An analysis of Article 11 of the WIPO Copyright Treaty in the Digital Millennium Copyright Act and the European Copyright Directive. 10 The provisions on copyright infringement are contained in Section 23 of the Copyright Act.
Introduction
The Diplomatic Conference
74 Basic proposal for substantive provisions of the Treaty for the Protection of the Rights of Performers and Producers of Phonograms for consideration at the Diplomatic Conference CRNRJDC/S available online http://www.wipo.int/documents/en/diplconf/Sdcpre. htm (access date: 21 February 2005). 75 The Chairman of the Committees of Experts also proposed a third basic proposal for discussion at the Diplomatic Conference: 'Basic proposal for essential provisions of databases' See Memorandum (note 66 above) paragraph 14.
Analysis of the WIPO Copyright Treaty
- The Right of Communication to the Public
- The Right of Distribution
- The Formulation of Article 11 of the WeT
- The Nature of Legal Protection of Article 11
Pursuant to Article 9(2) of the Berne Convention, the three-step test applies to exceptions to the right of reproduction. 165 These are the exclusive rights of the copyright owner and relate specifically to the protection of copyright.
Conclusion
At the same time, the WCT states that the enforcement of limitations of and exceptions to the exclusive rights of the copyright owner is equally important in the digital age. It is submitted that the provisions of the WCT, supplemented by the preamble, illustrate WIPO's commitment to preserve the traditional enforcement of limitations and exceptions, particularly in the interests of education, research and access to information. It is submitted that the provisions of the WCT similarly recognize that the legal protection against the act of circumventing technological measures, used by copyright owners to protect their works from copyright infringement, is essential for infringing purposes.
The preamble to the WCT states that it is essential to maintain the delicate balance between the rights of the copyright holder and the interests of the public to apply exceptions such as fair dealing, while ensuring protection of technological measures.
Introduction
Summary of the Anti-Circumvention and Anti-Trafficking Provisions of section 1201 of the DMCA
- The Nature and Scope of the Legal Protection of section 1201(a)(1)(A)
- Exceptions to Section 1201(a)(1)(A)
- The First Rulemaking Proceeding
- The Second Rulemaking Proceeding
- The Shortfalls of the Rulemaking Proceedings
Section 1201 of the DMCA204 governs the provisions relating to the legal protection of technological measures. Each of the aforementioned provisions of Section 1201 of the DMCA will be discussed in turn. This access is analogous to the copyright holder's right to distribute copies of the work.234.
It is further submitted that under section 1201(a)(1)(A), the user would effectively be prohibited from circumventing the access control measure in order to engage in fair use of the content of the protected information.
Analysis of the Effect of Section 1201(a)(2) and Section 1201(b)
- The Nature and Scope of the Anti-Trafficking Provisions
Next, an analysis of the courts' interpretation of the anti-trafficking provisions will be made. It is reiterated that the anti-circumvention provisions of the DMCA do not prohibit circumvention of a rights control measure. The case of Sony Corporation of America v. Universal City Studios, Inc329 was settled before the enactment of the DMCA.
From the analysis of the above-mentioned cases, it is evident that the courts have interpreted the anti-trafficking provisions to the detriment of the application of traditional copyright exceptions such as fair use.
The Interface between the Legal Protection of Technological Measures in Section 1201 and Traditional Exceptions to Copyright
- The Preservation of Exceptions to Copyright: The Relation between Section 1201(c)(1) and Section 1201(a)(1)(A)
- The Relation between Section 1201(c)(l) and Sections 1201(a)(2) and 1201(b)
Congress never intended to allow the enforcement of copyright exceptions to the application of section 1201(a)(1)(A). It is further argued that even if the provision of section 1201(c)(1) could possibly be applied to overcome the effect of section 1201(a)(1)(A), the next issue to be determined is whether the effects of the anti-trafficking provisions will impede the enforcement of this section. Accordingly, even if section 1201(c)(1) permits the circumvention of an access control measure to enable fair use of the content of the protected work, it is submitted that section 1201(a)(2) and section 1201(b) prohibits the manufacture and distribution of the very device that would facilitate such circumvention. In the circumstances, section 1201 (c)(1) cannot be reconciled with the effect of the anti-trafficking provisions.
It is argued that this assessment shows that the general purpose of the provisions of section 1201(c)(1), to promote the enforcement of exceptions such as equity, has been codified only in principle and is accordingly a legal fiction.
The Relation between Rights Control Measures and Exceptions to Copyright
It is well established that devices that enable even legitimate, non-infringing uses such as fair use would be prohibited. It has been determined that Section 1201(b) effectively prohibits the only tools that would enable circumvention for legitimate, non-infringing purposes of a technological measure deployed to protect the rights of the copyright holder. This analysis illustrates that the provisions of Article 1201(c)(l) and the objective of refraining from an act of circumvention of a violation of a rights control measure are incompatible with the prohibitions contained in Article 1201(b).
Summary of the Impact of the Anti-Circumvention and Anti-Trafficking Provisions of the DMCA on the Delicate Balance of the System of Copyright
Internet.362 However, it has been argued that the strong provisions of the DMCA negate the enforcement of exceptions to copyright in the first place, with the result that the delicate balance of the copyright system has been compromised. It is further argued that this consequence is reinforced by the courts' interpretations of the provisions of the DMCA.
Conclusion: The Deficiencies of Section 1201
In summary, it is agreed that the provisions of the DMCA should be revised.375 It is stated that the legal protection of access control measures should be abolished. It is argued that the above revisions would ensure compliance with the provisions of WCT377 and restore the delicate balance of the copyright system. The next section conducts a comparative analysis of the implementation model of the provisions of Article 11 of the WCT by the European Union.
377It is recognized that Article 11 WCT only covers an act of circumvention.
Part B: Implementation of Article 11 Of The WCT by the European Union - The European Parliament and Council Directive of 22 May 2001 on the
- Introduction
- Summary of the Anti-Circumvention and Anti-Trafficking Provisions of the Directive: Article 6(1) and Article 6(2)
- Analysis of the Legal Protection against the Act of Circumvention of Technological Measures
- Analysis of the Legal Protection against the Trafficking in Circumvention Devices
- The Interface Between the Legal Protection of Technological Measures and Exceptions to Copyright
- Article 5: Limitations of and Exceptions to Copyright
- Conclusion
In this regard, the exclusion of rights control measures from the anti-circumvention provisions of the DMCA was found to be immaterial.397. 407 Article 2 of the Directive refers to the right of reproduction, which Member States must transpose into their national legislation. 430Esler (note 317 above) 601–602, where he argues that the voluntary measures requirement of Article 6(4) 'presupposes collusion between right holders and others to standardize (and thereby limit) the technological means available to consumers for application of exceptions under Article 5 of the Directive".
It is argued that the analysis of the provisions of Article 6(4) reflects an inadequate attempt to reconcile the enforcement of exceptions to copyright with the legal protection of technological measures.
Introduction
Following the adoption of the WCT at a diplomatic conference and in 2000, the South African Department of Communications acknowledged in its Green Paper on Electronic Commerce488 that the current legislation protecting intellectual property in South Africa is not equipped to deal with the advanced issues of the digital age.489 The Green Paper is even more important. found that the Internet had distorted the traditional theories underlying current South African copyright law.49o. The Ministry of Communications therefore recommended that it is imperative to create a legislative system that would adequately respond to the development of technologies, the emergence of the Internet and ensure adequate protection of rights in the digital environment.491
Analysis of the Copyright Act
Scope of Copyright Protection
For a work to be eligible for copyright protection, it must be original.492 The work must be further recorded, recorded, represented in digital data or signals, or otherwise reduced to material form.493 This requirement of reduction to material form does not apply to a broadcast or transmission signal. program.494 The broadcast will be subject to copyright protection when it is broadcast495, and the program transmission signal when it is broadcast.496 There are no formal requirements for the existence of copyright in the work. 497 In these circumstances copyright automatically exists provided that.
The Exclusive Rights of Copyright Owners
- The Right of Reproduction
- The Right of Communication to the Public
In other words, it is the extent of protection that a copyright owner would have in the digital environment in terms of the right to reproduce. 509 However, there was general agreement that all temporary acts of reproduction must fall within the scope of the right to reproduction as contained in the Berne Convention.510. Implementation models of WCT from different countries show that temporary acts of reproduction are explicit.
It is agreed that these exceptions could have been excluded from the scope of the right of reproduction simply by applying the provisions of art.
Infringement of Copyright
- Direct Infringement 553
- Indirect Infringement 560
It is therefore argued that the Copyright Act needs to be amended accordingly to comply with the provisions of Article 8 of the WCT. The following section discusses the provisions of the Copyright Act relating to infringement of the copyright owner's exclusive rights in the digital context. This chapter found that a broad interpretation of the right to reproduce in the Copyright Act would include the storage of content in digital form in or on an electronic medium such as the Internet.
564 The Copyright Act requires the infringer to have had knowledge of the infringing copy.
Limitations of and Exceptions to Copyright
579section 12(1)(b), section 16(1), section 17 and section 19B(1) of the Copyright Act respectively provide that this exception also applies to cinematographic films, sound recordings and computer programs. It is illustrated that the Diplomatic Conference,598 in an effort to avoid this potential risk for the application of exceptions in the digital environment, carefully worded the provisions of the WCT. In addition to the reasons mentioned in paragraph 1 of this section, it is submitted that the implementation of Article 11 of the WCT would act as a deterrent and would be helpful in reducing mass copyright infringements in the digital age.
Considering the finding that the anti-circumvention and anti-trafficking provisions of the United States and the European Union are detrimental to the enforcement of non-infringing activities such as exceptions in the digital environment, it is suggested that the legal protection of technological measures in South Africa must include the following essential elements:-.
Conclusion
Broad technological protection afforded to the copyright owner, like the models in the DMCA and the Directive, could potentially extend the rights of copyright holders beyond the natural boundaries of copyright. 77 of June 15, 1999 and the Japanese Unfair Competition Law, to the detriment of the enforcement of the copyright exception, is preferred. This is done in recognition that adequate copyright and technological protection can be provided in connection with WCT, which respects the traditional system of copyright.
It has been established that the provisions of the WCT provide a balanced framework for transposing the system of copyright protection to the digital age.626.
