DMCA Anti-Circumvention Provisions in a Different Light: Perspectives from Transnational Observation of Five Jurisdictions

Abstract

In order to cope with the challenge posed by high-quality digital copying of copyrightable works, the World Intellectual Property Organization (WIPO) and a number of its members have determined to incorporate anticircumvention provisions in 1996 WIPO Copyright Treaty (WCT) and their domestic copyright laws. Even though these countries adopted this brand new regulation close in time, they approached the same problem in quite different manners, especially divergent with regard to public domain and fair use privileges. Since the two limitations on copyright play a key role in preserving free dissemination of information and preventing authors from over-asserting their exclusive rights, the viability of public domain and fair use was pivotal to the legitimacy of the new regulation and thus merits careful exmination.

This paper compares anti-circumvention regulations in five jurisdictions: WIPO, U.S., E.U., Japan and Australia, analyzing and contrasting their respective approaches in this field, and further evaluating their individual impact on public domain and fair use. Except for the highly protective approach adopted by the U.S., the other four jurisdictions endeavor to craft some machinery to sustain the two important constraints on copyrights. These jurisdictions either sought to restrain the scope of anticirvumvention protection, or allowed for certain fair use privileges excused from the anticircumvention right. In view of the significance of public domain and fair use for information exchange and sequent innovation, it would be advisable for the U.S. to reconsider its anticircumvention provisions in reference to regulations adopted by other WIPO members, and to reflect its attitude pressuring trade partners to model after DMCA anticircumvention.

Keywords: anticircumvention, technological protection measure, fair use, public domain, digital copyright, international copyright law