The protection scheme
As required by EUCD Article 6, the White Paper proposes a twofold protection scheme for technological protection measures used by right holders to protect their works (and other subject matter): partly, it prohibits (the act of) circumvention of such measures; partly, it bans certain preparatory acts of trafficking in circumvention devices. (Additionally, the proposal contains a provision protecting rights management information, cf. EUCD Article 7, but this provision will not be treated here).

Protected measures
The proposal does not include any statutory definition of "technological measures". However, it is made clear that anti-circumvention protection only applies to measures that are used in order to control either the making of copies or the making available to the public of a protected work. This delimitation of protected measures is not coincidental: The said acts coincide with those defining the copyright holder’s exclusive rights under Norwegian copyright law; hence they are referred to in the preparatory report as "copyright relevant acts". The delimitation of the anti-circumvention protection to measures that control "copyright relevant acts" reflects one of the Ministry’s overall intentions, namely to tie the protection as close as possible to the contours of the copyright monopoly, without disrespecting the EUCD-requirements.

EUCD Article 6.3 defines "technological measures" as measures that in the normal course of their operation, are designed to prevent or restrict acts "not authorized by the rightsholder". From this express reference to an authorization, the Norwegian Ministry deducts that Article 6.3 only encompasses measures controlling acts covered by the copyright monopoly (!). Arguably, this is not a "waterproof" deduction, but the reasoning (of the Ministry) is as follows: For the right holder to be in a position to authorize certain uses, such uses must somehow have been made subject to her supremacy. Relevant in this relation is (in the Ministry’s view) only the monopoly granted to her qua copyright holder. Thus, (again in the view of the Ministry) protection is required by the EUCD only where measures are used to regulate conduct that falls within the ambits of the statutory monopolized acts.

This means that a measure that regulates conduct outside the ambits of the statutory monopolized acts (e.g. performance of a work within the private sphere), cannot itself constitute the basis for anti-circumvention protection. It also means that "copyright relevance", in the sense just described, cannot be gained through monopolizing an act by contract.

It should be pointed out that, whereas the said definition of "copyright relevant acts" implies a demarcation towards acts that neither can be classified as copy making nor making available to the public, it does not exclude acts that fit such a classification, but nevertheless positively have been lifted out of the copyright monopoly (through copyright exceptions). If, for instance, a measure merely controls private copying – a conduct exempted from the Norwegian copyright monopoly through a statutory exception – it will still fall within the sphere of protected measures, since the conduct as such (copy making) falls within the ambit of one of the monopolized acts (copy making). This is slightly different when it comes to the exclusive right to make available to the public, since there, the monopolized act itself is delimited to the public sphere.

One very important modification has to be made to the just described point of departure: Technological measures applied in order to protect "copyright relevant acts", but which also control conduct outside the statutory monopolized acts (e.g. private performance), shall still be protected. In other words, the additional feature of usage rules controlling non-"copyright relevant" acts shall not disqualify the measure as such from protection (as long as it also is aimed at controlling a "copyright relevant" act). If, for instance, a copy control mechanism at the same time blocks playback of a work within the private sphere, it will still – in principle – be within the sphere of protected measures. However, as we shall see just below, a special exemption is introduced as to enable private enjoyment.

Right to circumvent to enjoy within private sphere on "relevant playback equipment"
Even though such "combined" measures fall within the sphere of protected measures, one important – and, compared to the text of the EUCD, rather innovative – modification is made as to the scope of protection in this regard: If a "combined" measure hinders what is called "enjoyment within the private sphere" of a copy of a work, the consumer may circumvent the measure in order to "enjoy" the work on what is called "relevant playback equipment". The preparatory report accentuates, that this is not a delimitation of the sphere of protected measures, but rather a limited exception to the ban of circumvention: Even though the measure as such is protected, the consumer may lawfully circumvent in order to pursuit this specific purpose.

Of course, the provision raises the question of which equipment shall be deemed as "relevant". According to the initial preparatory report, the relevance is relative to the format in which the work has been lawfully acquired. In the end, according to the initial preparatory report, one must ask which expectations as to playback equipment the consumer reasonably may have with respect to a given type of product. Using a musical work as example, the initial preparatory report stated that circumvention of a technological measure applied on a musical CD would be lawful if needed in order to play the CD on a CD player, but not if the purpose was a conversion into MP3. In other words MP3 players were not to be considered "relevant playback equipment" as to the musical files on a CD. As a curiosity; this last exemplification in the initial preparatory report (of an exception to an exception) has resulted in the proposal being named "the MP3 Act" in the Norwegian public debate.

While writing this article, the first division hearing in the Parliament has passed with a majority voting against the Ministry’s proposal to exclude MP3-players as relevant playback equipment for music files on a CD. Thus, as it looks at the moment, circumvention will be lawful if necessary in order to convert the music files on a CD into MP3 (or similar formats).

The scope of the said "right to circumvent" is narrowed down considerably by an additional clarification made in the preparatory report: If a digital file is made available on-demand through a digital network and the parties in this connection agree as to which media-player can be used to experience the file, that contractual regulation shall determine what shall be deemed "relevant playback equipment". In other words, when it comes to such services, the "relevance" of playback equipment shall be subject to contractual freedom. After this, the said "right to circumvent" is, in practice, reduced to situations where the copy of the work is distributed on a physical carrier (e.g. a CD or DVD) or online-but-not-on-demand. Statements during the Parliament hearing indicate that the scope of the exception might be further narrowed down to comprise conversion from CD to MP3 only.

The said "right to circumvent" in order to enable private playback within the private sphere must also be seen in relation to another amendment proposed in the White Paper: The existing freedom of users, under Norwegian law, to make copies of works for private use purposes, is upheld. However, it is made subject to one additional qualification: Private-use-copying shall be allowed only where based on a so-called "lawful source of copying". This means that the copy or transmission, upon which the reproduction is based, must be lawful; it must have been produced or made available in accordance with a permission by law or by the right holder(s) concerned. In the absence of such authorisation, for instance if a work has been illegally uploaded to the Internet or made available through a p2p-network, the source will not be lawful and may hence not serve as the basis for (lawful) private-use-copying. It is made clear in the White Paper, that if any copies should be made in connection with, or as a result of, the performance of the said "right to circumvent", such copies shall not be regarded a "lawful source of copying". Thus no further copies may (lawfully) be made on such a basis.

"Interface" towards copyright exceptions
As required by EUCD Article 6.4, the White Paper also contains an express "interface" towards certain copyright exceptions. The copyright exceptions covered regard certain uses related to teaching, recording for use by health institutions, retirement homes, prisons etc., libraries, museums and archives, disabled persons, ephemeral recordings and public negotiations, document inspection, interrogation and evidence. The option of creating an "interface" for the private copying exception has so far not been used. In accordance with Article 6.4 fourth paragraph, the "interface" shall not apply where a protected work is being made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them (the so-called on demand services).

The proposed "interface" places an obligation upon right holders to respect the concerned copyright exceptions while designing their technological measures. However, the question of how right holders shall enable required uses can be regulated through contracts between the parties. If the right holder does not voluntarily enable the use required by the relevant exceptions, Sect. 53b second paragraph provides the following failsafe mechanism, which can be triggered by the beneficiary (unofficial translation):

“If the right holder, after a request from a beneficiary under the abovementioned provisions, does not grant such access as mentioned in the first paragraph, he may, upon the beneficiary’s request, be ordered to provide the information or other assistance needed to obtain utilization of the work in accordance with the purpose. Requests shall be presented to a committee appointed by the Ministry according to procedures established by the Government. The committee may, in addition to such order as mentioned, decide that a beneficiary under the mentioned provisions unhindered of Sec. 53a [the proposed ban of circumvention] shall be allowed to circumvent applied technological measures if the right holder fails to comply with the order within the time limit decided by the committee.”

Indeed, this provision empowers the beneficiary with an effective means to enforce her copyright exception privileges – even against the will of the right holder. The beneficiary may well negotiate with the right holder about these matters, but she can always fall back on claiming the copyright law solution to be enforced. Upon her request, such enforcement will be carried out. This is done primarily by obliging the right holder to provide, within a defined time limit, the information or other means needed in order to use the work as defined in the relevant copyright exception. Subsidiary, this is done by permitting the consumer to circumvent the measure if the right holder fails to do so. Thus, ultimately, the Norwegian "interface" grants a right to circumvent. And – perhaps even more importantly – it lies with the consumer to trigger this right.

Bottom line
The proposed Norwegian implementation of EUCD Article 6 links the definition of protected measures directly to the acts monopolised by copyright law: as the point of departure, only measures that are used for the purpose of controlling so-called "copyright relevant acts" are protected. Further, the ban shall not apply to acts of circumvention that are needed in order to enjoy the work within the private sphere on so-called "relevant playback equipment". The proposed "interface" obliges right holders to respect the relevant copyright exceptions while shaping their technological measures. If they do not do so, the beneficiary can file a complaint to a specialist tribunal empowered with the authority to – ultimately – grant a permission to circumvent.

Arguably, the Norwegian Ministry has all in all adopted a balanced – though perhaps controversial – interpretation of Article 6. Whereas the EUCD itself, by some, would be described as rather "toothless" when it comes to offering real protection to the consumer-side, the Norwegian proposal certainly puts power behind the good intentions in this regard.

Sources

About the author: Thomas Rieber-Mohn has prior experience as an IPR-lawyer in Norway and is currently a doctoral research fellow at the Norwegian Research Center for Computers and Law, Faculty of Law, University of Oslo, where he is working on a PhD project on copyright, DRM and anti-circumvention laws. Contact: Thomas.rieber-mohn@jus.uio.no

Status: first posted 10/06/05; included in INDICARE Monitor Vol. 2, No. 4, 24 June 2005; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=111