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Locksmiths
and Safecrackers in Cyberspace
David J Brennan*
Abstract
Contained in Australia's Digital Agenda Reforms is a new regime which
proscribes the circumvention of technological measures protecting
copyright subject
matter. Similar provisions have already been enacted in the United States
Digital Millennium Copyright Act 1998.
European Union countries may shortly be
subject to a directive that they provide adequate legal protection against the
circumvention
of such technological measures. This article, with a focus upon
the Australian position, explores how the fair dealing exception
to copyright
should relate to this new copyright law.
Introduction
1. On
17 August 2000 the Copyright Amendment (Digital Agenda) Act 2000
("the Digital Agenda Reforms") was passed by the Australian
Parliament. Contained within it were two new provisions (added to the
existing
Part V of the Copyright Act 1968) which created new civil and criminal liability
for the supply of circumvention devices or circumvention services.[1] "Circumvention" is a
relatively new term in copyright lexicon. It is a short-hand way to describe
the breaking of a technological
lock placed upon copyright subject matter. Such
locks (whether they be password-protected access controls, a hardware device
such
as a cable television "black box", digital encryption of data or
something else) are essentially self-help measures. They are technological
measures to ensure that access to copyright subject matter is only authorised
by the content provider, on terms set down by it.
2.
Some argue that this new branch of copyright law (the creation of liability for
circumventing such technological measures)
will be a critical feature in the
digital age.[2] Others have acknowledged
that social norms may be a more important determinate:
"It's a fair assumption that the eternal arms race between
safecrackers and locksmiths is never going to be won by one side or the
other.
So long as the general public believes that private copying for non-commercial
use is not wrong in the digital environment,
it is simply a given that we will
see the immediate uploading and free downloading of best-selling novels, music,
and - once the
bandwidth is there - theatrical motion pictures by millions of
people."[3]
In any event, concerns have been expressed as to what scope there will
be for existing exceptions (particularly fair dealing) if all
copyright subject
matter is protected by technological measures, the circumvention of which is
illegal.
3.
This article will examine the evolution of the anti-circumvention provisions in
Australia as a prologue to this country's
accession to the World Intellectual
Property Organisation (WIPO) Copyright Treaty of 1996 and the tension
between fair dealing and these new provisions.
Fair
Dealing
(i)
Background
4.
Fair dealing is a free exception to the exclusive rights attached to copyright.
The scope of the exception is exhaustively[4]
circumscribed by four purposes, of which at least one must apply to an activity
for the activity to attract the fair dealing exception.
The four purposes are:
research or study, criticism or review, reporting of news, and professional
advice given by a legal practitioner
or patent attorney.[5] In respect of "research or study" a list of criteria
apply to help assess the "fairness" (or otherwise) of the dealing.
These are:
(a) the purpose and character of the dealing;
(b) the nature of the work or adaptation;
(c) the possibility of obtaining the work or
adaptation within a reasonable time at an ordinary
commercial price;
(d) the effect of the dealing upon the potential
market for, or value of, the work or adaptation;
and
(e) in a case where part only of the work or adaptation is copied - the
amount and substantiality of the part copied taken in relation
to the whole
work or adaptation.[6]
5. In
addition to these factors a special deeming provision also applies in respect
of the research and study fair dealing
purpose. The copying of a
"reasonable portion" of a work or adaptation is deemed to be fair,
notwithstanding any of the above factors.[7]
A copy will be a "reasonable portion" if the pages copied, in
relation to a published edition of a literary, dramatic or musical
work,
(a) do not exceed, in the aggregate, 10 per cent of
the number of pages in that edition; or
(b) in a case where the work is divided into chapters exceed, in the
aggregate, 10 per cent of the number of pages in that edition
but contain only
the whole or part of a single chapter of the work.[8]
The fair dealing exception, particularly in so far as it relates to
"research and study", creates the most significant exception to
copyright in Australia.
(ii)
Fair Dealing and Technological Measures in the 1996 Treaties
6. In
December 1996 the WIPO Copyright Treaty and Performances and
Phonograms Treaty were adopted by a Diplomatic Conference in Geneva. A
desire to accede to those treaties in part explains the enactment of the
Digital
Agenda Reforms.
7. An
article in both treaties relates to "Obligations concerning Technological
Measures". In the WIPO Copyright Treaty the relevant article reads:
"Contracting Parties shall provide adequate legal protection and
effective legal remedies against the circumvention of effective technological
measures that are used by authors in connection with the exercise of their
rights under this Treaty or the Berne Convention and that
restrict acts, in
respect of their works, which are not authorized by the authors concerned or
permitted by law."[9]
Importantly, protection under the treaty extends to technological
measures which restrict activities "not ... permitted by law". This
is unclear in so far as it provides no ready answer to whether the obligation
extends to protecting a measure which persons may wish
to circumvent in order
to make a fair dealing.
(iii)
The role of the Fair Dealing Exception
8.
December 1996 was also the month in which the Commonwealth Attorney-General
announced revised terms of reference for the
Copyright Law Review Committee
(CLRC), which terms asked it to focus on simplification of the Copyright Act
1968 (Copyright Act) rather than conduct a more wide-ranging review of
copyright protection.[10] In September
1998 the CLRC's Report on Simplification of the Copyright Act 1968, Part 1,
Exceptions to the Exclusive Rights of Copyright Owners (Part 1) was
published.
9. The
most critical recommendation of Part 1 concerned the fair dealing provisions of
the Copyright Act. Part 1 recommends the abolition of the exhaustive nature of
the four purposes for which the fair dealing exception applies.[11] This is to be replaced with a more generalised fair
dealing exception which may be supported by any purpose, including the existing
four, where that purpose meets certain criteria. In so doing, the CLRC recasts
the nature of the fair dealing exception from a defence
to infringement to a
positive right of users. This proposal's raison d'être seems to arise from the
CLRC's view that:
"Fair dealing provisions are needed to ensure the free use of copyright
material in the digital environment for purposes that are
socially desirable,
especially as digital technology has the potential to restrict such use so as
to enforce voluntary licensing
agreements."[12]
In Part 1, the CLRC states that "Strictly speaking, fair dealing is
not a defence to infringement; rather, it defines the boundaries of copyright
owners' rights."[13] These
boundaries should be curtailed by the test of "social desirability".[14]
10. The fair
dealing recommendation is also justified on the "real limitations of the
current provisions" being "inflexibly
linked to specific purposes and
... difficult to apply to new technologies".[15] Later in Part 1, these "real limitations" of
the current provisions are described as a "criticism" of the
"current fair dealing provisions".[16]
At both points the sole reference given is to a 1997 journal article published
in the European Intellectual Property Review.[17] The relevant portion of that article, authored by an
Australian commentator, reads:
"There has been some criticism of the fair dealing provisions being
inflexibly linked to specific purposes and difficult to apply
to new
technologies outside hard-copy books and journals."[18]
11. In the journal
article this criticism was unattributed. The commentator did not otherwise
substantiate the fact of such
criticism. The background to the preparation of
Part 1 included the CLRC publishing Issues Papers, conducting a public forum
and receiving over 250 submissions.[19]
One could be forgiven for wondering why, notwithstanding this extensive
consultative process, the CLRC resorted to the use of an
unsubstantiated
assertion in a journal article to support its key recommendation. Was there an
absence of such criticism being levelled
at the current four exclusive fair
dealing purposes by user interests? If so, such an absence of criticism would
be unsurprising.
It is difficult to understand how any of the current fair
dealing purposes of research or study, criticism or review, reporting of
news,
or giving legal advice are anything but apt to be applied flexibly to new
technologies. They are technology non-specific.
12. However, the
CLRC's treatment of fair dealing touches upon an important philosophical debate
which continues within copyright.
The question central to the debate is:
"Should anti-circumvention provisions allow copyright users to circumvent
technological measures
if users wish to avail themselves, under an exception to
copyright, of copyright subject matter protected by the measure?"
Alternatively,
should exceptions to copyright be regarded as positive users'
rights or merely a defence to infringement? In Part 1 the CLRC answers these
questions with an unequivocal "yes".
13.
Article 10(1) of the WIPO Copyright Treaty offers the following broad
principle in answer:
"Contracting Parties may, in their national legislation, provide
for limitations of or exceptions to the rights granted to authors
of literary
and artistic works under this Treaty in certain special cases that do not
conflict with a normal exploitation of the
work and do not unreasonably
prejudice the legitimate interests of the author."
14.
An agreed statement concerning Article 10 explains:
"It is understood that the provisions of Article 10 permit
Contracting Parties to carry forward and appropriately extend into the
digital
environment limitations and exceptions in their national laws which have been
considered acceptable under the Berne Convention.
Similarly, these provisions should
be understood to permit Contracting Parties to devise new exceptions and
limitations that are
appropriate in the digital network environment."[20]
15. This statement
is not helpful in answering the questions posed above. Providing that
exceptions may be "carried forward
and appropriately extend[ed] into the
digital environment" begs the questions as to how the exceptions currently
apply, how they
will be carried forward and what constitutes an appropriate
extension.
16. The immediate
precursor to the Digital Agenda Reforms was the Copyright Amendment (Digital
Agenda) Bill 1999 ("the Digital Agenda Bill").[21] The Explanatory Memorandum to the Digital Agenda Bill
1999 echoed a sentiment similar to that contained within the WIPO treaty
documents:
"As far as possible, the exceptions replicate the balance struck
between the rights of owners and the rights of users that has applied
in the
print environment."[22]
17. This statement
is an equally unhelpful expression of policy. Again, it fails to grapple with
the difficult issue of whether
circumvention should be lawful for a fair dealing
purpose. Therefore, notwithstanding the criticisms which may be leveled at the
CLRC's position, it has at least put forward a clear view as to how fair
dealing does and should apply in the future. How fair dealing
and
anti-circumvention inter-relate is a hard issue which the Australian Parliament
has dealt with largely unguided by the WIPO treaties.
Circumvention
Devices and Services
(i)
Fair dealing and circumvention devices: Digital Agenda Exposure Draft
18. The philosophy
expressed in Part 1 that "fair dealing provisions are needed to ensure the
free use of copyright material
in the digital environment for purposes that are
socially desirable, especially as digital technology has the potential to
restrict
such use"[23] was
initially adopted by the drafters of the Digital Agenda Bill. This can be seen
in the anti-circumvention provisions contained
in the Bill's earlier
Digital Agenda Exposure Draft which was released with accompanying Commentary
in February 1999 ("Digital Agenda
Exposure Draft").[24]
19. The Digital
Agenda Exposure Draft made unlawful the supply of a circumvention device or
service, or the making of a circumvention
device. To so supply or make attracted
both civil and criminal liability.[25]
Under the Digital Agenda Exposure Draft a "circumvention device" and
"circumvention service" meant something which has:
"only a limited commercially significant purpose or use other than
the circumvention, or facilitating the circumvention, of any effective
technological protection measures."[26]
20.
Further, the Digital Agenda Exposure Draft defined a "technological protection
measure" to mean:
"a device or product designed to prevent or inhibit the
infringement of copyright subsisting in any work or
other subject-matter."[27]
This was deemed to be "effective" only if:
"access to the work or other subject-matter protected by the
measure is available solely by use of an access code or process (including
decryption, descrambling or other transformation of the work or subject-matter)
with the authority of the owner of the copyright
in the work or
subject-matter."[28]
21. Importantly,
this was merely a deeming provision for when a technological protection measure
will be taken to be "effective".
Where copyright subject matter was
protected by an effective technology protection measure, the Digital Agenda
Exposure Draft made
unlawful the supplying of a device or service capable of
circumventing those measures only if the supplier knew or was reckless as
to
whether it was to be used "for the purpose of infringing copyright in the
work or other subject-matter".[29]
This was to be a rebuttable presumption in civil actions.[30]
22.
The "anti-circumvention"
regime in the Digital Agenda Exposure Draft contained three clear drafting
limitations:
(a) that
"technological protection measures" might be construed to require
such measures to possess an ability to discriminate
between infringing and
non-infringing uses;
(b) such a
measures may be held to be not "effective" if able to be circumvented
and,
(c)
the mental requirement for liability
permitted supply for any non-infringing use, including
fair dealing.
(a)
Definition of "technological protection measures"
23. The definition
of "technological protection measures" ("a device ... designed
to prevent or inhibit the infringement of
copyright")[31] suggested that measures which simply denied access
without permission were excluded from the definition. Instead, the definition
seemed to require measures which could discriminate between infringing and
non-infringing activities for the purpose of preventing
the former. However,
access regulation describes the actual functionality of technology locks.[32] While the deeming provision in
respect of "effective" was drafted in terms of "access",
this did not affect the underlying purpose
of preventing copyright infringement
which the definition of "technological protection measure" required.
This definition appeared
to require measures to possess a functionality which
permitted access where a particular use was within a particular exception. In
order for such measures to permit free access for fair dealing required
abilities both in copyright law and mind-reading. The definition
of
"technological protection measures" within the Digital Agenda
Exposure Draft defined a fantasy. Technology locks merely prevent
access in the
absence of authorisation.[33] The
definition rendered the anti-circumvention regime potentially nugatory. It left
open argument that unless a technology lock could
discriminate between
infringing and non-infringing activities, and regulate only the former, it fell
outside the definition and could
be circumvented without liability under
copyright law. The penal nature of certain of the provisions rendered the
success of such
an argument not fanciful.[34]
(b)
Deeming provision for "effective"
24. Further, the
provision setting out when a technological protection measure was deemed to be
"effective" was drafted in such
absolute terms ("access to the
work ... is available solely"), that it opened the door to the argument
that circumvention of a measure
necessarily rendered the measure ineffective,
and as such, outside the definition.
(c)
The mental requirement for liability
25. However, even
assuming the above interpretations were not given to "technological
protection measure" and the "effective"
deeming provisions, the
Digital Agenda Exposure Draft's anti-circumvention regime was conspicuously
drafted to limit its applicability.
This was through the requirement that the
provider of a circumvention device or service knows that, or is reckless as to
whether,
the device or service is used "for the purpose of infringing
copyright".[35] The Commentary
which accompanied the Draft explained:
"This element has been included to ensure the enforcement measures
do not limit the operation of the exceptions to the exclusive rights
of
copyright owners."[36]
Presumably, this meant that supply of a circumvention device or service
for any fair dealing would not
attract liability.
(d)
Quokka and Equitech: a hypothetical
26.
Consider the Digital Agenda Exposure
Draft's potential application to the following hypothetical
situation.[37]
Quokka Pty Ltd (Quokka) distributes literary works electronically
through its web site. Quokka always takes a full assignment of copyright
from
authors whose works Quokka makes available. Quokka's web site customers must
accept the following conditions of access:
* a monthly $10 charge for access to the web site; this enables viewing
on screen of Quokka's catalogue, a summary of the literary
works and selected
critical reviews
* a charge of 1 cent per 200 words if a customer wishes to read the text
of any literary work on screen
(Thus, under these terms, reading an 80,000 word literary work would
cost $4.)
Quokka uses state-of-the-art web technology. Access to the site is
password protected. Text is available in a format such that it
can not be
digitally copied or printed out by the customer. Transactions are facilitated
through an internet credit card billing
service.
Equitech Solutions Pty Ltd (Equitech) has developed a new software
product called fair dealer 1.1. It has no other function but to
enable full
access to the Quokka site without payment to Quokka. The software enables a
user to obtain not only access, but also
to digitally copy and print out the
works on Quokka's web site.
One of the terms on which equitech licenses fair dealer 1.1 is:
“The user agrees to use the software only for fair dealings permitted
under the Copyright Act 1968.”
27. Firstly, it is
not clear whether Quokka's technological lock on its literary works would fall
within the definition of "technological
protection measure". It is
not designed to prevent copyright infringement; rather it is designed to
prevent access without Quokka's
permission. If it does not fall within the
definition, Equitech's activities would be outside the anti-circumvention
regime.
28. Secondly,
Equitech could contend that the circumvention by Fair Dealer 1.1 of Quokka's
measure meant that the measure could
not be said to be "effective".
29. Thirdly,
assuming that Quokka's technological access bar does fall within the definition
of "technological protection measure"
and is deemed to be
"effective", has Equitech the requisite mental element for liability?[38] In respect of criminal liability it
would need to be proved beyond reasonable doubt[39] that Equitech knew, or was reckless as to whether, Fair
Dealer 1.1 was to be used for the purpose of infringing copyright. In respect
of civil liability, Equitech would need to rebut the presumption of knowledge
or recklessness.
30. Isaacs J in National
Phonograph Co of Australia Ltd v Menck[40]
explained that "the right of the licensee is coextensive with the
permission granted - no greater, no less".[41] His Honour went on to state that not only may a rights
holder:
"mark off any [exclusive rights] from the rest and exclude it altogether
from the freedom he confers upon another person, but within
the area of each
several operation he may erect limitations. Cujus est dare, ejus est disponere.
He cannot be compelled to give more
than he will. And whoever transgresses
beyond the limits conferred, is a trespasser."[42]
31. Any use of
Fair Dealer 1.1 to infringe copyright necessarily falls outside the terms of
the Equitech software licence. Such
use could not be said to have been authorised
by Equitech. Indeed, to use Fair Dealer 1.1 to infringe a third party's
copyright would
breach the software licence. It is unlikely that criminal
liability could attach to Equitech in these circumstances. It is probable
that
Equitech could rebut the presumption of knowledge or recklessness in a civil
action. These conclusions are bolstered by the
express intent which lay behind
the requirement that the provider of a circumvention device or service knows,
or is reckless as to
whether, the device or service is used "for the
purpose of infringing copyright".[43]
32. It would have
been extraordinary that the mere inclusion of a simple software licence term
could effectively evade the anti-circumvention
regime. However, this is a
consequence of copyright reform proceeding not on the basis of protecting the
rights of authors, but with
a paramount concern for enshrining existing free
use exceptions.
(e)
The Digital Agenda Exposure Draft and the CLRC simplification report
33. The focus of
the Digital Agenda Exposure Draft was on the wholesale translation of
exceptions into the digital environment.
To this extent, the Draft might be
regarded as sharing a common philosophy with the sentiments on fair dealing
expressed in Part 1 of the CLRC's report. This is hinted at in the Commentary
to the Digital Agenda Exposure Draft, when the "Request for Comments"
explains:
"In the course of consultations on the draft Bill, the Government
also intends considering the relevant recommendations of Part 1
of the report
of the Copyright Law Review Committee on the Simplification of the Copyright
Act 1968 - Exceptions to the Exclusive Rights of Copyright Owners. Comments are
therefore invited in relation to these recommendations in
so far as they are
applicable to the draft Bill."[44]
34. However, the
CLRC Part 1 report is merely part of a wider philosophical push to transform what
have traditionally been regarded
as defences into positive user rights.[45] Although the Digital Agenda Exposure
Draft adopted this philosophy, it should be identified and resisted.
Proscriptions upon picking
technological locks placed upon copyright subject
matter may be critical to the effective operation of the information economy.[46] The sentiment of Part 1, reflected in
the Digital Agenda Exposure Draft of the Digital Agenda Bill, has as its practical
consequence
that once a work is electronically published it becomes everyone's
common property. Uncontrolled access in the digital environment
by downloading
or other copying too easily lends itself to the generation of uncontrollable
user copies. The copyright is rendered
a valueless form of property.
(ii)
Fair dealing and circumvention devices: Digital Agenda Bill
35. The
anti-circumvention provisions within the Digital Agenda Bill were somewhat
different from those contained in the Digital
Agenda Exposure Draft. The
definition, the deeming provision and the mental requirement for liability were
all altered significantly.
(a)
The definition and the deeming provision
36. The Digital
Agenda Bill marries from its Digital Agenda Exposure Draft the definition of
"technological measure" and the
provision for when such measures will
be deemed "effective", into a revised definition of "effective
technological protection measure".
That revised definition reads:
"[A] device or product, or a component incorporated into a process,
that is designed to prevent or inhibit the infringement of copyright
subsisting
in a work or other subject-matter if, in the ordinary course of its operation,
access to the work or other subject-matter
protected by the measure is
available solely by use of an access code or process (including decryption,
unscrambling or other transformation
of the work or other subject-matter) with
the authority of the owner or licensee of the copyright in a work or other
subject-matter."[47]
37. This drafting
overcomes the separate objections to the drafting of "technological
protection measures" and the "effective"
deeming provision in
the Digital Agenda Exposure Draft.
38. Firstly, while
the definition continues to be in terms of copyright infringement
functionality, such a measure is defined
to achieve this functionality where
access to the work requires a user to obtain an access code. The definition
does not on its face
give rise to an argument that a measure ought to be able
to discriminate between infringing and non-infringing uses.
39. Secondly, the
inclusion of the words "in the ordinary course of its operation"
answers an argument that any circumvention
of a measure renders the measure
ineffective, and thus outside the definition. This is confirmed in the
Explanatory Memorandum to
the Bill,[48]
which may be a useful aid if the meaning of the words "in the ordinary
course of its operation" is ever brought into question.
(b)
The mental requirement
40. In place of
the requirement of knowledge that the device was to be "used for the
purpose of infringing copyright", the Bill
provides for both civil and
criminal liability the broader requirement that:
"the person knew, or ought reasonably to have known, that the
device or service would be used to circumvent, or facilitate the circumvention
of, the effective technological protection measure."[49]
41. For criminal
liability, the mental requirement is similarly broadened, however the
"ought to have known" alternative requirement
is substituted for
"is reckless as to whether".[50]
While the mental requirement remains a rebuttable presumption in civil actions[51] it is coupled with the proviso that
neither civil nor criminal liability will arise when the device or service was
made or supplied
for a "permitted purpose".[52] A circumvention device or service will be taken to be
supplied for a permitted purpose if:
· the device or service is used for the purpose of doing an act comprised
in the copyright in a work or other subject-matter; and
· the doing of the act is not an infringement of the copyright in the work
or other subject-matter under sections 47D, 47E, 47F, 49,
50, 183 or Pt VB.[53]
42. Sections 47D,
47E and 47F are the new free exceptions permitting the reproduction of computer
programs to make interoperable
products, to correct errors and for security
testing. Sections 49 and 50 are the free exceptions for libraries and archives.
Part
VB and s 183 are the remunerated exceptions for educational institutions
and the Crown. Absent from the list of "permitted purposes"
are the
fair dealing exceptions.[54] In respect
of the supply of devices or services, the recipient of the circumvention device
or circumvention service must give a declaration
confirming that the use is for
a "permitted purpose" and specifying the purpose.[55]
43.
Equitech under this regime would not be spared
liability through mere contractual reliance on fair dealing. A "permitted
purpose"
exception may only apply when a circumvention device or service
is supplied:
· to one of the limited classes of users,
· for an allowable purpose and,
· where the purpose is specified and declared in writing prior to the
supply.
44.
The Bill became the subject of
further submissions by interested parties as it entered its Parliamentary
Committee stage of review.
(iii)
The House Committee Review
45. In December
1999, the House of Representatives Standing Committee on Legal and
Constitutional Affairs, after submissions
from various copyright owner and user
interests, released its Advisory Report on the Digital Agenda Bill ("House
Report").[56] In respect of
circumvention devices, the House Report contains an opinion on both the
definition of "effective technological protection
measure" and the
scope of "permitted purposes" for the supply of circumvention devices
and services. More generally, it recommended
that devices promoted as having
the purpose of circumvention be included within the definition of circumvention
device.[57]
(a)
The definition and the deeming provision
46.
The House Report offers the following opinion to Government:
"In the view of the Committee, the definition of effective
technological protection measure in the Bill is a hybrid of access control
and
copy control measures ... For this reason the Committee does not consider the
proposed definition of effective technological
protection measure
ineffective."
47. This is an
accurate appraisal by the House Report. The Bill's definition operates to
describe the reality of technology
locks, particular where such locks are mere
access controls. Unfortunately, the House Committee then provides a suggestion
which
returns the definition to where it began in the Digital Agenda Exposure
Draft:
"However, in the Committee's view, it may be preferable to define
effective technological protection measure simply in terms of copy
control
measures. In other words, an effective technological protection measure is a
device or product, or component incorporated into a process, that, in the
ordinary
course of its operation, is designed to prevent or inhibit the
infringement of copyright subsisting in a work or other subject-matter."[58]
48. The effect of
this recommendation would see the drafting revert to essentially that contained
in the Digital Agenda Exposure
Draft.[59]
A technology lock would again require a functionality which enabled it to
discern infringing from non-infringing uses. Access control
measures would be
excluded. For all the reasons explained above, this would be an undesirable change
which would define a fantasy
and render the anti-circumvention provisions
meaningless.
(b)
The mental requirement
49.
The focus of the House Report was on
the scope of the "permitted purposes". It (almost wryly)
observes:
"As may be expected, copyright users advocated the expansion of
permitted purposes to include all non-infringing purposes, while copyright
owners opposed exceptions for permitted purposes altogether."[60]
50. The House
Report, however, proceeded to avoid expressly dealing with the issue of whether
fair dealing should be a permitted
purpose. While accepting that "users
should not be deprived of innovative Australian circumvention devices for uses
other than the
infringement of copyright", the report merely recommended
expansion of the scope of the security testing exception generally,[61] and insertion of new permitted
purposes for the study of computer programs[62]
and for preservation of works held by libraries and archives.[63] The report's silence on the inclusion or non-inclusion of
fair dealing as a permitted purpose is one of its most puzzling features;
submissions pleading for the inclusion of fair dealing as a permitted purpose
were not addressed in the report.[64]
(iv)
The Digital Agenda Reforms
51. Consequent upon
the House Report, the Government moved further amendments to the Digital Agenda
Bill concerning the anti-circumvention
provisions.[65] However, none represented a substantial shift from the
position in the Digital Agenda Bill, save for the inclusion of broader
liability
in respect of the commercial promotion of circumvention devices.[66] Significantly, the suggestion that
"effective technological measures" be defined simply in terms of copy
control measures was not
taken up by Government. Instead, the definition
omitted the term "effective" and was reconfigured to now provide:
"technological protection measure" means a device or product,
or a component incorporated into a process, that is designed, in the
ordinary
course of its operation, to prevent or inhibit the infringement of copyright in
a work or other subject-matter by either
or both of the following means:
(a) by
ensuring that access to the work or other subject matter is available solely by
use of an access code or process (including
decryption, unscrambling or other
transformation of the work or other subject-matter) with the authority of the
owner or licensee
of the copyright;
(b) through
a copy control mechanism.[67]
This represented no change in substance to that provided for in the
Digital Agenda Bill.
52. By
consequential amendments, the word "effective" was removed from both
the civil and criminal anti-circumvention provisions,
but by drafting
over-sight it was not removed from the definitions of "circumvention
device" and "circumvention service".[68] Thus the final definition of "circumvention
device" means:
"a device (including a computer program) having only a limited
commercially significant purpose or use, or no such purpose or use,
other than
the circumvention, or facilitating the circumvention, of an effective
technological protection measure".[69]
53. Presumably, in
the absence of a subsequent amendment deleting "effective", a court
dealing with these definitions will be
faced with two choices. It may either
seek to give some operation to the word "effective" in the
definitions or, may read the definitions
as if the term had been excluded.
Notwithstanding the clear indication from all secondary materials that the
inclusion of "effective"
in the definitions was a slip, there may be
one compelling reason why this may not lead to the latter option being followed
by a
court. As the definitions pertain to the imposition of criminal liability,
they may "not be construed so as to make unlawful that
which was
previously lawful".[70] This might
render the circular (but absurd) argument that a circumvention device or a
circumvention service which successfully circumvents
a measure necessarily
renders the measure "ineffective"; as such the device or service must
fall outside the definition.
Circumvention
per se
54. The Digital
Agenda Exposure Draft, the Digital Agenda Bill and finally the Digital Agenda
Reforms do not directly proscribe
of the act of circumvention. While the
Explanatory Memorandum to the Bill pithily states "the actual use of
circumvention devices
is not proscribed",[71] the Commentary to the Digital Agenda Exposure Draft
provided a substantive justification:
"The Government is of the view that adequate legal protection
against the circumvention of effective technological protection measures
can
only be afforded if the manufacture and commercial dealings in circumvention
devices are banned. As the proposed EC Directive
notes (see above), it would be
more effective for owners of copyright to be able to seek remedies against the
manufacture and commercial
dealings with devices rather than seek remedies
against individual users of those devices. The actual use of a circumvention
device
has therefore not been proscribed in the draft Bill."[72]
55. However, the
proposed European Commission Directive referred to in the Commentary was
amended by the European Parliament
after the preparation of the Digital Agenda Exposure
Draft and prior to the introduction of the Bill into Parliament.[73] The relevant provision, Article 6(1)
now provides:
"Member States shall provide adequate legal protection against the
circumvention without authority of any effective technological
measures
designed to protect any copyright or any rights related to copyright as
provided by law or the sui generis right provided
for in Chapter III of
European Parliament and Council Directive 96/9/EC, which the person concerned
carries out in the knowledge,
or with reasonable grounds to know that he or she
pursues that objective."
56. This revision,
which represents a significant shift on the previous European position, is not
referred to within the Explanatory
Memorandum to the Bill.
57.
The United States approach
introduced by the Digital Millennium Copyright Act 1998 in section
1201(a)(1)(A) provides:
"No person shall circumvent a technological measure that effectively
controls access to a work protected under this title."
58. The provision
goes on to explain that this will only apply after a period two years from the
date of enactment. Excluded
from its ambit are classes of works in respect of
which the Librarian of Congress determines that the ability of persons to make
"noninfringing" uses will be adversely affected. The Librarian of
Congress will make such a determination every three years.[74] The determination is, essentially, implementation of the
recommendation contained in a rule-making by the Copyright Office.[75]
59. The compromise
struck in section 1201(a)(1)(A) between the rights of copyright owners and
those of users is a cumbersome
one.[76]
However, both Article 6(1) and section 1201(a)1(A) proscribe an activity absent
from mention within the Digital Agenda Reforms; actual
circumvention. The
Explanatory Memorandum is particularly coy on what policy imperatives led to
Australia proposing a course inconsistent
with that taken by United States and
likely to be taken by the European Union.
60.
Notwithstanding the failure to directly and expressly proscribe actual circumvention
in Australia, through a circuitous
route the Digital Agenda Reforms have
created liability in respect of those who own (or presumably, posses)
circumvention devices.
Section 116(1)(b) of the Copyright Act 1968 has
been amended to read:
The owner of the copyright in a work or other subject-matter may bring
an action for conversion or detention in relation to ...
(b)
a device (including a
circumvention device) used or intended to be used for making
infringing copies.[77]
61. The
Explanatory Memorandum to the Digital Agenda Bill explains that the effect of
the amendment is to clarify that a copyright
owner may bring an action for
conversion or detention in relation to circumvention devices.[78] However, if a device is used to merely obtain access, or
to undertake fair dealings (and in both cases not making "infringing
copies")
it seems unlikely that this provision will give rise to
liability.
62. Thus, under
the Digital Agenda Reforms it is possible to consider the following scenario.
Reuters Business Briefings is
a well-known conditional access, Internet
publishing service which is generally accessible by users upon terms and
payment to Reuters.[79] A vendor may
sell to thousands of companies a device which enables those companies to
circumvent an effective technological protection
measure adopted by Reuters to restrict
access to the service. Through use of the device, those companies may then
access the service
freely. Under the current Bill, the vendor may be subject to
criminal liability, and Reuters may restrain the further sales of the
device,
seek damages or an account of profits from the vendor. Although, the actual use
of circumvention devices is not proscribed
under the Digital Agenda Reforms,
Reuters may bring an action in conversion or detention against a company which
uses such a device.
However, this may only be if the company has used or
intends to use the device to "make infringing copies".
63. Before the
Legal and Constitutional Affairs Committee, the Attorney-General's Department
and the Department of Communications,
Information Technology and the Arts
jointly explained the reason why the Bill omits to proscribe actual
circumvention:
"The government believes that the most significant threat to
copyright owners' rights lies in preparatory acts for circumvention,
such as
manufacture, importation, making available online and sale of devices, rather
than individual acts of circumvention."[80]
64. The House
Report rejected this position. It recommended that the Bill include "a
civil remedy where a person uses a circumvention
device in an attempt to
infringe copyright".[81] Use of
the expression "infringe copyright" here is again highly problematic
for all the reasons stated above. Nevertheless, the Committee's
view points
Australia in a direction more in line with that taken by Europe and the United
States. While this recommendation was
not accepted by Government in the Digital
Agenda Reforms, the amendment to section 116(1)(b) appears to give rise to a
similar type
of liability in certain situations.
Four
Concluding Observations
(i)
The Deadweight Loss Argument
65. One argument
directed against any curtailment of fair dealing revolves around the economic
problem of deadweight loss. Assuming
a copyright owner is faced with zero
marginal costs for each additional user's consumption of a copyright work (a
defining characteristic
of a public good[82])
then the copyright owner should be willing to permit consumption to anyone
willing to pay a positive price. If the copyright owner
requires payment of
(say) $20, and there exists prospective consumers who a are willing to pay
something less than $20, a "deadweight
loss" is created. This loss is
twofold; it comprises the sum of the consumer surplus that would have been
reaped by the excluded
consumers and it also comprises the producer surplus
that would have been reaped by the copyright owner had access to the work been
sold.[83] The argument asserts that
free use by those consumers (through fair dealing or fair use) minimises this
loss by ensuring the consumers
obtain the utility from the work. The copyright
owner, on the other hand, is in the same position as before as it does not lose
profits
which it would not have otherwise obtained.
66. The deadweight
loss argument fails to justify the position that free exceptions should be
created to anti-circumvention
provisions, because the argument ignores the
possibilities created by digital technologies for price discriminiation.
Copyright owners
have traditionally had meagre and crude forms of price
discrimination available to them. Thus a publisher of a literary work might
have been able to differentiate between consumers with different willingnesses
to pay by the early release of a hard-cover edition,
and the later release of a
paperback edition. Digital technologies permit sophisticated price
discrimination.[84] Thus, in the
context of the above illustration, all consumers who have a willingness to pay
something below $20 might be able to
be supplied at about the price each is
prepared to pay. The deadweight loss is thus overcome, with mutual gains made
by users and
the copyright owner. As noted by one commentator the "market
failure genre of fair use should fade away in a world of perfect price
discrimination and direct enforcement of copyright through access
controls".[85]
(ii)
"The Exclusive Right to Read" Argument
67. Concerns about
the grant of property rights in information per se abound.[86] More particularly, an argument has been made that
copyright law has never given to authors the exclusive right to control reading
or access[87] and to do so upsets the
"balance".[88] However
this argument disingenuously glosses over the realities which arise when
distribution of copyright subject matter shifts
from printing presses to
digital networks. Thus, when the only medium of distribution for textual works
was the printed page, access
to the work was only viable by being able to
access the printed pages. Copyright law operated by giving authors the right to
control
the number of printed copies available to be accessed and read. In this
way copyright law has always granted to authors a right to
control access,
albeit indirectly. As observed recently:
"A printed book can be accessed by one or perhaps two people at
once, people who must, of course, be in the same place as the book.
But make
that same text available in electronic form, and there is almost no
technological limit to the number of people who can
access it simultaneously,
from literally anywhere on the planet where there is a telephone (and hence an
Internet connection)".[89]
68. Today, digital
technologies enable one copy of a copyright work to be rendered to a limitless
number of consumers. Giving
to copyright owners the legal ability to enforce controls
on access to that one copy is entirely analogous to the grant of traditional
exclusive right to control the production of physical copies.
(iii)
The Myth of Balance
69. The
preservation of an existing "balance" in copyright is often used to
support the carry-over of free exceptions into a
digital environment.[90] This argument masks a position not
supportable in fact. As observed by one commentator "the 'copyright
balance' is hardly immutable:
the development and distribution of mass market
copying devices also shifted the copyright 'balance' - in that case away from
copyright
owners and toward end-users."[91]
The wide-spread and unlawful dissemination of MP3 audio files is a most obvious
illustration of this. More colourfully, in 1975 Barbara
Ringer, a former US
Register of Copyrights noted that the rights of copyright creators "are
being sacrificed more and more on the
altar of ... the technological
revolution".[92]
70. The existence
of a legislatively ordained balance between copyright owners and users is a
myth. Technology, commerce, social
norms and the law dynamically inter-relate
to produce a blurred, changing picture of what is generally free and what is
generally
paid for. It is a futile exercise to attempt to divine some precise
balance between the existing interests of owners and users.
Rather, more
insight may arise from the observation that it is generally considered socially
desirable for people to be permitted
to protect by their own means what they
create.[93] It is difficult to see why
copyright industries differ from this norm.
(iv)
The Desirability of Payment for Use
71. Digitisation
facilitates access to copyright subject matter like never before. Modes of
distribution are cheap and global.
Markets for copyright subject matter will be
of a vastly different character to those currently established. Prior to the
imposition
of exceptions into those markets, more insightful and sophisticated
considerations of their likely nature are required. James Gleick
foretells:
"When the coming technologies of on-line commerce allow easy
payment of small sums, a few cents here and a few cents there, people
who
create writing or music or art of value will flourish economically in ways that
have been impossible until now - independent,
perhaps, of traditional
publishers and media empires. But that will be impossible if at the moment a
new work reaches the on-line
world, it becomes everyone's common
property."[94]
72. Fortunately,
Australia has moved away from an approach to law reform which would have
characterised the fair dealing exception
to copyright as a positive user right.
Fortunate because such characterisation creates the socially undesirable
outcomes which arise
when the economic value of copyright as a commodity is
reduced to zero, and production of works is determined by their (or their
creator's) appeal to governments, patrons or advertisers. In such an
environment, copyright creators are economically beholden to
powerful interests
for funding. Freedom of expression is a meaningless concept unless copyright
creators are able to prosper independent
from these interests. If such
independently created copyright is a good individuals in society value, it must
be a good individuals
are willing to pay for.
Notes
* B Comm LLB (Hons) (Melb). Research Fellow,
Law School, University of Melbourne. Many thanks to Mr Simon Cordina, Principal
Legal
Officer, Intellectual Property Branch, Attorney-General's Department and
Mr David Lindsay, Law School, University of Melbourne.
This article was
also greatly enhanced by the comments of an anonymous referee. All errors are
my own.
[1] Sections 116A and 132 (5A), (5B),
(5E)-(5J) which provide for civil and criminal liability respectively.
[2] Kenneth W. Dam, "Self-Help in the
Digital Jungle" (1999) 28 Journal of Legal Studies 393.
[3] Christopher Murray in the
Symposium "Digital Technology And Copyright: A Threat Or A Promise?"
(1999) 39 IDEA 291 at 334.
[4] The exhaustive nature of these criteria
is a matter which greatly troubled the Copyright Law Review Committee in its
report on Simplification
of the Copyright Act 1968, Part 1, Exceptions
to the Exclusive Rights of Copyright Owners discussed below.
[5] Copyright Act 1968, sections
40-43 and 103A-C.
[6] Copyright Act 1968, sections
40(2) and 103C(2).
[7] Copyright Act 1968, section
40(3).
[8] Copyright Act 1968, section
10(2). The Digital Agenda Bill includes a proposed amendment which deems a
"reasonable portion" no more than ten per cent of the words of
certain works in electronic form: Sch 1, item20.
[9] Article 11. The Corresponding Article in
the Performances and Phonograms Treaty is Art 18.
[10] Report on Simplification of the Copyright
Act 1968, Part 1, Exceptions to the Exclusive Rights of Copyright Owners,
at 1.01.
[11] These existing four purposes are:
research or study, criticism or review, reporting of news, and professional
advice given by a legal
practitioner or patent attorney (Copyright Act 1968,
sections 40-43, 103A-C).
[14] In Part 1 at 6.143 the CLRC enumerates
five criteria to assist in ascertaining whether a dealing is "fair".
The first of these is the "purpose
and character of the dealing"
which rather than providing guidance on the question of "fair",
merely begs the question.
[17] Tim Power, "Digitisation of
Serials and Publications" [1997] 8 European Intellectual Property Review
444.
[18] Ibid. at 452-453.
[20] Agreed Statements Concerning The WIPO
Copyright Treaty, Agreed Statement concerning Article 10.
[21] The Bill was introduced into the
Australian Parliament on 2 September 1999. In the Bill's Second Reading Speech
the Attorney-General
stated: "Importantly, the reforms in the bill are
consistent with new international standards to improve copyright protection in
the
online environment adopted in the 1996 World Intellectual Property Organisation
(WIPO) Copyright Treaty and WIPO Performances and Phonograms Treaty.
Australia was an active participant in the Diplomatic Conference in December
1996 that agreed to the WIPO treaties, and the enactment
of this bill will be a
major step towards aligning our copyright laws with the obligations imposed by
the treaties." The Digital
Agenda Exposure Draft of the Bill and
associated Commentary were released in February 1999. The Discussion Paper
Copyright Reform
and the Digital Agenda - Proposed transmission right, right of
making available and enforcement measures was published jointly by
the
Attorney-General's Department and the Department of Communications and the Arts
in July 1997.
[22] Explanatory Memorandum, p 3.
[23] Part 1, para 6.19.
[24] The Digital Agenda Exposure Draft of the
Bill and associated Commentary were published in February 1999.
[25] Digital Agenda Exposure Draft Sch 1,
items 85, 87. (However, under the Digital Agenda Exposure Draft civil liability
was not attached
to the provision of a circumvention service. Presumably this
was an unintended omission; under the Digital Agenda Bill civil liability
is
attached to provision of a circumvention service: Digital Agenda Bill,
Sch
1, items 98, 100.)
[26] Digital Agenda Exposure Draft, Sch 1,
items 4, 5.
[27] Digital Agenda Exposure Draft, Sch 1,
item 14 (emphasis added).
[28] Digital Agenda Exposure Draft, Sch 1,
item 18.
[29] Digital Agenda Exposure Draft, Sch 1,
items 85, 87.
[30] Digital Agenda Exposure Draft, Sch 1,
item 85. In respect of civil liability for the provision of circumvention
devices, the onus
of proof is reversed; a presumption of knowledge or reckless
indifference is made.
[31] Digital Agenda Exposure Draft, Sch 1,
item 14.
[32] Dam supra note 2, at 398.
[33] Ibid.
[34] If a penal provision is ambiguous,
the provision "will not be construed so as to make unlawful that which was
previously lawful": R v Coster [1978] 1 NSWLR 515 at 520 (Street
CJ). See also Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 576 (Gibbs J).
[35] Digital Agenda Exposure Draft, Sch 1,
items 85, 87.
[36] Commentary to the Digital Agenda
Exposure Draft, para 92.
[37] A hypothetical situation similar to
that of Quokka and Equitech formed the basis of a discussion at a Seminar on
the Digital Agenda
Exposure Draft of the Digital Agenda Bill, attended by Mr
Simon Cordina, the Principal Legal Officer responsible for the Bill within
the Attorney-General's
Department: Davies Collison Cave, Seminar on the Digital Agenda Exposure Draft
of the Digital Agenda Bill,
Melbourne, 17 March 1999.
[38] Tesco Supermarkets Ltd v Nattrass
[1971] UKHL 1; [1972] AC 153 at 170 (Lord Reid) approved by the High Court in Hamilton v
Whitehead [1988] HCA 65; (1988) 166 CLR 121 at 127.
[39] Holder v Searle (unreported,
Federal Court of Australia, Spender J, 23 October 1998) where offences under s
132 of the Copyright Act were required to be established at the criminal
standard of proof, beyond a reasonable doubt.
[40] (1908) 7 CLR 481. Although this case
involved a patent licence, similar reasoning would apply to Equitech's software
licence.
[41] Ibid. at 539.
[42] Ibid.
[43] Commentary to the Digital Agenda
Exposure Draft, para 92.
[44] Commentary to the Digital Agenda Exposure
Draft, page 3.
[45] See, for example, Pamela Samuelson,
"The Copyright Grab" (1998) 29 University of West Los Angeles Law
Review 165.
[46] See generally, Tom W. Bell "Fair
Use v. Fared Use: The Impact of Automated Rights Management on Copyright's Fair
Use Doctrine (1998) 76 North Carolina Law Review 557.
[47] Digital Agenda Bill, Sch 1, item 8.
[48] Explanatory Memorandum, para 15 where
it provides: "The definition is intended to ensure that an argument cannot
be advanced that
a measure was not an 'effective technological protection
measure' on the basis that access had in fact been gained through illicit
means."
[49] Digital Agenda Bill, Sch 1, item 98.
[50] Digital Agenda Bill, Sch 1, item 100.
[51] Digital Agenda Bill, Sch 1, item 98.
[52] Digital Agenda Bill, Sch 1, items 98
and 100.
[53] Ibid.
[54] Given the assertion of policy in the
Commentary to the Digital Agenda Exposure Draft that enforcement measures ought
not limit the
operation of the exceptions to exclusive rights, it is odd that
no explanation is offered in the Explanatory Memorandum as to why
this policy
now applied to only a select few exceptions. It may be observed that the
"permitted purposes" relate to three of the
more important interest
groups: Australian libraries, Australian educational institutions and the
Australian software industry.
[55] In criminal actions, the defendant
needs only to establish on the civil standard of proof that the circumvention device
was made or
supplied, or the circumvention service was supplied for a
"permitted purpose": Digital Agenda Bill, Sch 1, item 98.
[56] Advisory Report on the Copyright
Amendment (Digital Agenda) Bill 1999, House of Representatives Standing
Committee on Legal and Constitutional Affairs, 6 December 1999.
[57] Ibid. Recommendation 12. This
recommendation took the form of broader liability for the promotion of
circumvention devices; it did
not affect the definition of circumvention
devices per se: see Copyright Act 1968, sections 116A (1)(b)(ii) and 132
(5A).
[58] Ibid. at 4.19 (emphasis added).
[59] Digital Agenda Exposure Draft, Sch 1,
item 14 ("a device or product designed to prevent or inhibit the
infringement of copyright subsisting
in any work or other
subject-matter").
[60] Advisory Report on the Copyright
Amendment (Digital Agenda) Bill 1999, House of Representatives Standing
Committee on Legal and Constitutional Affairs, 6 December 1999, 4.53 (footnotes
omitted).
[61] Ibid. at 4.67.
[62] Ibid. at 4.74.
[63] Ibid. at 4.75.
[64] For example, the First Submission of
the Australian Libraries Copyright Committee, 1 October 1999 at 14.14 submits:
"As a minimum,
the scope of permitted purposes should be expanded to cover
fair dealing." Notwithstanding this submission and others like it, the
issue was ignored by the Committee.
[65] These were introduced by the
Government in the House of Representatives on 19 June 2000.
[66] Copyright Act 1968, sections
116A (1)(b)(ii) and 132 (5A).
[67] This definition is now included
within section 10(1).
[68] Telephone conversation between the
author and Mr Simon Cordina, Principal Legal Officer, Intellectual Property
Branch
Attorney-General's
Department, 21 August 2000.
[69] Copyright Act 1968, section
10(1) (emphasis added).
[70] R v Coster [1978] 1 NSWLR 515
at 520 (Street CJ). See also Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at
576 (Gibbs J).
[71] Explanatory Memorandum, para 141.
[72] Commentary to Digital Agenda Exposure
Draft, para 89 (emphasis in original).
[73] The proposed European Commission
Directive on the harmonisation of certain aspects of copyright and related
rights in the Information
Society (COM(97)628 final of 10.12.1997) referred to
in the Commentary to the Digital Agenda Exposure Draft was supplanted by an
Amended proposal for a European Parliament and Council Directive on the
harmonisation of certain aspects of copyright and related
rights in the
Information Society (Brussels, 21.05.1999 COM(1999) 250)
[74] Section 1201(a)(1)(B)-(E).
[75] Section 1201(a)(1)(C).
[76] Pamela Samuelson, "Intellectual
Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to
be Revised" (1999) 14 Berkeley Technology Law Journal 519 at 537.
[77] Emphasis added.
[78] Explanatory Memorandum, para 140.
[79]
<http://www.reuters.com/rbb/products/rbbweb.htm>
.
The service is discussed in Carl Shapiro and Hal R. Varian, Information Rules
(Harvard Business School Press, 1999), at 28-30.
[80] Advisory Report on the Copyright
Amendment (Digital Agenda) Bill 1999, House of Representatives Standing
Committee on Legal and Constitutional Affairs, 6 December 1999, at 4.38.
[81] Ibid. at 4.44.
[82] See generally, Stephen Shmanske,
Public Goods, Mixed Goods and Monopolistic Competition, (Texas A & M
University Press, 1991).
[83] William W. Fisher III, Reconstructing
the Fair Use Doctrine, (1988) 101 Harvard Law Review 1661 at 1702.
[84] Shapiro & Varian, supra note 79,
chapter 2.
[85] Jane C. Ginsburg, "From Having Copies to experiencing works: the Development of an access Right in US Copyright Law", Columbia Law School, Public Law & Legal Theory Working Paper Group, Paper No 8 at 11, available at: <http://papers.ssrn.com/paper.taf?abstract_id=222493>
[86] See for example, Samuelson supra note
76, Julie H. Cohen, "Some Reflections on Copyright Management Systems and
Laws
Designed to Protect Them" (1997) 12 Berkley Technology Law Journal 161.
[87] Jessica Litman, "The Exclusive
Right to Read" (1994) 13 Cardozo Arts & Entertainment Law Journal 29.
[88] The concept of there being a
"balance" is dubious and is discussed below.
[89] Committee on Intellectual Property
Rights in the Emerging Information Infrastructure, National Research Council,
The Digital Dilemma:
Intellectual Property in the Information Age, (1999).
[90] Cohen, supra note 86.
[91] Ginsburg, supra note 85, at 5.
[92] Grossman, Omnibus Copyright Revision
(1976), Volume 16, House Hearings Part 3, 1955.
[93] Dam, supra note 2, at 397.
[94] James Gleick, "I'll Take the
Money, Thanks", The New York Times, 4 August 1996, Section 6, p 16.
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