of the
prohibition against the act of circumventing such accesscontrol measures. That prohibition only entered into force on 28
October 2000; two years after the enactment of the Digital Millennium
Copyright Act (DMCA) implementing the WIPO Internet Treaties in
the US . From the moment of its application, however, it is subject to
possible exceptions for users of works that are in a particular
class of works if they are, or are likely to be, adversely
affected by virtue of the prohibition in making non-infringing
uses. The applicability of such exception is determined through a
periodic rulemaking by the Librarian of Congress, on the
recommendation of the Register of Copyrights, who is to consult with
the Assistant Secretary of Commerce for Communications and
M. Ficsor, Mangalia, August 25-27,
Information.
26
2010

TPMs and exceptions

The US system
Under Section 1201(a)(1)(C), the following criteria should to be
taken into account for determining possible exceptions in the
rulemaking procedure: (i) the availability for use of works
protected by copyright; (ii) the availability for use of works for
non-profit archival, preservation and educational purposes;
(iii) the impact that the prohibition on the circumvention of
technological measures has on criticism, comment, news
reporting, teaching, scholarship or research; (iv) the effect of
circumvention of technological measures on the market for or the
value of copyrighted works; and (iv) such other factors as the
Copyright Office (Librarian) considers appropriate.
So far, three rulemaking procedures have been completed: in 2000,
2003, 2006 and 2010.
M. Ficsor, Mangalia, August 25-27,
2010

27

TPMs and exceptions

The US system
Under the recently (July 26) published 2010 list, the
following classes of works are exempt from the prohibition
against circumvention of access controls:
(1) Motion pictures on DVDs that are lawfully made and
acquired and that are protected by the Content Scrambling System
when circumvention is accomplished solely in order to
accomplish the incorporation of short portions of motion
pictures into new works for the purpose of criticism or
comment, and where the person engaging in circumvention
believes and has reasonable grounds for believing that
circumvention is necessary to fulfill the purpose of the use in
the following instances:
(i) Educational uses by college and university professors
and by college and university film and media studies
M. Ficsor, Mangalia, August 25-27,
students;
28
2010
(ii) Documentary filmmaking;

TPMs and exceptions

The US system
The 2010 list of exceptions to the prohibition of
circumvention of access controls (contd. exceptions also
allowing so-called jailbreaking of Apples iPods)
(2) Computer programs that enable wireless telephone
handsets to execute software applications, where
circumvention is accomplished for the sole purpose of enabling
interoperability of such applications, when they have been
lawfully obtained, with computer programs on the telephone
handset.
(3) Computer programs, in the form of firmware or software, that
enable used wireless telephone handsets to connect to a
wireless telecommunications network, when circumvention is
initiated by the owner of the copy of the computer program
solely in order to connect to a wireless telecommunications
M. Ficsor,
August
network and access to
theMangalia,
network
is25-27,
authorized by the
29
2010
operator of the network. (Continues.)

TPMs and exceptions

The 2010 list of exceptions to the prohibition of
circumvention of access controls (contd.)
(4) Video games accessible on personal computers and
protected by technological protection measures that control
access to lawfully obtained works, when circumvention is
accomplished solely for the purpose of good faith testing for,
investigating, or correcting security flaws or vulnerabilities,
if:
(i) The information derived from the security testing is used
primarily to promote the security of the owner or
operator of a computer, computer system, or computer
network; and
(ii) The information derived from the security testing is used
or maintained in a manner that does not facilitate
copyright infringement or a violation of applicable law.
(Continues.)
M. Ficsor, Mangalia, August 25-27,
2010

30

TPMs and exceptions

The 2010 list of exceptions to the prohibition of
circumvention of access controls (contd.)
(5) Computer programs protected by dongles that prevent
access due to malfunction or damage and which are
obsolete. A dongle shall be considered obsolete if it is no longer
manufactured or if a replacement or repair is no longer reasonably
available in the commercial marketplace; and
(6) Literary works distributed in ebook format when all
existing ebook editions of the work (including digital text
editions made available by authorized entities) contain access
controls that prevent the enabling either of the books readaloud function or of screen readers that render the text into
a specialized format. [Exception for blind or otherwise visually
impaired persons.]
M. Ficsor, Mangalia, August 25-27,
2010

31

THANK YOU FOR YOUR

ATTENTION

M. Ficsor, Mangalia, August 25-27,

2010

32