New Study: Anti-Circumvention Laws Excessively Favours Rightsholders

By Drew Wilson

One of the issues brought up by activists in the Trans-Pacific Partnership (TPP) was that included anti-circumvention language. Now, activists have new evidence to back them up. A recently published study says that copy protection laws are excessively favoring the content industry.

Anti-circumvention laws are already a fact of life in the United States. Thanks to the Digital Millennium Copyright Act (DMCA), many content creators and business start-ups have to jump through new hoops just to use content that would have normally been allowed without the presence of copy protection. This is because breaking a piece of copy protection technology could legally be considered an act of copyright infringement. While individuals and organizations like the Electronic Frontier Foundation (EFF) have been working hard to put back in place exceptions through the regular review process that occurs in the US, people who innovate and remix have been still plagued with DMCA takedown notices from legacy industries on issues they originally thought would be perfectly legal.

Now, a new study (PDF) that has been recently published backs up a lot of what critics of anti-circumvention laws have been saying for years – that these anti-circumvention laws have excessively favored the content industries at the expense of everyone else including consumers and related industries. The study is entitled “Delineating the Scope of Protection for Technological Protection Measures in an Equitable Way: Approaches of US & EU – A Frame of Reference for China‚Äôs Legislation” and was put together by Wenqi Liu and Zheng Gu.

The study examined both US and UK law in this area so they could offer recommendations to the Chinese government on how to proceed with their copyright laws. It examined several cases involving copy protection including the “Agfa Monotype Corp & International Typeface Corp v Adobe Systems” case, the Finnish Content Scrambling System (CSS) case, the Zhejiang Fanya Ltd v Beijing Baidu Ltd case, and the Lexmark v Static Components case. After their examination, the study said, “Overall, the anti-circumvention rule, with very limited exemptions, excessively favours the content industries. Some access to and uses of copyrighted content in analog form are allowed under the fair use doctrine, but the story is totally different if the copyrighted content is in digital form and protected by TPMs.”

The authors go on to make recommendations to the Chinese government which includes this: “Chine, should take effective measures to optimize the copyright law in this context. Currently, Chinese copyright regime that has a very small category of exemptions seemingly heavily favours copyright holders. The facts that numerous Chinese consumers hope for interoperable application and that advanced companies utilize TPMs to limit competition indicate the necessity of embracing broader exemptions from anti-circumvention. […] This system should not only give sufficient incentives for innovation and value its contribution by granting exclusive control, but also appropriately leave room for subsequent creation and ensure public interests.”

It is particularly important to take note these observations given that there are numerous attempts to simply prohibit circumvention of copy protection happening right now in the world. That includes the Trans-Pacific Partnership and the Comprehensive Economic and Trade Agreement to name two examples. This also adds to an ever growing large body of literature that says that tightening certain rules on copyright will lead to a lot of collateral damage to the economy including attacking the large amount of money going to the US economy through Fair Use to name one example. Whether or not science is listened to on these issues while negotiators create these new laws in these trade agreements, however, remains to be seen.

Further Reading: Link to study (PDF)

Drew Wilson on Twitter: @icecube85

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