Principles of copyright law based on tangible media such as books are difficult to apply to open public global networks such as the Internet. The problem is copyright’s roots were in the protection of information contained in tangible media. Distribution of the information contained in those media required two separate, slow and costly steps.
Primary infringement by copying from one tangible medium to another was limited before the electronic era by the restricted means of reproduction: originally pen and ink, then costly reprographics tools such as photocopiers, tapes or video recorders, which reproduced quickly but still imperfectly. In contrast, electronic copying provides a cheap, instantaneous, perfect means to make copies. Copyright infringement on a scale previously unknown beckons.
Similarly, whereas secondary infringement by distribution used to involve transporting a physical copy to a distant location, requiring a physical infrastructure beyond the reach of the amateur copyist, electronic copies are borderless and instantaneous of transmission.
In addition, information in digital form is much more easily manipulated and adapted than traditional forms of information, and changes are harder to detect. Perversely, though copying and distributing is faster and easier, detecting and proving infringement of copyright is more difficult.
As a result, technological methods of protection of electronic information have been developed. For instance, encryption renders the content of an electronic work unreadable without the right key. Digital watermarks or deliberate errors in the work assist in tracing copies to their source. Although such methods do not prevent copying, they make it more difficult and more risky. Looked at from another perspective, they present a fine challenge to those wishing to copy – who accordingly will put considerable effort into undoing the protection they provide.
The attempt to discourage such circumvention has led to the introduction of new legal rights, which generated some of the most heated debate around the Copyright in the Information Society Directive. The status of technological protection measures has been elevated from a matter of contract between the suppliers of copy-protected products and their customers to a matter of generally applicable rights (or, from the converse point of view, denial of rights) against all parties regardless of any pre-existing contractual relationship.
Copy-protection before the Directive
Even prior to the implementation of the Directive by the Copyright and Related Rights Regulations 2003 (“2003 Regulations”), section 296(2) of the Copyright Designs and Patents Act 1988 (“CDPA”) gave, to any copyright owner or their licensee who issued copy-protected electronic copies of a work to the public, rights against any person who, knowing or having reason to believe that it would be used to make infringing copies, made, imported, sold or let for hire, offered or exposed for sale or hire, or advertised for sale or hire, any device or means specifically designed or adapted to circumvent the form of copy-protection employed, or published information intended to enable or assist persons to circumvent that form of copy-protection (“the copy-protection right”). This regime was later slightly modified in respect of computer programs to bring UK law into compliance with Article 7(3) of the Computer Program Directive. Under the special computer program regime advertising for sale or hire is actionable only if the advertising takes place in the course of a business.
The definition of copy-protection measures included any device or means intended to prevent or restrict copying of a work or to impair the quality of copies made. It was not necessary that the copy-protection mechanism did effectively prevent or restrict copying, merely that it be intended to do so.
The 2003 Regulations
Section 296 was substantially revised by Regulation 24 of the 2003 Regulations and expanded into seven sections, 296 and 296ZA-ZF.
New section 296 gives several categories of person the right to bring proceedings against anyone who supplies devices or information which enable or assist the circumvention of a technical device applied to a computer program. A technical device is any device intended to prevent or restrict copyright restricted acts which are not authorised by the owner of copyright in the program. The term “device” could be read to suggest that some mechanical or electronic object may be required to bring the section into effect, rather than a purely software copy protection mechanism. Although in the context of computer programs it seems hardly credible to exclude software-implemented protection mechanisms, such a reading was in fact favoured by the Norwegian courts in a recent case concerning the DeCSS program for removing the CSS encryption from DVDs.
A concurrent right to bring proceedings is given to the copyright holder, an exclusive licensee of the copyright, a person who issues or communicates to the public copies of the protected program and the owner or exclusive licensee of any intellectual property rights in the technical device itself.
This is the first time such a right of action has been given to the owner or exclusive licensee of any intellectual property rights in the technical device itself. However, this is a relatively natural extension of the UK’s traditional approach of treating copyright as a right in favour of the commercial interests in publishing works, rather than the continental approach of foregrounding the interests of the author.
Section 296ZD provides protection for effective technological measures protecting either copyright works other than computer programs or works in which performers’ rights, publication right or database right subsist. The definition of an effective technological measure is set out in section 296ZF, which closely follows Article 6.3 of the Directive. It encompasses any technology, device or component which is designed, in the normal course of its operation, to prevent or restrict unauthorised copyright-restricted acts. Although software is not expressly mentioned, its inclusion is confirmed by the definition of ‘effective’, which requires that the technological measures enable the copyright owner to control the use of the work through either an access control or protection process such as encryption, or by a copy protection mechanism. Encryption in this context must inevitably be implemented by software. Any technological approach will be treated as ‘effective’ if it achieves the intended protection. Like the old section 296, this does not require the copy-protection mechanism actually to prevent all-comers being able to make copies, as long as it is intended to do so.
The production, import, supply, advertisement or possession for commercial purposes of any device or component either promoted, advertised or marketed for the circumvention of technological protection measures or which has only a limited commercially significant other purpose, or which is primarily designed, produced, adapted for that purpose is restricted by section 296ZD. It also covers the provision of services for that purpose.
Subsection 7 varies the construction of section 97(1) CDPA, which prevents a copyright holder from obtaining damages from a defendant who infringed ‘innocently’. A defendant being sued for producing, distributing or advertising means for circumventing effective technological protection measures will benefit from section 97 if she shows that she neither knew nor had reason to believe that her acts enabled or facilitated an infringement of copyright.
Section 296ZA applies where any person deliberately (or with reasonable grounds to know that it will have that effect) does anything which circumvents effective technological measures applied to either any copyright work other than a computer program, or any works in which rights in performances, publication rights or database rights subsist.
There is an express exception for anyone carrying out research into cryptography in accordance with Recital 48 of the Directive. However, the benefit of that exception is removed if the researcher affects prejudicially the rights of the copyright owner. Dissemination and peer review of research are therefore likely to be considerably constrained. The exception as phrased in the final version of the Regulations was intended as a compromise between the public interest in research to advance cryptography, and the interests of those involved in using the current level of knowledge to protect their commercial interests in copyright works.
Rights are given to the person who issues copies of the work or communicates the work to the public in protected form, or the copyright owner or exclusive licensee, if that is someone different. Notably, the owners of intellectual property rights in the technological measures themselves are not given any right of action under this section.
Where copies have been made by virtue of the technological measures having been circumvented, they will be infringing copies and therefore subject to forfeiture or destruction under section 114. But the formerly-protected copy does not infringe copyright in itself despite having been de-protected. The essence of section 296ZA is to prohibit the circumvention of the technological protection measures, but not to give right holders rights over any device or mechanism used to perform or enable the activity or over the resulting ‘clean’ copy.
Access for the purpose of permitted uses
One major issue with the use of technological measures to prevent copying of copyright works is that in some circumstances copying is permitted under copyright law. Obvious examples are the fair dealing exceptions to copyright infringement, where part of a work may be copied for purposes of criticism and review, or the copying of copyright works for the production of versions accessible by visually impaired people. Once technological protection measures have been applied, such exceptions may be eviscerated. The effect of the legal protection now being given to copy protection is that an infringement is now required in order to exercise a legitimate right to copy.
Accordingly, the Directive required Member States to provide some mechanism whereby the beneficiaries of such exceptions could continue to enjoy them. Section 296ZE is the UK’s response. The Government’s intention, echoing the hopes of the European Commission, is that the balancing of rights may be sorted out between copyright holders and consumers by voluntary measures or agreements enabling consumers to carry out the permitted acts notwithstanding the technological protection. If however a person is unable to carry out a permitted act in the UK, they can issue a notice of complaint to the Secretary of State.
The Secretary of State is under no obligation to act in response to such a notice, but may, in his sole discretion, direct copyright holders or their exclusive licensees in writing to do various things. There is no time limit for the Secretary of State to decide whether to give any directions, and no provision for any appeal from a failure to do so.
The possible directions are: 1) to establish whether there is any voluntary measure or agreement in place which assists; and if not 2) to ensure that the complainant is given the means to carry out the permitted act to the extent necessary to benefit from the Act. This could be absolutely anything. It remains to be seen how the industry will respond to requests for access to unprotected copies, and what form of compromise arrangements successive Ministers may attempt to broker.
If directions are given, it is a breach of statutory duty for the recipients not to respond. However, if they do not, the onus is left upon the complainants to enforce the directions by bringing legal proceedings – a substantial burden. There is no express limitation of the copy-protection right such that once a work ceases to be copyright the circumvention of technological measures becomes permissible. Thus, the result is potentially to extend the monopoly right of copyright holders indefinitely – for so long, at least, as the copyright continues to have a value sufficient to warrant enforcement of the copy-protection right. This is potentially a major encroachment on what is seen as the historic freedom of the public to share copyright works after expiry of the rights, though neither the European Commission and the European Court of Justice is likely to approve such use by one-time copyright holders of the copy-protection rights to extend the exclusivity of their control of a published work.
 At the very least Parliament cannot have intended a debate over the meaning of ‘technical’, such as that which bedevils the status of patent protection for software, to be introduced also in this context.
 Public Prosecutor v Jon Lech Johansen  ECDR 4, 194