Re: WIPO Copyright Treaty Article 11 & Grammar

Just to add more fuel to the debate, I thought you all might be interested in a section of the 1988 UK Copyright, Designs and Patents Act, which reads as follows:

s296:
(1) This section applies where copies of a copyright work are issued to
the public, by or with the licence of the copyright owner, in an electronic form which is copy-protected.

(2) The person issuing the copies to the publichas the same rights
against a person who, knowing or having reason to believe that it will be used to make infrining copies -

     (a) makes, imports, sells or lets for hire, offers or exposes for sale or hire, or advertises for sale or hire, any device or means specifically designed or adapted to circumvent the form of copy-protection employed, or

     (b) publishes information intended to enable or assist persons to circumvent that form of copy protection, as a copyright owner has in respect of an infringement of copyright.

(3) Further he has the same rights under section 99 or 100 (delivery up
or seizure of certain articles) in relation to any such device or means which a person has in his possession, custody or control with the intention that it should be used to make infringing copies of copyright works, as a copyright owner has in relation to an infringing copy.

(4) References in this section to copy-protection include any device or
means intended to prevent or restrict copying of a work or to impair the quality of copies made.

Admittedly this section was written with other media in mind other than the Internet (which wasn't then the issue it has proved to be now) but it can arguably be applied to implementation of the WCT Article 11.

One other point is that it makes no mention of the copy potection having to be 'effective'. I have a problem with the possible ramifications of using this phrase, as JQ Johnson mentioned in an earlier posting, if a technological measure is toally effective then this gives the copyright owner complete control over the work, excluding fair use. Once you allow a loophole in the technological measure for the fair use of the work, the protection could no longer be said to be completely effective. So how do you allow for the fair use of a work?

And just a final point, again, relating back to the same posting by JQ Johnson, I don't think the purple suit analogy is invalid, as several forms of technological protection do not prevent copying; it is much easier to prevent _access_ than it is to prevent _copying_ of a work. Protection like encryption and password protection do not necessarily prevent you from copying a work, for example, if you use encryption to protect a work, then you can copy it as many times as you like, it's just that unless you decrypt the document, all the copies remain as meaningless jumble.

Ewan Kirk

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Law Research Centre
Faculty of Law
Southampton Institute, East Park Terrace, Southampton SO14 0YN (UK)
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Ewan.J.Kirk[_at_]solent.ac.uk