@eLaw.com.hk by yip tse & tang, solicitors + notaries 葉謝鄧律師行

Universal v. Reimerdes (a.k.a. the NY DVD case)

Eight major motion picture studios brought a suit under the DMCA against defendant, 2600 Magazine to enjoin it from publishing or linking to DeCSS, a computer program that circumvents the encryption on DVDs, called CSS.

According to the Electronic Frontier Foundation (eff.org), the case arises from 2600 Magazine's publication of and linking to a computer program called DeCSS in November, 1999 as part of its news coverage about DVD decryption software. DeCSS decrypts movies on DVDs that have been encrypted by a computer program called CSS. Decryption of DVD movies is necessary in order to make fair use of the movies as well as to play DVD movies on computers running the GNU/Linux operating system.

The Movie Studios have sued 2600 Magazine under the DMCA which prevents the publication of programs that can decrypt DVDs or other digital media. Most recently the law was used to frighten a Princeton Computer Science Professor, Edward Felton, from presenting a paper describing how to break proposed watermarks on CDs at a scientific conference.

At issue: Whether fair use, free software, linking and reverse engineering will survive the digital age.

The Digital Millennium Copyright Act ("DMCA") in the US

The Digital Millennium Copyright Act ("DMCA") was passed on 4th August 1998 by the House of Representatives, USA over the objections of scientists, librarians and cryptographers. As it has been interpreted by the courts thus far, the DMCA bans devices whose primary purpose is to enable circumvention of technical protection systems, and also prohibits the circumvention of technological protection or access control measures used by copyright owners. These are called the 'anti-circumvention provisions'.

The Electronic Frontier Foundation (EFF), a non-profit advocating organization on free speech and privacy commented that "DMCA is very bad news because it tilts the delicate balance between copyright and First Amendment too heavily toward the copyright holders. This is because circumventing access controls is necessary in order to make fair use and many kinds of ordinary, legal uses of DVDs, such as playing them on Linux machines."

Date: 29 May 2001

International Trend

International treaty supports and requires individual countries to legislate for digital rights management. The WIPO Copyright Treaty (Article 2H) contains an article titled 'Electronic Rights Management', which is as follows:

'One of the foundations of future electronic commerce are means to control access to protected works and to combine digital copies of works with information about the author of and/or the owner of rights in such work. The Copyright Treaty obligates the ratifying Member States to provide adequate legal protection and effective legal remedies against the circumvention of such access control or the removing or altering of such rights information.'

Electronic monitoring and workplace surveillance

As organizations adopt productivity enhancement policies and require employees to account for work in terms of billable hours, management is increasingly employing technology that can monitor and trace employees workplace activities. An example of this technology would be e-mail monitoring software that may record details of outbound and inbound messages sent from, or to, an E-mail account provided by the employer for work-related purposes. While most people would concede that it is an employer's right to be able to monitor, supervise and oversee employee's workplace behaviour, the use of information surveillance technology may potentially be in conflict with the data protection.

The following reading discusses the issue of workplace privacy. The sections entitled ‘Computer Monitoring’, ‘Electronic Mail and Voice’ and ‘Workplace Privacy Protections’ are most relevant to our discussion.

‘Employee Monitoring: Is There Privacy in the Workplace?’ http://www.privacyrights.org/fs/fs7-work.htm

Relevance between Digital Rights Management and their 'purchase'

When the owner a digital property 'sells' a digital product such as the music or songs contained in a CD, he is in fact selling a media containing the music or songs. He has not sold the rights underlying the products other than giving the buyer the right to listen and play for his private purpose.

Regarding a visual product such as text, photos or graphical works. There are several different types of use rights in the case of a consumer or end-user purchase, including:

· view only
· view and print
· view and copy
· view, copy and print
· time-limited use

If it is a sound recording product such as music, songs or movie. They include:

· play and listen only
· play, listen and copy

Use rights can be marketed individually or in different combinations. For example, a digital product can be marketed for viewing only. To protect digital rights, owners would look for technology so that it is incapable of being copied or printed unless permitted. Copying or printing would belong to other use rights requiring further compensation or payment to the right owner. This is called digital rights management. The most widely know example is DVD which is encrypted in such a way that the movie can only be played in certain region. That encryption technology has nevertheless been broken by computer program. Another example is the Secure Digital Music Initiative (SDMI) format which watermarks musical recordings to prevent duplication of the content. The encryption or watermark technology is often under challenge by technologists who consider circumvention being part of their research work or studies.

Digital Rights Management

Digital content is any type of digitised content of text, audio, visual, graphics and photos.

The use of the Internet as a channel for disseminating information has given rise to the problem as to how property rights in an electronic content products are managed. These digital content products are generally described as eBook, digital book, digital music, digital photos. The challenge of the Internet on these digital content products emerges out of the easy duplication, transformation through software and dissemination of the content over the Internet which is fast, trans-border and without cost barrier, and can be anonymous and hence not easily detectable or traceable.

Despite the challenge, digital content products remain to be a property protected by the copyright laws. The challenge remains to be a challenge. Digital rights owners have been investing on the effective management of there property rights through technology.

A digital property is digital content that is:

1. a proprietary right owned by someone who is usually the copyright owner or the authorised licensee, and

2. accessed electronically. Such access can be in the manner of viewing or playing on a computer, CD player, DVD player or MiniDisc Player or MP3 Player, depending on the format of the digital content.

Licensing of Musical Works

The musical industry has developed types of licences in respect of music-related works:

Mechanical Licence

Mechanical license permits a licensee to record, reproduce and distribute musical works in recording media such as records, cassette tapes, CD's, etc.

Synchronization and Videogram Licence

Synchronization license permits a licensee to bundle music together in timed relation with visual images or motion pictures to create a work combining the audio and the visual content. Programmes on TV or films may have part of their scenes supported with music as the background.

Public Performance Licence

Public performance licences permits the licensee to publicly perform the musical composition.

As the music-related works are frequently used in public performance by different people or organisations, this right is very often managed through collective agent. In Hong Kong, such collective agent is CASH. A licensee desiring to publicly perform a song would have to enter into a licence agreement with CASH. Such licensing would require payment of royalty.

New Media Licence

This is a developing area of licensing. The Copyright Ordinance has been built based upon conventional technology. The Internet has offered a new mode of distribution for multimedia productions and has posed as a challenge. Certain leading copyright agent such as America's RIAA has created the webcast licensing framework for 'broadcast' of music over the Internet.

Audio-visual Work

The Copyright Ordinance does not provide a specie of audio-visual work as a type of copyright work. Rather, audio-visual work is classified as 'film'. Film means 'a recording on any medium from which a moving image may by any means be produced'. By the definition, a video clip, no matter how primitive or home-made it is, belongs to a film and is protected by copyright.

The sound-track accompanying a film is to be treated as part of the film for the purposes of the definition of film. The director of the film is the author and hence the first copyright owner of a film.

The licensing of a film is much simpler if the composition does not include other copyright works such as musical recordings. Caution must be taken in respect of a film which may orginate from the adaptation of a literary work such as a novel. Copyright clearance requires the authorisation of the copyright owner of the novel for the production of the fillm.

Musical Work and Sound recordings

The Copyright Ordinance considers the following music-related productions as being copyright works:

· musical works
· sound recordings

The Copyright Ordinance has not given a meaning to musical work. By ordinary construction, it means the music in its written form. It is therefore separate from work having other protections namely recording of the singing performance by the pop-singer which should be classified as sound recording. In typical situation, the author of a song would retain copyright of the work as musical work. Alternatively, he would have his rights transferred to the record company in return of royalty obtained by the licensing agent. On the other hand, record producers and record companies would own the rights to sound recordings. That is achieved by the agreement with the pop-singer.

Music

Music is a very valuable type of multimedia work. When acquiring music-related rights, we must look into the divergent nature of rights surrounding music-related work.

According to the Copyright Ordinance, 'musical work ' means a work consisting of music, exlcusive of any words or action intended to be sung, spoken or performed with the music. Therefore, musical work means the music in its written form and not 'sound' representation.

A song sung by a famous pop-singer such as Andy Lau can be divisively shared among different owners or their agents. Licensing of those rights take forms provided by collective licensing agent such as CASH. If you have to produce a multimedia work using a song as the contnet, you may have to enter into agreement with a number of people such as author of the musical work, author of the lyric, music publisher, performing artist (i.e. pop-singer), record companies, performance rights organisations etc.

Licensing Multimedia Content

The improved powerfulness of personal computers, whether in terms of hardware or software, has eased the production and distribution of multimedia content. Multimedia production is no longer a costly work monopolised by TV or film commercials. Because of the widespread adoption of multimedia content as a form of informational production and distribution, production authors and content users must be familiar with the important elements of licensing in respect of multimedia productions.

The meaning of multimedia content would include music, video, audio works, sound recordings and any other audio-visual productions such as karaoke.