G. New Rights and Provisions Under The Digital Millennium Copyright Act, the
European Copyright Directive & Legislation That Did Not Pass
This Section discusses a number of new rights and provisions related to various areas of
copyright law that are contained in the DMCA and the European Copyright Directive. In
addition, this Section discusses a number of interesting rights and provisions concerning
copyright in the online context that were contained in proposed legislation that did not pass
Congress. These provisions are indicators of areas where future legislation and/or debate may
arise.
- Circumvention of Technological Measures and Rights Management
Information Under the DMCA
Both the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty
require signatories to establish certain obligations with respect to circumvention of technological
measures to protect copyrighted works and the preservation and use of certain “rights
management information.”
With respect to the circumvention of technological measures, Article 11 of the WIPO
Copyright Treaty and Article 18 of the WIPO Performances and Phonograms Treaty require
treaty signatories to “provide adequate legal protection and effective legal remedies against the
circumvention of effective technological measures” that are used by authors, performers and
producers of phonograms to restrict acts with respect to their copyrighted works that are not
authorized by the rights holders or permitted by law.^768
With respect to the preservation and use of rights management information, Article 12 of
the WIPO Copyright Treaty and Article 19 of the WIPO Performances and Phonograms Treaty
require treaty signatories to provide adequate and effective legal remedies against any person
performing any of the following acts knowing (or, with respect to civil remedies, having
reasonable grounds to know) “that it will induce, enable, facilitate or conceal an infringement of
any right covered by this Treaty or the Berne Convention”: (i) removing or altering any
electronic rights management information without authority or (ii) distributing, importing for
distribution, broadcasting or communicating to the public, without authority, copies of works
knowing that electronic rights management information has been removed or altered without
authority. The treaties define “rights management information” as “information which identifies
the work, the author of the work, the owner of any right in the work, or information about the
terms and conditions of use of the work, and any numbers or codes that represent such
information, when any of these items of information is attached to a copy of a work or appears in
connection with the communication of a work to the public.”
(^768) Shortly after the WIPO treaties were adopted, Assistant Secretary of Commerce and Commissioner of Patents
and Trademarks Bruce Lehman, who headed the U.S. delegation at the WIPO Conference, noted that this
provision is somewhat broader than the statutory language proposed on the subject in Congress before adoption
of the treaties. He noted that implementation of this treaty provision would therefore require new legislation.
“WIPO Delegates Agree on Two Treaties,” BNA’s Electronic Information Policy & Law Report (Jan. 3, 1997)
at 23.