This subsection 1 discusses the implementation of these rights in the DMCA. The
following subsection 2 discusses the implementation of these rights under the European
Copyright Directive.
The four bills that were introduced in Congress to implement the WIPO treaties adopted
one of two approaches to the circumvention of technological measures and rights management
information. The first approach, contained in H.R. 2281 and S. 2037 and ultimately adopted in
the DMCA, outlawed both conduct and devices directed toward or used for circumventing
technological copyright protection mechanisms. The second approach, contained in S. 1146 and
H.R. 3048 but not passed by Congress, outlawed only conduct involving the removal or
deactivation of technological protection measures. Although Bruce Lehman conceded that the
WIPO treaties do not mandate adoption of a device-based approach, he and other supporters of
this approach argued that a conduct-only approach would be difficult to enforce and that
meaningful legislation should control the devices used for circumvention.^769
The DMCA adds several new provisions to the Copyright Act, which are contained in a
new Chapter 12.
(a) Circumvention of Technological Protection Measures(1) Prohibition on ConductSection 1201(a)(1) of the DMCA outlaws conduct to circumvent protection mechanisms
that control access to a copyrighted work: “No person shall circumvent a technological measure
that effectively controls access to a work protected under this title.” Note that this provision
does not expressly require either knowledge or intent, and is therefore potentially very broad in
its reach – the language states that the mere act of circumvention is a violation, and does not
expressly require that an infringement follow the circumvention act (although some courts have
grafted such a requirement as discussed below). Section 1201(a)(3) defines “circumvent a
technological measure” as “to descramble a scrambled work, to decrypt an encrypted work, or
otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the
authority of the copyright owner.” That section further provides that a technological protection
measure “effectively controls access to a work” if “the measure, in the ordinary course of its
operation, requires the application of information, or a process or a treatment, with the authority
of the copyright owner, to gain access to the work.”
Section 1201(a)(1) provides that the prohibition on circumventing a technological
measure to gain unauthorized access to a work does not take effect until the end of a two-year
period beginning on the date of enactment of the bill – the two year waiting period expired on
October 28, 2000, and the prohibition is now in effect.
(^769) Cunard & Coplan, “WIPO Treaty Implementation: Debate Over OSP Liability,” Computer Law Strategist (Oct.
1997) 1, 3.