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Privacy Law and Policy Reporter (PLPR)
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Gunning, Patrick --- "Digital Millennium Copyright Act (US) - profiling access to encrypted copyright works" [1999] PrivLawPRpr 14; (1999) 5(8) Privacy Law & Policy Reporter 160

Digital Millennium Copyright Act (US) — profiling access to encrypted copyright works

Patrick Gunning

The WIPO Copyright Treaty (the Treaty) of December 1996 provides in art 11 that:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their [copyright] rights... and that restrict acts, in respect of their works, which are not authorised by the authors concerned or permitted by law.

The purpose of art 11 is to foster the use by authors and publishers of technological measures designed to regulate access to copyright works in digital form. For example, an online newspaper publisher might allow free access to material for a period of a week after publication and, thereafter, require payment. Depending on the commercial model adopted by the copyright owner, the owner may seek to maintain records of the identity of persons accessing material. This, of course, raises privacy issues.

On 28 October 1998 President Clinton signed into law a bill passed by both Houses of the US legislature known as the Digital Millennium Copyright Act. It is a response by the US to the Treaty, and implements art 11.

The provisions relating to art 11 are found in a new Ch 12 of title 17 of the US Code. Section 1201(a)(1)(A) prohibits a person from ‘circumvent[ing] a technological measure that effectively controls access to a work’. However, the prohibition will not take effect for two years from enactment. Copyright users were concerned that the prohibition would have an adverse impact on their ability to rely on traditional fair use defences. The Librarian of Congress has been charged with the responsibility of investigating whether copyright users are likely to be adversely affected by the prohibition in their ability to make non-infringing uses of particular classes of copyright works. In particular, one of the matters the Librarian must have regard to is the impact the prohibition has on criticism, comment, news reporting, teaching, scholarship or research (interests taken into account in determining whether a particular use of a work is a fair use that does not infringe copyright). If the Librarian finds the prohibition will adversely affect non-infringing use of copyright material, the prohibition will not apply for a period of three years from the date of the Librarian’s findings (with a three yearly review). There are a number of other restrictions on the prohibition. From a privacy perspective one is of particular interest.

Section 1201(i) provides that it is not a violation of the prohibition for a person to circumvent a technological measure that effectively controls access to a work if:

(a) the technological measure, or the work it protects, contains the capability of collecting or disseminating personally identifying information reflecting the online activities of a natural person who seeks to gain access to the work protected;

(b) in the normal course of its operation, the technological measure, or the work it protects, collects or disseminates personally identifying information about the person who seeks to gain access to the work protected, without providing conspicuous notice of such collection or dissemination to such person, and without providing such person with the capability to prevent or restrict such collection or dissemination;

(c) the act of circumvention has the sole effect of identifying and disabling the capability described in subpara (a), and has no other effect on the ability of any person to gain access to any work; and

(d) the act of circumvention is carried out solely for the purpose of preventing the collection or dissemination of personally identifying information about a natural person who seeks to gain access to the work protected, and is not in violation of any other law.

This exception was introduced following testimony by privacy advocates at the committee hearings held by the Congress in July 1998. It goes a considerable way towards encouraging copyright owners to devise technological measures to protect their works in a privacy friendly manner.

Another exception that is of interest is s 1201(g), which authorises circumvention in some circumstances for the purposes of encryption research.

In the Australian Government’s Digital Agenda discussion paper and sub-sequent statements from the Attorney General and the Minister for Commun-ications, it appears likely that Australia will also implement art 11 of the Treaty. It will be interesting to see if the exposure draft legislation (expected later this year or early in 1999) contains exceptions along the lines of those described above.

Patrick Gunning, Senior Associate, Mallesons Stephen Jaques.

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