EU: ACTA Digital Lock Rules Don’t Cover Access Controls

Newly leaked documents produced by the European Commission provide insight into the EU’s view on the ACTA Internet enforcement chapter.  The analysis confirms what should be obvious from the text – ACTA retains the flexibility that exists at international law in the digital lock rules by linking circumvention with copyright infringement.  The EU interpretation again demonstrates that the Bill C-32 digital lock rules go far beyond what is required within WIPO and now within ACTA.  Indeed, the European Commission states unequivocally that ACTA does not cover access controls nor acts not prohibited by copyright (would could include fair dealing).  This provides further evidence that compromise language that links circumvention with actual copyright infringement is possible within Bill C-32 that will still allow Canada to be compliant with WIPO and ACTA.

The full European Commission analysis:

As far as technical protection measures (TPMs) are concerned the aim of this provision is that only circumvention undertaken to commit an IP infringement can be made subject to civil or criminal liability.

The Commission reads the provision of paragraph 2.18.5, including the definition provided in footnote 14, as implying that all protection granted to TPM are limited to providing adequate legal protection and effective legal remedies against the circumvention of TPM, as long as:

–    the TPM are effective (TPM themselves are not a form of copyright or neighbouring rights);

–    the TPM are used by authors, performers or producers of phonograms in connection with the exercise of their rights (i.e., TPM used by any other group, such as broadcasters, to control access to scheduled programmes are not protected, TPM used by the group of beneficiaries to achieve goals not linked to protecting their copyrights (“access control”) are not protected either); 

–    the TPM are used to restrict acts, in respect of works, performances or phonograms, which are not authorised by authors, performers or producers of phonograms or are not permitted by law – this essentially implies two things:

(1)    acts not prohibited by copyright, such as browsing, linking, … cannot be prevented by using TPM; and

(2)    TPM cannot be used to override statutory exceptions (“permitted by law”).

In order to clarify the concerns in relation to “access control”, it is the view of the Commission that with the current definition given in footnote 14 it cannot be inferred that copyright allows rightholders to prohibit certain forms of “use” and thus prevent access to works.  This form of “usage” control is not part of the EU acquis.

As international and domestic laws currently stand, copyright and related rights allow the right holder to prevent certain acts such as reproductions, fixations, adaptations, the distribution of copies and the communication to the public (including making a work available to the public in an interactive manner). None of these restricted acts should be confused with a right to prevent use (e.g., reading, viewing) of a work. Any attempt to expand copyright to cover “use” would muddle the distinction between IP and conditional access. The Commission cannot follow an approach where controlling access to services is mixed with the infringement of IP rights.

In these circumstances the reference to access control is highly sensitive. The only way acceptable by the Commission in the ACTA text was by adding a caveat to footnote 14 which read as follows: “without prejudice to the scope of copyright or related rights contained in a Party’s law…” 

By doing that, the definition in footnote 14 does not extend the scope of protection to encryption devices or other tools to control access independently to the exercise of their rights by authors, performers or producers of phonograms.


  1. Very well stated. Very clearly indicating that protection of TPMs is NOT a copyright issue…and rightly so!! It’s a fisrt step, in all reality TPMs are really a contract/licensing issue and shouldn’t even be mentioned in a copyright law. Between this and the EU plans to loosen copyright AND the US giving up on digital lock protection for legal uses, hopefully our dingbats in Ottawa actually “get it” before they lock us in to a stupid law no one will follow.

  2. Unfortunately
    IamME, I agree, however the problem I see is the statement: “The Commission reads the provision of paragraph 2.18.5, including the definition provided in footnote 14, as implying that all protection granted to TPM are limited to”. Note the use of the terms “reads” and “implying”.

    This leaves open an avenue for those who don’t agree to try to convince the EU, the governments involved, and the courts, that they were reading something into the treaty that isn’t actually there. The same argument could be made in Canada to the government and to the courts.

    Note that it may not be possible to get the text changed to state this explicitly; I suspect that the text was left this way so the US could use it to pressure other countries via the USTR 301 report.

  3. We stand on guard for thee …
    I have to say that it is easy to become jaded in respect to the motivations and aligencies of our public officials but the momentum of public opinion does ultimately have it’s say. The EU and even the US now have positions on TPM circumvention that are looser than that of our proposed Bill C-32. All the opposition parties have also spoken against the bills implementation on this issue.

    All together, this gives the conservatives the wriggle room to amend the digital locks provision and still save face with the USA, or at least have a defensible position. To not do so at this point will speak volumes to the actual influences in play here and be a disservice to Canadians.

  4. My daughter (she’s 5) sings it ‘We stand on gaurd for meeeeeee’, I always thought she was mis hearing the lyrics, who knew she was singing the corporat version.

  5. What ACTA is all about
    Interesting reading here:

    But forget Microsoft for a while and concentrate on this paragraph:

    ““This is the postindustrial United States,” he says. “We will make other governments around the world go around enforcing rights primarily held by Americans. This is a very important part of American thinking around how the country will make its living in the 21st century.” ”

    In other words, now that US doesn’t manufacture anything anymore, they want those that do to pay them royalties.


  6. RE: Napalm
    very correct Nap. Microsoft, for example, is largely becoming nothing more than a patent troll, and is one of several corporations trying to push software patent law on every country.

    Really quite sickening.

  7. Digital lock rules only change in Bill C-32?
    Do I dare say that downloading for personal use
    will become illegal, once this bill is passed?
    Will there be enough opposition against the
    Conservatives to still keep the levy in place?

    The public was able to knock Bill C-61 off the
    table last year, which in fact was very similar
    to the copyright bill that’s going to committee
    right now.

    I guess there weren’t enough people willing to
    protest for what they believed in? Not enough
    pressure being put on our elected officials to
    make changes to the bill, in order to make it more
    fair for the consumer?

    The I see it right now, the exclusion of digital
    locks on items such as CD’s, may happen.Not saying
    it will. It’s just guessing on my part from what
    had been posted from the 1st and 2nd readings on
    Bill C-32. Looks like the digital lock rules may,
    and I say may be excluded from it/ or modified.
    That’s the only thing it looks to me will be the
    only change to the current copyright bill.

  8. A man who defends an indefensible position is either dishonest or stupid …
    C-32’s digital locks provision is a central element of the bill and those who argue against it are wrong, Moore said in the House during question period.

    @James Moore “If people want to hack around that or break a digital lock without that person’s (a creator’s) consent, that person has the right to protect his or her own intellectual property,” he says. “It should be illegal for one to hack somebody else’s property and to steal it and put it onto BitTorrent and spam it around the Internet and degrade people’s capacity to actually make a living on what they are doing.”

    Digital locks WILL NOT prevent the above activity, pirates don’t care or are impeded by them. It only prevents law abiding paying customers from exercising valid fair use rights, such as putting a purchased DVD on their iPod. Minister Moore knows this and blowing by it in defense of lobbyist wishes, or doesn’t understand this and thus is not fit to oversee this portfolio.

    For goodness sake, Mr. Morre’s diatribe is getting tiresome. When the review committee [insert optimism here] amends the TPM circumvision section of C-32 I hope Mr. Moore takes the time to step back and reflect on his spectacular performance this past year.
    -RANT 😉

  9. I totally agree with Crockett
    “Digital locks WILL NOT prevent the above activity, pirates don’t care or are impeded by them. It only prevents law abiding paying customers from exercising valid fair use rights, such as putting a purchased DVD on their iPod. Minister Moore knows this and blowing by it in defense of lobbyist wishes, or doesn’t understand this and thus is not fit to oversee this portfolio.”

    Yes, this is obvious to you an I and those of us with technical backgrounds. Even more so if you’ve been around since before the days of public Internet. Internet piracy as defined today is as older than the public Internet and goes back to the days of BBSs. In those days, the mid to late 80’s, it was usually dinky little programs or pictures, yes p0rn, since that’s all you could feasibly get on a 300buad modem. Before that, my GAWD, we had to copy things to a floppy disk and actually share things that way and in reality it was quite often faster to drive to a friend’s house and put something on a floppy to get it than it was to download it.

    Moore is less than 3 years younger than me…not so young that he should not be aware of some of these things…and you know what, he looks to be in his mid-40s. Too much good living from all those corporate endorcements I guess.

    Commercial pirates and those ripping for groups such as “Anonymous” or “LOL-Cats” have huge safety nets and an enormous amount of security to ensure they don’t get caught. To my knowledge no Internet ripping group or even individual member has ever been caught. Let me tell you about my dark days as a “pirate” and perhaps it’s shed some light on what C-32 purports to be up against. This was more than 10 years ago now, after Napster, but before bittorrent. I ripped for a now defunct group, which I will leave unnamed, who specialized in rare movies. I was only active for about 8 months…releasing perhaps 15 titles before I got bored with it. It really wasn’t much of a liability, especially in those days, and my specialty within the group was rare and extreme foreign horror which made it even less of a liability since much of it was imported material and would have legal under the Berne convention at that time. I ripped nothing mainstream and nothing made in North America. In fact any distribution, pirated or not, for most of these movies was better than what they had. Why do you think obsure Asian horror movies such as “Ringu” (The Ring) or “Ju On” (The Grudge) or “Kairo” (Pulse) and several others got so much interest and ultimately remade by Hollywood? It was because of the enormous amount of interest shown on the Internet and guys like me who helped keep such material alive. Now, on to security. Even in those days, when I finished preparing a rip, I would upload it to a central server using Secure FTP and later, SCP. Those releases would then have their timestamps modified to obscure when it was created, then they would sit there for a period of time to put some distance and time between the ripper and give logs time to flush. The releases were then released from the group server to different group who then handled the release of materials to the Internet. There were no direct lines between the rippers and the group doing the releasing. I can guarantee things are vastly more secure than this today. Trust me, as an ex-pirate familiar with the process, this legislation will do NO good to prevent piracy. Pirates, the technology and distribution methods will evolve way faster than lawmakers will be able to keep up. I don’t try to justify what I did, other than saying it was a much more acceptable practice back then. These days, I’m a good consumer and buy all my movies and music and only download some TV shows which I really consider no different than recording them since I’ve paid my satelite bill and bought my PVR. Even the TV shows…most of it never gets watched ending up being placeholders as a reminder that I wanted to see it until I eventually buy it on DVD.

    The industry can sue as many people as they want, but most of the “pirates” they will catch are just kids that eventually get “real” jobs and grow up to be good consumers. And really, they’ll never catch the ones actually putting the stuff up on the Internet. Suing people only hurts their sales, plain and simple.