Post TPP Deep Dive: Copyright and Digital Locks

This post is the second in a series of blog posts examining Public Knowledge’s concerns with the proposed copyright provisions of the Trans-Pacific Partnership (TPP). Yesterday we discussed copyright presumptions that favor copyright owners in litigation, and today we examine the parts of the TPP that use copyright law to prohibit users from circumventing digital locks over works.

For the time being, this series is examining the US’s copyright proposals for the TPP [pdf] from February 2011, which is the most recent text that is publicly available.

Digital Locks in US Law

The US laws that address digital locks are called the “anticircumvention” provisions, so named because they prohibit the circumvention of digital locks. These provisions are found in sections 1201-1204 of Title 17 in the US federal law.

The anticircumvention provisions prohibit users from circumventing digital locks that protect copyrighted works. The provisions also prohibit trafficking or offering any goods or services designed to circumvent digital locks. So, for example, breaking the DRM on your DVDs to watch them on a device that does not read DVDs would violate the anticircumvention rules.

Users who violate these provisions can be sued in court by private parties or might even be charged in criminal court, depending on the severity of the offense and whether it was committed for commercial gain. As discussed below, every three years the Librarian of Congress can grant temporary exemptions that permit users to break digital locks on particular categories of works for particular uses.

Mirroring US Law in the TPP

The digital locks provisions of the TPP, found in Article 4.9 of the proposed text, mirror US anticircumvention law in alarming detail. The text is also significantly more restrictive than Article 11 of the World Intellectual Property Organization (WIPO) Copyright Treaty, which was the basis for the enactment of the DMCA. The WIPO Copyright Treaty merely requires that WCT members “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.”

This is concerning because US anticircumvention law recalibrates the relationship between copyright owners and users in a manner that undermines user rights to access content. It does this by preventing lawful uses of content that is under a digitial lock. US law is also complicated—its prohibitions are set out in great detail, and the ways it interacts with US copyright law, administrative law, and agency rulemaking are complex.

When the TPP imports so many of those intricacies into an international agreement it deprives all of the TPP countries—including the US—of the ability to amend or correct the details of the law going forward. If the TPP effectively enshrines every detail of the US’s current anticircumvention law, possible future efforts to update the law in the US will face the additional political barrier of breaching an international agreement. And other countries would be forced to accept an entire regime that is ill-suited to their individual situations, without consideration for their unique governance structures, administrative processes, or economic needs.

Differences Between US Law and the TPP: Death by a Thousand Cuts

Oddly enough, despite the vast number of TPP digital locks provisions that are almost taken verbatim from US law, upon closer examination the digital locks provisions in the TPP actually do vary from US law in several ways. Each divergence is relatively small on its own, but the differences add up to a significantly more restrictive anticircumvention regime.

This means that the TPP digital locks regime imposes more restrictions on users of digital technology and more liability for the companies that serve those users.

Here are a few examples:

Liability even without copyright infringement: The TPP requires its member countries to make circumvention an offense even if the user was circumventing for a lawful purpose—ie, even if he never actually infringed copyright. Courts in the US are still in conflict over whether US law requires infringement as part of a circumvention offense. But even if US law coincides with the TPP on this point, the TPP would erect a political barrier to any future efforts to rethink circumvention law so that it would not prohibit breaking digital locks for lawful purposes.

Offering or selling goods and services: US law prohibits trafficking in products or services that are “designed for the purpose of circumventing” digital locks. The TPP has a provision that is almost exactly the same as the US provision, but expands liability for products and services designed “for the purpose of enabling or facilitating . . . circumvention.” The TPP thus expands liability to greater swath of companies that provide goods or services that someone else uses to break a digital lock, even if the good or service does not itself actually break digital locks.

Mandatory imprisonment: The TPP digital locks and enforcement provisions require countries to actually impose prison sentences for criminal anticircumvention violations. In contrast, in the US, criminal anticircumvention offenses are punishable by jail or fines, giving the courts more leeway to avoid prison sentences when appropriate.

Damages for innocent offenses: Under US law, courts have discretion to reduce damages for innocent violations of the digital locks provisions, and courts actually must reduce damages for innocent violations by libraries, archives, and educational institutions. The TPP has no such exceptions for innocent violations, and actually requires TPP countries to give their courts authority to let copyright owners choose between actual and statutory damages in all cases.

Higher standard for exceptions: In the US, the Library of Congress can grant temporary exemptions from the anticircumvention rules every three years for particular uses of categories of works. The statute that authorizes the Librarian to make these exemptions tells him or her to determine whether “users of a copyrighted work are, or are likely to be . . . adversely affected by [the anticircumvention rules] in their ability to make noninfringing uses[.]” The TPP contemplates a process that is extremely similar to the US process (are you noticing a pattern?), but the TPP requires that proponents of exemptions prove their case by “substantial evidence.” This somehow manages to tie the US and other countries down the current state of a fairly complicated intersection of copyright, para-copyright, and administrative law, while also going beyond the current state of the law. This also makes it that much harder for countries to permit circumvention for lawful uses.

This list is not exhaustive, but gives you a general idea of how the TPP makes many small, technical, seemingly insignificant changes that add up to a noticeably more restrictive, user-unfriendly digital locks regime.

For more information and updates about the TPP, or to tell President Obama that you think the TPP process should benefit from greater transparency and more public input, visit our website at www.tppinfo.org.