Thursday, 23 November 2006
It’s always interesting when, simultaneously with law reform here, something happens overseas.
At the moment, Australia is drafting its own OzDMCA. The Bill is due to pass Parliament next week. Australia has drafted a series of legislative exceptions to the laws that ban people from ‘hacking’ (circumventing) DRM (technology used by copyright owners to prevent access/copying of copyright works). It has also issued draft regulations that will create more exceptions to the ban on circumventing access controls. Australia has also instituted a system where exceptions will be able to be sought on an ad hoc basis, when a problem arises.
In the US, every 3 years, the Copyright Office considers whether new exceptions to the ban on circumventing access controls (17 USC 1201) is required. Yesterday, US time, the US Copyright Office issued its third rulemaking on ad hoc exceptions to the ban, under US law, on circumventing access controls on copyright works. They’ve made quite a few recommendations. A list, and comments, over the fold.
So here’s the list (with my headings inserted):
- The Film Professor’s exception: Audiovisual works included in the educational library of a college or universityâ€™s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.
- The abandonware/archiving exception: Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.
- The obsolete/malfunctioning dongles exception: 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.
- The disabled access to ebooks exception: 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 bookâ€™s read-aloud function or of screen readers that render the text into a specialized format.
- The mobile phone network locking exception: Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.
- The Sony Rootkit exception: Sound recordings, and audiovisual works associated with those sound recordings, distributed in compact disc format and protected by technological protection measures that control access to lawfully purchased works and create or exploit security flaws or vulnerabilities that compromise the security of personal computers, when circumvention is accomplished solely for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities.
For US commentary on the exceptions, see:
- William McGeveran (Harvard) (good for film profs)
- Electronic Frontiers Foundation (bad for consumers)
- Jennifer Granick (yay on cellphone locking!)
- Howard Knopf (Canadian perspective)
- Public Knowledge (the Copyright Office has shifted its approach!)
What’s interesting from the Down Under perspective? Well, here are some initial thoughts.
Once again, one of the emphases of this rulemaking is on obsolete, or malfunctioning DRM. And once again, I wonder why, oh why, such DRM isn’t just excluded from protection. Regardless, note that the Australian draft regulations do contain such two exceptions covering this ground. Australians will be allowed to circumvent access controls for the following purposes:
(j) the gaining of access to copyright material to which a technological protection measure has been applied if
(i) the technological protection measure is not operating normally; and
(ii) a replacement technological protection measure is not reasonably available;
(k) the gaining of access to copyright material that is protected by a technological protection measure that interferes with or damages a product in which it is installed (the host product) or another product used in conjunction with the host product:
(i) to prevent damage, or further damage, to the host product or another product by the technological protection measure; or
(ii) to repair the host product or another product (if circumvention of a technological protection measure is necessary to enable the repair to be carried out).
Notably, our exception, though almost incomprehensible in its drafting, is broader:
- it is not confined to films and sound recordings
- it is not specific on exactly how the DRM must be interfering with the product. The US Copyright Office exception is confined to situations in which ‘create or exploit security flaws or vulnerabilities that compromise the security of personal computers’. Any other kind of damage to your computer wouldn’t be covered by the US version, but would be covered by ours.
So here’s your homework boys and girls: is a mechanism, used to lock a physical cell phone to a particular mobile phone network, (a) protected by our laws (have a look at the exclusions from ‘access controls’, and the definition of access controls), and (b) if it is, is there an exception (maybe interoperability…?). Interesting.
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