Anti-circumvention Rules in the Information Network Environment in the US, UK and China: A Comparative Study

• Author: Jia Wang
• Position: Stellenbosch University School of Law, West Cape, South Africa jajaishere@yahoo.co.uk
• Pages: 55-67

Key word: intellectual property law, copyright, technological measures, anti-circumvention law, China

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1. Introduction

Circumventing technology is not new. Circumventing technologies and devices have been employed to decrypt digital versatile discs (DVDs), ¹ Software 2 and to circumvent many other digital products.² Circumvention is increasing rapidly, particularly in the information network environment.³ Copyright holders reproach consumers and users for circumventing technological barriers meant to prevent unauthorized or unlawful use of copyrighted material.⁴ At the same time, copyright holders are criticized for controlling access to their works which restricts the public's access to information, stifles fair use and excludes the application of copyright law.⁵ Therefore, copyright law serves as a balance between copyright proprietors and the public as it demarcates the legitimate line for circumvention and anti-circumvention acts and devices. Technology can enforce copyright law, but it should not compete or replace the law.⁶ It thus requires the deliberations of legislators to adjust and create innovative anti- circumvention rules that address digital technology and information network challenges.

Anti-circumvention rules are considered to be a substantial extension of copyright protection because they extend legal protection to the technological area of copyright protection.⁷ Therefore, to understand and to establish pragmatic anti-circumvention rules is particularly important for a developing country such as China. One of China's legislative tasks is to incorporate anti-circumvention rules into its intellectual property law in order to have an effective copyright protection mechanism that deals fairly with actors in the information network.⁸ Not only China, but other developing countries also need to confront and deal with this problem. China's legislative experience in this area can serve as a valuable example to other developing countries.

This paper analyzes the Chinese anti-circumvention rules with particular reference to the information network environment by comparing the Digital Millenium Copyright Act ¹⁰(hereafter referred to as DMCA), the European Copyright Directive ¹¹(hereafter referred to as EUCD) and pertinent Chinese legislation. This is done in five sections. First, there is a brief examination of the nature of anti-circumvention rules in order to provide a theoretical foundation for the study. Here relevant digital technologies are explained. Second, four aspects of the relationship between the DMCA and the CDPA are compared as reference points for the analysis that follows on China's anti-circumvention rules. Third, there is a review of China's anti-circumvention rules in the current legislation, namely the Copyright Act 1990,¹² two Regulations and a judicial interpretation.¹³ This is followed with a comparison of four aspects of the Regulations on the Protection of the Right of Communication via Information Network¹⁴ (hereafter referred to as Network Regulation) with references to the DMCA and the CDPA. Fourth, a tentative recommendation is made for a possible further redrafting of the Chinese anti-circumvention rules. This is followed with a summarizing conclusion.

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2. The Digital Technologies and Anti-circumvention Rules'

Technological measures for information protection are based on cryptography and other technical measures ¹⁵,which attempt to control or restrict access or reproduce digital media content with electronic devices.¹⁶ Widely used digital rights management (DRM) contains such technological measures as digital encryptions, virtual containers and watermarks.¹⁷

Once the threshold of digital technology was crossed, the reproduction of copyright materials became instantaneous and almost costless. The information network, particularly the Internet, is a powerful means that facilitates the dissemination of information.¹⁸ Circumventing technology is also disseminated, thus making copyright holders vulnerable to piracy and other copyright infringements.¹⁹ Therefore, on the one hand, technological measures are believed to be advantageous in monitoring the reproduction of illegal copies and controlling rampant piracy.²⁰ On the other hand, technological measures are criticized for contributing to the privatization of information regardless of the statutory protection period²¹ and undermining the copyright law in the sense that fair use cannot be fully recognized and enforced. Consequently there is a decrease in the dissemination of information.²²

Anti-circumvention rules belong to the copyright law system. The copyright law's utilitarian goal of promoting knowledge is widely acknowledged as a principle by national laws and international treaties.²³ Anticircumvention rules, functioning as a component of copyright law, also promote public learning and encourage innovation. Copyright law adapts to technology developments.²⁴ Over the most recent decade, anti-circumvention rules have become a controversial issue amongst scholars, copyright holders and the public.²⁵ The anti-circumvention provision first appeared in the WIPO Treaties 1996²⁶ and was first implemented by the US in the DMCA 1998. In 2001, the European Union enacted the European Copyright Directive²⁷ that also contained anti-circumvention rules. The United Kingdom amended its Copyright, Designs and Patents Act²⁸(hereafter referred to as CDPA)in 2003 to bring the EUCD into its domestic legislation.²⁹ In particular, section 296 was amended to contain the anti-circumvention provisions. China revised its Copyright Act in 2001 for accession to the World Trade Organization (WTO)³⁰ in which a general anti-circumvention rule is included. A supplementary provision of the Copyright Act states that regulations for the protection of computer software and the right to communicate information via a network is to be established separately by the State Council.³¹ In 2002, the Regulations on the Protection of Software³² (hereafter referred to as Software Regulation) came into force with a nearly identical rule.³³ The Network Regulation issued in 2006 implemented the anti-circumvention rule with concrete provisions.³⁴ Most recently, China ratified the WIPO Treaties on December 29, 2006. Further legislative reform on copyright law, including anti-circumvention rules, is imminent.

3. Comparison of the Anti-circumvention Rules in the United States and United Kingdom

The US has been a pioneer in bringing the anti-circumvention rules contained in the WIPO treaties into its domestic legislation. Due to pressure brought by the US, the EUCD was formed after the DMCA. Although their rules are somewhat similar, there are major differences between the US and the European Union approaches. The EU member states basically followed the EUCD approach, but different nations construed the anti-circumvention rules with different provisions.³⁵ Among these countries, the United Kingdom serves as an example of national implementation of anti-circumvention rules.

In the amended CDPA, copyrighted software is treated differently from other digital copyrighted works in order to follow the requirements of the Software Directive.³⁶ Additional provisions that relate to other digital copyrighted works are a new area for the digital copyright law.³⁷ These additional provisions are analyzed as follows.

3. 1 The Definition of an "Effective Technological Measure"

In general, both the DMCA and the CDPA divide technological measures into two categories: 1) technological measures that control access to a work; and (2) technological measures that control the copy of a work.³⁸ The DMCA has defined an effective technological measure as one that effectively controls access to a work as being the application of information, or a process, or a treatment requiring the copyright owner's authority to gain access.³⁹ The CDPA stipulates an effective technological measure as one could control access and copy.⁴⁰

In comparing the two provisions, a notable difference is that the DMCA grants absolute protection to the access-control technological measures and partial protection to copy-control technological measures, while the CDPA grants protection to both types of technological measures.⁴¹ Common to both is that any material can be protected by technological measures, regardless of copyrightability.⁴² Case law also illustrates this.⁴³

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3. 2 The Circumstances under which Violation of Anti-circumventing Rules Lead to Liabilities

The two legislation contain circumventing-act prohibition and device prohibition. They both adopt the approach of assigning liabilities on the basis of violation of technological measures rather than on the basis of an infringement of a copyright. This differs from the liability norm set in the Berne convention.

Four major differences are observed. First, in the DMCA liabilities are triggered simply with the violation of technological measures,⁴⁴ while in the CDPA the liability trigger is "intention" and "knowledge".⁴...