WIPO Copyright and Performances and Phonograms Treaties Implementation Act - Section 103

Section 103

Section 103 provoked most of the controversy which resulted from the act. It is often called DMCA anti-circumvention provisions. It restricts the ability to make, sell, or distribute devices which circumvent Digital Rights Management systems, adding Chapter 12 (sections 1201 through 1205) to US copyright law.

Section 1201 makes it illegal to:

• (1) "circumvent a technological measure that effectively controls access to a work" except as allowed after rulemaking procedures administered by the Register of Copyrights every three years. (The exemptions made through the three-yearly review do not apply to the supply of circumvention devices, only to the act of circumvention itself.)
• (2) "manufacture, import, offer to the public, provide, or otherwise traffic in" a device, service or component which is primarily intended to circumvent "a technological measure that effectively controls access to a work," and which either has limited commercially significant other uses or is marketed for the anti-circumvention purpose.
• (3) "manufacture, import, offer to the public, provide, or otherwise traffic in" a device, service or component which is primarily intended to circumvent "protection afforded by a technological measure that effectively protects a right of a copyright owner," and which either has limited commercially significant other uses or is marketed for the anti-circumvention purpose.
• sell any VHS VCR, 8 mm analogue video tape recorder, Beta video recorder or other analogue video cassette recorder which is not affected by automatic gain control copy protection (the basis of Macrovision), with some exceptions.

The act creates a distinction between access-control measures and copy-control measures. An access-control measure limits access to the contents of the protected work, for example by encryption. A copy-control measure only limits the ability of a user to copy the work. Though the act makes it illegal to distribute technology to circumvent either type of copy protection, only the action of circumventing access-control measures is illegal. The action of circumventing a copy-control measure is not prohibited, though any copies made are still subject to other copyright law.

The section goes on to limit its apparent reach. The statute says that:

• it will not affect rights, remedies, limitations, or defenses to copyright infringement, including fair use;
• it is not necessary to design components specifically to use copy protection systems;
• "nothing in this section shall enlarge or diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products";
• circumvention for law enforcement, intelligence collection, and other government activities is allowed;
• reverse engineering to achieve interoperability of computer programs is allowed;
• encryption research is allowed;
• systems to prevent minors from accessing some internet content are allowed to circumvent;
• circumvention to protect personal information by disabling part of a system is allowed; and
• security testing is allowed.

In addition, the statute has a "primary intent" requirement, which creates evidentiary problems for those seeking to prove a violation. In order for a violation to be proved, it must be shown that the alleged violator must have primarily intended to circumvent copyright protection. However, if the primary intent is to achieve interoperability of software or devices, the circumvention is permitted and no violation has occurred.

Section 1202 prohibits the removal of copyright management information.

On balance, it is difficult to say whether the Act expands copyright enforcement powers or limits them. Because it does not affect the underlying substantive copyright protections, the Act can be viewed as merely changing the penalties and procedures available for enforcement. Because it grants safe harbors in various situations for research, reverse engineering, circumvention, security, and protection of minors, the Act in many ways limits the scope of copyright enforcement.