protection has expired or those in the public domain for other reasons (such as ineligibility for protection). However, devices whose primary purpose and effect is to defeat the protection for such works would not violate the provision. The proposed provision exempts all devices, products and services primarily intended and used for legal purposes, which would include the reproduction and distribution of copies of works in the public domain. Further, a protection system on copies of works in the public domain would not qualify with respect to such copies as a system which "prevents or inhibits the violation of of the exclusive rights of the copyright owner under Section 106." Works in the public domain are not protected by copyright, and thus have no copyright owner or exclusive rights applicable to them. Finally, while technological protection may be applied to copies of works in the public domain, such protection attaches only to those particular copies -- not to the underlying work itself. 567 any It has also been suggested that the provision places an unwarranted burden on manufacturers. The proposed amendment would impose no requirement on manufacturers to accommodate any protection systems, such as those required in Chapter 10 of manufacturers of digital audio recording devices. 568 The provision would only prohibit the manufacture of circumvention devices. 567 Copies of the work in the marketplace free from copyright protection could be freely reproduced (and, in fact, the lower distribution costs of the NII may encourage increased availability of public domain works). Further, technological protection that restricts the ability to reproduce the work by technical means does not prevent reproduction by other means (such as quoting, manually copying, etc.). 568 However, the Working Group does encourage the equipment manufacturing and copyright industries to work together on bilateral solutions for other types of recording devices and categories of works. In response to a request from Congressional leaders, representatives of the motion picture industry and the consumer electronics industry are presently drafting a joint legislative proposal addressing legal and technical measures pertaining to consumer recording of motion pictures. This proposal would set forth a technical means to be applied that would respect the legitimate commercial Neither does the proposed amendment require copyright owners to use technological protection, or, if they do, to employ any particular type. Copyright owners should be free to determine what level or type of protection (if any) is appropriate for their works, taking into consideration cost and security needs, and different consumer and market preferences. Moreover, there is no evidence that one technological protection system could -or should -- take care of all types of works. Legislation of this type is not unprecedented. The Copyright Act already protects sound recordings and musical works by prohibiting the circumvention of any program or circuit that implements a serial copy management system or similar system included in digital audio recording devices and digital audio interface devices. Section 1002 provides: No person shall import, manufacture, or expectations of copyright owners and the reasonable and customary copying practices of consumers. 569 Some have suggested that while manufacturers will surely know the primary purpose of the devices they produce, they may inadvertently find themselves liable for devices which they intended for legal purposes, but which have the incidental effect of circumventing copyright protection systems. For a manufacturer to find himself in this situation, the device would have to fail to be used primarily for the purpose for which it was sold, and be primarily used, to the surprise of its manufacturer, for defeating protection systems. It is likely that such a situation would occur rarely, if ever. (It would be self-defeating for copyright owners to begin using a protection system that an existing device could defeat.) However, the chapter contains an "innocent violation" provision for just such a case. A court would have the ability to reduce or eliminate altogether any damages for which the manufacturer would otherwise be liable, to avoid an unfair result but still protect the copyright owner. The Communications Act includes a similar provision: Any person who manufactures, assembles, Precedent for this type of legislation is also found in the international arena. The NAFTA requires each party to make it a criminal offense to "manufacture, import, sell, lease or otherwise make available a device or system that is primarily of assistance in decoding an encrypted programcarrying satellite signal without the authorization of the lawful distributor of such signal. In 1988, the United Kingdom enacted legislation prohibiting the manufacture, distribution or sale of a device designed or adapted to circumvent copy-protection systems. "572 573 571 572 47 U.S.C. § 605(e)(4) (1988). See NAFTA, supra note 446, at art. 1707(a). The NAFTA also requires parties to make it a civil offense to "receive, in connection with commercial activities, or further distribute, an encrypted program-carrying satellite signal that has been decoded without the authorization of the lawful distributor of the signal or to engage in any activity prohibited under [the criminal provisions]." See NAFTA, supra note 446, at art. 1707(b). 573 See Copyright, Designs and Patents Act of 1988, Part VII, § 296. 7. COPYRIGHT MANAGEMENT INFORMATION In the future, the copyright management information associated with a work -- such as the name of the copyright owner and the terms and conditions for uses of the work -may be critical to the efficient operation and success of the NII. Copyright management information will serve as a kind of license plate for a work on the information superhighway, from which a user may obtain important information about the work. The accuracy of such information will be crucial to the ability of consumers to find and make authorized uses of copyrighted works on the NII. Reliable information will also facilitate efficient licensing and reduce transaction costs for licensable uses of copyrighted works (both fee-based and royalty-free). The public should be protected from false information about who created the work, who owns rights in it, and what uses may be authorized by the copyright owner. Therefore, the Working Group recommends that the Copyright Act be amended to prohibit the provision, distribution or importation for distribution of copyright management information known to be false and the unauthorized removal or alteration of copyright management information. Under the proposed amendment, copyright management information is defined as the name and other identifying information of the author of a work, the name and other identifying information of the copyright owner, terms and conditions for uses of the work, and such other information as the Register of Copyrights may prescribe by regulation to provide adequate flexibility in the future.574 While the proposed amendment does not require copyright owners to provide copyright management 574 Other information that may become important to the efficient operation of the NII includes the country of origin of the work, the year of creation or first publication, a description of the work, the name and other identifying information of licensees and standardized codes. information, it does require that when such information is included, it be accurate. However, the Working Group encourages copyright owners to include the information to enable consumers to more easily find and make authorized uses of copyrighted works. Nor does it specify standardized formats or content, although private sector initiatives in this area are underway and are also encouraged by the Working Group. Finally, it does not require transmitting entities to include the copyright information as part of their transmission of a work where such information has been included in the work.575 However, such a proposal deserves further consideration. The proposal prohibits the falsification, alteration or removal of any copyright management information not just that which is included in or digitally linked to the copyrighted work. Many users will obtain such information from public registers, where the integrity of such information will be no less important. The proposal also contains a knowledge requirement; therefore, inadvertent falsification, alteration or removal would not be a violation. 576 B. PATENT The present law governing the eligibility of inventions for patent protection and the enforcement of patent rights appears adequate to address the needs of inventors and the public with regard to technology used on the NII. The NII will increase the accessibility and content of the body of prior art, which in turn will affect patentability determinations. The law governing information that properly is considered part of the prior art appears to be 575 While a transmitting entity may not remove the copyright management information, if such information is not included in the normal course of the transmission (such as when a work in digital form is broadcast through analog transmission), no violation would occur. 576 For criminal liability, both knowledge and the intent to defraud are required. |