Diverting from the thread topic a bit, I note that the UK language
supplied by Karen indicates that the UK did a better job than the US
in fulfilling the WIPO treaty obligations in its domestic legislation
with respect to circumvention of technological measures.
The relevant WIPO treaty language requires protection against circumvention of technological measures used “in connection with the exercise of their rights . . . and that restrict acts . . . which are not authorized by the performers . . . concerned or permitted by law.”
The US prohibits circumvention of measures that restrict acts not authorized by the copyright owner even if permitted by law, and even if not used in connection with the exercise of their rights.
The UK prohibits circumvention of measures that restrict acts not authorized by the copyright owner, but if those acts are permitted by law, the restricted person may complain about it to the Secretary of State.
The best solution is that the DMCA should only prohibit the circumvention of technological measures that pertain to copyrights and restrict acts that have not been authorized by the copyright owner or by law (such as in Sections 107-122), thereby ensuring that copyright owners will not make their technological measures circumventable by restricting noninfringing acts.
John
On Feb 14, 2006, at 3:24 PM, Karen Coyle wrote:
> John T. Mitchell wrote:
>
>> Today, thanks to digital engineering, it is quite possible for
>> copyright owners to infringe upon the fair use rights of others
>> by various feats of engineering, so logically, anyone whose right
>> of fair use is impaired by the copyright owner should have a
>> right of action. Thus, if one is sue for copyright infringement,
>> I agree that the plaintiff would bear the burden of proving it is
>> infringing, which includes the burden of eliminating the fair use
>> "defense" if raised (though the defendant would have the burden
>> of coming forward with evidence of fair use). But if a plaintiff
>> sued a copyright owner for a declaratory judgment of fair use, or
>> for an injunction against the copyright owner's prevention of
>> fair use, then it would seem that the burden would be on the
>> plaintiff to prove that the copyright owner was indeed unlawfully
>> preventing fair use, including the burden of proving fair use.
>>
>>
> This seems to be addressed in UK copyright law:
>
> 296ZE Remedy where effective technological measures prevent
> permitted acts
> ...
>
> (2) Where the application of any effective technological measure to
> a copyright work
> other than a computer program prevents a person from carrying out a
> permitted act
> in relation to that work then that person or a person being a
> representative of a class
> of persons prevented from carrying out a permitted act may issue a
> notice of
> complaint to the Secretary of State.
> ...
>
> kc
>
> --
> -----------------------------------
> Karen Coyle / Digital Library Consultant
> kcoyle@kcoyle.net http://www.kcoyle.net
> ph.: 510-540-7596
> fx.: 510-848-3913
> mo.: 510-435-8234
> ------------------------------------
>
>
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Received on Wed Feb 15 2006 - 21:25:00 GMT
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