Jul 102013
 

padlockLast month, PIJIP asked people to recommend examples of domestic legal provisions regarding technological protection measures (TPMs) that include good protections of users engaged in lawful uses of copyrighted content. People suggested we look at the copyright laws of India, New Zealand, Switzerland, and Hong Kong, as well as proposed laws in Canada and Brazil.  The provisions from each appear below (there is an English-language description of the Brazilian proposal with a link to the original in Portuguese). We have also created an open google doc anyone can edit in case people would like to add other examples, or comment on any of the existing ones.

Examples of TPM legislation are relevant for current law reform processes going on in numerous countries, including Colombia, Peru, Chile and Brazil; as well as to trade negotiations concerning copyright, especially the TPP.

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India

The Copyright (Amendment) Act, 2012
65A. Protection of Technological Measures

(1) Any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act, with the intention of infringing such rights, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.
(2) Nothing in sub-section (1) shall prevent any person from:

(a) doing anything referred to therein for a purpose not expressly prohibited by this Act:
Provided that any person facilitating circumvention by another person of a technological measure for such a purpose shall maintain a complete record of such other person including his name, address and all relevant particulars necessary to identify him and the purpose for which he has been facilitated; or
(b) doing anything necessary to conduct encryption research using a lawfully obtained encrypted copy; or
(c) conducting any lawful investigation; or
(d) doing anything necessary for the purpose of testing the security of a computer system or a computer network with the authorisation of its owner; or
(e) operator; or
(f) doing anything necessary to circumvent technological measures intended for identification or surveillance of a user; or
(g) taking measures necessary in the interest of national security.

New Zealand

Copyright (New Technologies) Amendment Act 2008

226 Definitions of TPM terms

In sections 226A to 226E, unless the context otherwise requires,—

TPM or technological protection measure—

(a) means any process, treatment, mechanism, device, or system that in the normal course of its operation prevents or inhibits the infringement of copyright in a TPM work; but
(b) for the avoidance of doubt, does not include a process, treatment, mechanism, device, or system to the extent that, in the normal course of operation, it only controls any access to a work for noninfringing purposes (for example, it does not include a process, treatment, mechanism, device, or system to the extent that it controls geographic market segmentation by preventing the playback in New Zealand of a noninfringing copy of a work)

TPM circumvention device means a device or means that—

(a) is primarily designed, produced, or adapted for the purpose of enabling or facilitating the circumvention of a technological protection measure; and
(b) has only limited commercially significant application except for its use in circumventing a technological protection measure

TPM work means a copyright work that is protected by a technological protection measure.

226A Prohibited conduct in relation to technological protection measure

(1) A person (A) must not make, import, sell, distribute, let for hire, offer or expose for sale or hire, or advertise for sale or hire, a TPM circumvention device that applies to a technological protection measure if A knows or has reason to believe that it will, or is likely to, be used to infringe copyright in a TPM work.

(2) A person (A) must not provide a service to another person (B) if—

(a) A intends the service to enable or assist B to circumvent a technological protection measure; and
(b) A knows or has reason to believe that the service will, or is likely to, be used to infringe copyright in a TPM work.

(3) A person (A) must not publish information enabling or assisting another person to circumvent a technological protection measure if A intends that the information will be used to infringe copyright in a TPM work.

226B Rights of issuer of TPM work

(1) This section applies if a TPM work is issued to the public by, or under licence from, the copyright owner.

(2) The issuer of the TPM work has the same rights against a person who contravenes section 226A as a copyright owner has in respect of an infringement of copyright.

(3) The issuer of the TPM work has the same rights under section 122 (order for delivery up in civil proceedings) or 132 (order for delivery up in criminal proceedings) in relation to a TPM circumvention device as a copyright owner has in relation to an infringing copy.

(4) Sections 126 to 129 (which relate to certain presumptions) apply in relation to proceedings under this section.

(5) Section 134 (order as to disposal of infringing copy or other object) applies, with all necessary modifications, in relation to the disposal of anything that is delivered up under subsection (3).

226C Offence of contravening section 226A

(1) A person (A) commits an offence who, in the course of business, makes, imports, sells, distributes, lets for hire, offers or exposes for sale or hire, or advertises for sale or hire, a TPM circumvention device that applies to a technological protection measure if A knows that it will, or is likely to, be used to infringe copyright in a TPM work.

(2) A person (A) commits an offence who, in the course of business, provides a service to another person (B) if—

(a) A intends the service to enable or assist B to circumvent a technological protection measure; and
(b) A knows that the service will, or is likely to, be used to infringe copyright in a TPM work.

(3) A person (A) commits an offence who, in the course of business, publishes information enabling or assisting another person to circumvent a technological protection measure if A intends that the information will be used to infringe copyright in a TPM work.

(4) A person who commits an offence under this section is liable on conviction on indictment to a fine not exceeding $150,000 or a term of imprisonment not exceeding 5 years or both.

226D When rights of issuer of TPM work do not apply

(1) The rights that the issuer of a TPM work has under section 226B do not prevent or restrict the exercise of a permitted act.

(2) The rights that the issuer of a TPM work has under section 226B do not prevent or restrict the making, importation, sale, or letting for hire of a TPM circumvention device to enable—

(a) a qualified person to exercise a permitted act under Part 3 using a TPM circumvention device on behalf of the user of a TPM work; or
(b) a person referred to in section 226E(3) to undertake encryption research.

(3) In this section and in section 226E, qualified person means—

(a) the librarian of a prescribed library; or
(b) the archivist of an archive; or
(c) an educational establishment; or
(d) any other person specified by the GovernorGeneral by Order in Council on the recommendation of the Minister.

(4) A qualified person must not be supplied with a TPM circumvention device on behalf of a user unless the qualified person has first made a declaration to the supplier in the prescribed form.

(5) In this section,—

archive has the same meaning as in section 50(1)
archivist includes a person acting on behalf of the archivist
encryption technology means the scrambling and descrambling of information using mathematical formulae or algorithms
librarian includes a person acting on behalf of the librarian
prescribed library has the same meaning as in section 50(1).

(6) In this section and in section 226E, encryption research means identifying and analysing flaws and vulnerabilities of encryption technology.

226E User’s options if prevented from exercising permitted act by TPM

(1) Nothing in this Act prevents any person from using a TPM circumvention device to exercise a permitted act under Part 3.

(2) The user of a TPM work who wishes to exercise a permitted act under Part 3 but cannot practically do so because of a TPM may do either or both of the following:

(a) apply to the copyright owner or the exclusive licensee for assistance enabling the user to exercise the permitted act:
(b) engage a qualified person (see section 226D(3)) to exercise the permitted act on the user’s behalf using a TPM circumvention device, but only if the copyright owner or the exclusive licensee has refused the user’s request for assistance or has failed to respond to it within a reasonable time.

(3) Nothing in this Act prevents any person from using a TPM circumvention device to undertake encryption research if that person—

(a) is either—
(i) engaged in a course of study at an educational establishment in the field of encryption technology; or
(ii) employed, trained, or experienced in the field of encryption technology; and
(b) has either—
(i) obtained permission from the copyright owner or exclusive licensee of the copyright to the use of a TPM circumvention device for the purpose of the research; or
(ii) has taken, or will take, all reasonable steps to obtain that permission.

(4) A qualified person who exercises a permitted act on behalf of the user of a TPM work must not charge the user more than a sum consisting of the total of the cost of the provision of the service and a reasonable contribution to the qualified person’s general expenses.

Canada

Bill C-60

34.02 (1) An owner of copyright in a work, a performer’s performance fixed in a sound recording or a sound recording and a holder of moral rights in respect of a work or such a performer’s performance are, subject to this Act, entitled to all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right against a person who, without the consent of the copyright owner or moral rights holder, circumvents, removes or in any way renders ineffective a technological measure protecting any material form of the work, the performer’s performance or the sound recording for the purpose of an act that is an infringement of the copyright in it or the moral rights in respect of it or for the purpose of making a copy referred to in subsection 80(1).

(2) An owner of copyright or a holder of moral rights referred to in subsection (1) has the same remedies against a person who offers or provides a service to circumvent, remove or render ineffective a technological measure protecting a material form of the work, the performer’s performance or the sound recording and knows or ought to know that providing the service will result in an infringement of the copyright or moral rights.

(3) If a technological measure protecting a material form of a work, a performer’s per­formance or a sound recording referred to in subsection (1) is removed or rendered ineffective in a manner that does not give rise to the remedies under that subsection, the owner of copyright or holder of moral rights nevertheless has those remedies against a person who knows or ought to know that the measure has been removed or rendered ineffective and, without the owner’s or holder’s consent, does any of the following acts with respect to the material form in question:

(a) sells it or rents it out;
(b) distributes it to such an extent as to prejudicially affect the owner of the copyright;
(c) by way of trade, distributes it, exposes or offers it for sale or rental or exhibits it in public; or
(d) imports it into Canada for the purpose of doing anything referred to in any of paragraphs (a) to (c).

Switzerland

Loi fédérale sur le droit d’auteur et les droits voisins du 9 octobre 1992 (Etat le 1er janvier 2011)*

Art. 39a Protection of Technological Measures

1. Effective technological measures for the protection of works and other subject-matter may not be circumvented.

2. Are considered effective technological measures within the meaning of para.1 technologies and devices such as access and copy controls, encryption, scrambling and other transformational mechanisms designed for and suitable to prevent or restrict unauthorized use of works and other subject-matter.

3. Prohibited are the manufacture, import, offer, sale or other distribution, rental, extension of use to others, the advertisement for sale and the possession for commercial purposes of devices, products or components as well as the pr0ovision of services, which

a. are the subject of sales promotion, advertisement or marketing for the purpose of circumvention of technological measures;
b. have only a limited commercial purpose or use other than the circumvention of technological measures; or
c. are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of technological measures.

4. The prohibition of circumvention cannot be enforced against persons who undertake the circumvention for the sole purpose of a statutorily permitted use.

* [This is an unofficial English translation taken from Auf der Maur, Rolf, Kommentierung von Art. 33-39c URG, in: Müller/Oertli (Hrsg.), Stämpflis Handkommentar zum Urheberrechtsgesetz (URG), Bern 2012, p. 472.]

Hong Kong

Chapter: 528 Copyright Ordinance

Art. 273

TECHNOLOGICAL MEASURES AND GENERAL
Circumvention of effective technological measures

(Replaced 15 of 2007 s. 67)

(1) In sections 273A to 273H, “circumvent” (規避), in relation to an effective technological measure which has
been applied in relation to a copyright work- <* Note – Exp. X-Ref.: Sections 273A, 273B, 273C, 273D, 273E, 273F, 273G, 273H *>

(a) where the use of the work is controlled through the measure by the copyright owner of the work,
means to circumvent the measure without the authority of the copyright owner;
(b) where the use of the work is controlled through the measure by an exclusive licensee of the copyright
owner of the work, means to circumvent the measure without the authority of the exclusive licensee; or
(c) where the use of the work is controlled through the measure by any other person who, with the licence
of the copyright owner of the copyright work-

(i) issues to the public copies of the work;
(ii) makes available to the public copies of the work; or
(iii) broadcasts the work, or includes the work in a cable programme service,
means to circumvent the measure without the authority of that other person.

(2) For the purposes of this section and sections 273A to 273H, where a technological measure has been
applied in relation to a copyright work, the measure is referred to as an effective technological measure if the use of the work is controlled by any person referred to in subsection (1)(a), (b) or (c) through- <* Note – Exp. X-Ref.: Sections 273A, 273B, 273C, 273D, 273E, 273F, 273G, 273H *>

(a) an access control or protection process (including the encryption, scrambling and any other
transformation of the work) which achieves the intended protection of the work in the normal course of
its operation; or
(b) a copy control mechanism which achieves the intended protection of the work in the normal course of
its operation.

(3) In subsection (2)-

(a) “technological measure” (科技措施) means any technology, device, component or means which is
designed, in the normal course of its operation, to protect any description of copyright work;
(b) the reference to protection of a copyright work is to the prevention or restriction of acts which are done
without the licence of the copyright owner of the work and are restricted by the copyright in the work;
(c) the reference to use of a copyright work does not extend to any use of the work which is outside the
scope of the acts restricted by the copyright in the work.

Section: 273A:  Rights and remedies in respect of circumvention of effective technological measures
L.N. 141 of 2008 11/07/2008

(1) Subject to sections 273D and 273H, this section applies where an effective technological measure has been
applied in relation to a copyright work, and a person does any act which circumvents the measure, knowing, or having reason to believe, that he is doing an act which circumvents the measure.
(2) The following persons have the same rights and remedies against the person referred to in subsection (1) as
a copyright owner has in respect of an infringement of copyright-

(a) the copyright owner of the work;
(b) an exclusive licensee of the copyright owner of the work; and
(c) any other person who, with the licence of the copyright owner of the work-

(i) issues to the public copies of the work;
(ii) makes available to the public copies of the work; or
(iii) broadcasts the work, or includes the work in a cable programme service.

(3) The rights and remedies conferred by subsection (2) on the copyright owner, the exclusive licensee and the
person referred to in subsection (2)(c) are concurrent.

(4) Sections 112(3) and 113(1), (4), (5) and (6) apply, with the necessary modifications, in proceedings in
relation to the copyright owner, the exclusive licensee and the person referred to in subsection (2)(c), as they apply in proceedings in relation to a copyright owner and an exclusive licensee with concurrent rights and remedies.

(5) Sections 115, 116 and 117 (presumptions as to certain matters relating to copyright) apply, with the
necessary modifications, in proceedings instituted under this section, as they apply in proceedings instituted under Part II (copyright).

[ …]

Section 273 D – Exceptions to 273 D

(1) Section 273A does not apply to an act which circumvents an effective technological measure if-

(a) the measure has been applied in relation to a computer program;
(b) the act is done with respect to the identification or analysis of particular elements of the computer
program that are not readily available to the person who does the act;
(c) the act is done for the sole purpose of achieving interoperability of an independently created computer
program with the computer program or another computer program;
(d) the copy of computer program in relation to which the act is done is not an infringing copy; and
(e) the act of identification or analysis referred to in paragraph (b) does not constitute an infringement of
copyright.

(2) Section 273A does not apply to an act which circumvents an effective technological measure if-

(a) the act is done by or under the authority of the owner or operator of a computer, computer system or
computer network; and
(b) the act is done for the sole purpose of testing, investigating or correcting a security flaw or
vulnerability of the computer, computer system or computer network, as the case may be.

(3) Section 273A does not apply to an act which circumvents an effective technological measure if the act is
done for the sole purpose of research into cryptography and-

(a) where the research is conducted by or on behalf of a specified educational establishment, or for the
purposes of giving or receiving instruction in a specified course of study in the field of cryptography
provided by a specified educational establishment-

(i) the research does not constitute an infringement of copyright;
(ii) it is necessary for the act to be done in order to conduct the research; and
(iii) the information derived from the research is not disseminated to the public except in a specified
manner; or

(b) in any other case-

(i) the research does not constitute an infringement of copyright;
(ii) it is necessary for the act to be done in order to conduct the research; and
(iii) the act or the dissemination to the public of information derived from the research does not affect
prejudicially the copyright owner.

(4) In subsection (3)-

“specified educational establishment” (指明教育機構) means-

(a) an educational establishment specified in section 4, 6, 7, 8, 9, 12, 14 or 15 of Schedule 1; or
(b) Hong Kong Shue Yan University registered under the Post Secondary Colleges Ordinance (Cap 320);

“specified manner” (指明方式), in relation to the dissemination to the public of information derived from a research into cryptography-

(a) means a manner which is reasonably calculated to advance the state of knowledge or development of
cryptography or related technology; and
(b) includes dissemination of the information in a journal or at a conference the target readers or audiences of which are primarily persons engaged in, or pursuing a course of study in, the field of cryptography or related technology.

(5) Section 273A does not apply to an act which circumvents an effective technological measure if-

(a) the measure, or the copyright work in relation to which the measure has been applied, has the
capability to collect or disseminate personally identifying information which tracks and records the
manner of a person’s use of a computer network without providing conspicuous notice of such
collection or dissemination to the person;
(b) the act is done for the sole purpose of identifying or disabling the function of the measure or work, as
the case may be, in collecting or disseminating personally identifying information; and
(c) the act does not affect the ability of any person to gain access to any work.

(6) Section 273A does not apply to an act which circumvents an effective technological measure if-

(a) a person does the act when using a technology, product or device; and
(b) the sole purpose of the technology, product or device, as the case may be, is to prevent access of
minors to harmful materials on the Internet.

(7) Section 273A does not apply to an act which circumvents an effective technological measure if

(a) the measure has been applied in relation to a copyright work of any description issued to the public in a
physical article;
(b) the measure contains regional coding or any other technology, device, component or means which has
the effect of preventing or restricting access to the work for the purpose of controlling market
segmentation on a geographical basis;
(c) the act is done for the sole purpose of overcoming the regional coding, technology, device, component
or means, as the case may be, contained in the measure so as to gain access to the work; and
(d) the copy of the work in relation to which the act is done-

(i) is not an infringing copy; or
(ii) if it is an infringing copy, is an infringing copy by virtue only of section 35(3) and was lawfully
made in the country, territory or area where it was made.

(8) Section 273A does not apply to an act which circumvents an effective technological measure if-

(a) the measure has been applied in relation to a copy of any description mentioned in section 50(1), 51(1)
or 53;
(b) the act of circumvention is done by the librarian or archivist of a specified library or archive; and
(c) the act is done for the sole purpose of the doing of any of the acts permitted under sections 50, 51 and
53.

(9) Section 273A does not apply to an act which circumvents an effective technological measure if the act is
done by, or on behalf of, law enforcement

Brazil

I did not find an English version of the Brazilian proposed law. The official version in Portuguese is here:
http://www.planalto.gov.br/ccivil_03/leis/l9610.htm

And a paper by Skyler Sourifman describes it like this:

“To summarize, the proposal states that circumvention is not illegal, as long as the actor is not committing a copyright violation. In other words, circumvention by itself does not constitute infringement. Rather, there is a nexus between access and infringement; the act of circumvention must be done to facilitate copyright infringement in order for there to be a violation. Furthermore, any rights holder who imposes TPMs on works that are not protected by Brazilian copyright laws (such as works in the public domain and fair use of works) will be penalized.”

(“Legal Lock-Picking: An Analysis of Anti-Circumvention Law in the United States and Brazil” CARDOZO J. OF INT’L & COMP. LAW, Vol. 20 – see page933)

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