Thailand Law Journal 2009 Spring Issue 1 Volume 12

Effect of technologies on protection of rights

As said above, with the power of internet these days, there is no need for hard copy of works. People can read freshly news from a newspaper or listen to a newly released song anytime, any place. Also, one can make several copies of those articles or songs instantaneously and those articles or songs can be transmitted to any location around the world instantly, while retaining copies on their notebook. Of course, this kind of distribution makes copyright industry worry about their works. Further, the traditional copyright protection does not give much confidence to them. Therefore, the copyright industry is turning to private measures, hence, the technological protection measure established as a "digital fences³³ to protect against copyright piracy. In other words, technological protection measures have been invented to control access to copyright works by a cryptography, password and digital signature that secure the access to the information and protect content³⁴ or `lock up' the copyright content. Of course, these technological measures provided more success than traditional copyright law.<sup>35</sup> Also, these technologies make a profit for copyright owners in the business strategies such as `price discrimination.'³⁶ Thereof, in this decade, there are many developments in this sort of technologies For example, recently, Sony invented the "copy protected" CD to prevent people from making copy in digital³⁷ Also, in motion picture, the DVD also cannot be converted to digital files under Content Scrambling System (CSS) technology.³⁸ Nevertheless, the copyright owners feel worried about the failure of technologies because some users can use a device to cheat these technologies (circumvention device). With this worry, the copyright industry attempts to approach copyright law again. But this time, copyright industries encourage the establishing of a new paradigm of copyright law to protect their technologies. The attempt of copyright industries in establishing this new paradigm law can be apparently seen. When WIPO treaties were adopted, there was a rule that obligated "contracting parties to provide adequate legal protection and effective the legal remedies against the circumvention of effective technological measure that are use by the author in connection with the exercise of their right"³⁹ In other words, WIPO treaty directly established an `anti circumvention' law to immunize copyright owners in their technologies. Pursuant to this WIPO treaty anti-circumvention provision, several signatories have enacted the law to implement this international obligation. The United States is the first to promulgate Digital Millennium Copyright Act (DMCA) in 2000 and the European Union also introduced the European Union Copyright Directive 2001. Further, The Digital Agenda Act was enacted in Australia. From this point, it can simply be said that the technological measure lead to harmonizing international copyright law in world communities.

However, there are many arguments surrounding this anti-circumvention provision. The anti circumvention provision may constitute problems because the anti circumvention may give too much authority to the copyright owner to control distribution of copyright material over the internet. Anxiety on this point can be seen on the case in A.M. Recorded & Napster Inc, where it was stated that
"The technologies of cyberspace, in combination with the protection of law, will produce greater control over the use of copyrighted material than the balance intended by Copyright Acti⁴⁰

In other words, it may be argued that the copyright owner has an absolute right to control over the digital environment. As some commentator said, the anti circumvention provisions create a new right over copyright law apart from the traditional copyright law. The new right is a right to control access to copyright works'.⁴¹ For example, in a hard copy world, when someone buys a book the right of the copyright owner is terminated in access to the content of this copyright material. He can access the book all the time whenever he needs but, in the digital world, the digital content is locked up by technological measures such as passwords or such an encryption technologies. The copyright owner in that digital content allows the user just one time access to their work. In other words, the users in the digital environment have to pay each time they want to enjoy the copyright works.

Of course, by this regard, there is problem about whether the copyright owner rights in anti circumvention provision may threaten the legitimate right of users in the public interest purpose, such as the `Fair Use' right. One argument arises at this point that the technologies threaten the `fair use' right because those encryption technologies cannot recognize who has a legitimate right to use the copyright material. Consequently, the legitimate user has to pay for the copyright material notwithstanding they deal with the work in the exception of fair use.⁴² For example, the legal student has to pay for his research if he wants to search an article in the digitized material notwithstanding he should not pay for this right according to the fair use doctrine because, in fair use theory, the payer should be a copyright owner. In other words, he cannot actually activate his legitimate right over a digital environment.⁴³

Further, the anti circumvention provision may threaten in freedom of expression over the technology because Copyright owners can exercise their right under this anti circumvention provision to stop activity that they believe impinges on its right, notwithstanding those activities happen for the benefit of scientific research and freedom of expression. As a result, any published discussion on security program or any encryption technologies that relate to the copyright owner's technologies may face a lawsuit with Copyright owners. For example, In the United States, Princeton Professor Edward Felten and his researcher teams received a cease-and-desist letter asserting anti circumvention violation from the Secure Digital Music Initiative (SDMI) when he tried to represent the result of his research that relate to SDMI's technological protection measure at an academic conference.⁴⁴

The last problem may occur on further evolution of anti circumvention provision. The problem is that anti -circumvention provisions may obstruct competition in some technologies. A good example can be seen in an American case. In Lexmark International Inc. v Static Control Components, Inc⁴⁵ Lexmark successfully eliminated an aftermarket laser printer cartridge vendor that offered-toner cartridges to consumers at low prices by obtaining a DMCA injunction in banning the printer microchip manufacturer (Defendant) for selling its SMARTEK chips, which enables aftermarket cartridge to work with Lexmark printer.⁴⁶ As result of this case, Lexmark and other manufacturers may also grant a monopoly to sell their laser printer toner without other competitors

33. See Bernt Hugenholtz, Copyright contract and technology-What will remain of the Public Domain? ( Paper present at the CRID Congress , in Namur,8-10 November 1999).
34. Tanya Aplin,Contemplating Australia's digital future: the copyright amendment (Digital Agenda) Act 2000 (2001 ) 23(12) European Intellectual Property Review 565, 574.
35. The traditional copyright does not incorporate with digital environment and also the litigation is so expensive, see
Terese Forged, USvEU anti circumvention legislation: Preserving the public's privilege in the digital age(2002)24(1 1 )) European Intellectual Property Review 525.
36. Jane C. Ginsburg, essay from having copies to experiences works: the development of access right in U.S copyright law(2003)50 Journal of the Copyright Society of the U.S.A. 1 13,125.
37. Gwendolyn Marino, "Copyright Protect CDs Slide into Stores,"(2002) CNET news website, < http://news.com.com/ 2100-1023-835841.html>. at 11 June 2004.
38. See Universal City Studio, Inc v Corley 273 F. 3d 429 2002.
39 WIPO Copyright Treaty Article 1 1.
40. A&M Record Inc. v Napster, Inc f 3d. 1 004 (9'0 Cir 2001) at 30-31 See also Electronic Privacy Information Center `In a matter of Digital Entertainment and Rights Management :Comment of the electronic Privacy Information Center' (Paper present at Department of Commerce, Washington DC 17 July 2002).
41. See Kamiel J koelman, A hard nut to Crack: The Protection of Technological Measures(2000) 22 European Intellectual Property Review 272,274-75.
42. Dean S. Mark , Technical Protection Measures : the intersection of technology, law and commercial license,(2000) 22 European 22(5) European Intellectual Property Review 19 8,202.
43. Ginsburg, above n.37, 127.
44. In this incident, the SDMI issued a public challenge encourage skilled of technologist to try to defeat certain water marking technologies. See James D. Nguyen, code breaking,(2004) 27 Los Angeles Lawyer 33,38.
45. 253 F Supp.2d 943 (E.D.Ky.2003).
46. In this case, SMARTTEK chip were claim as a technology which circumvented certain 'authentication routine' between Lexmark toner cartridges and printers because Lexmark add these 'authentication routines' explicitly to hinder after market toner vendors. See "Unintended Consequence: Five years under the DMCA, Electronic Frontier Foundation website < http://www.eff.org/IP/DMCA/unintended_consequences.php> at 1 1 June 2004.

This article is published with the kind permission of Thiti Susaoraj, Judge Trainee. This article originally appeared in Volume 54, No. 3, September – December 2007 edition of Dulapaht Law Journal.