“. provide for adequate and effective remedies against any person who knowingly takes any of the following acts, knowing or knowing, with respect to civil remedies, that he will cause, permit, facilitate or conceal a violation of any right covered by this Treaty or the Berne Convention: protection of minors. That provision gives a court faced with alleged access to a protected work which infringes the anti-circumvention rule or the alleged trade in equipment intended to facilitate the circumvention of access controls a margin of discretion in the application of those rules. When applying the prohibitions to a component or party, the court must consider the need to incorporate them into a technology, product, service or device that does not itself violate the DMCA and that is intended solely to prevent minors from accessing material on the Internet. This is obviously a narrow exception, and the discretion to testify in court leaves a great deal of unpredictability as to how it is applied. Similarly, in Chamberlain Group, Inc. v. Skylink Technologies, Inc. 381 F.3d 1178 (Fed. Cir. 2004), the Tribunal held that the distribution of a bypass device (in this case a garage door opener) did not violate the anti-circumvention provisions because its use did not result in copyright infringement.
Section 103(c)(1) of the DMCA (17 U.S.C. Sec. 1201(c)(1)) states that [t]he other provisions of this Section do not affect any right, remedy, limitation, or defense against copyright infringement, including fair use, under this Title. However, a violation of the DMCA`s anti-circumvention provisions is not in itself a copyright infringement and it is therefore unclear whether fair dealing can be used as a defense in cases of circumvention. Remedies in a civil lawsuit for a person who has been violated by another violation of the DMCA`s anti-circumvention, anti-trafficking, or CMI rules are far-reaching. The injured party may receive an arbitration award in federal court on its actual damages resulting from the breach as well as on the infringer`s profits, which are not otherwise measured in damages. Alternatively, legal compensation may be chosen, making proof of actual damage superfluous. For violations of anti-circumvention and anti-trafficking rules, statutory damages are $200 to $2,500 per violation, and for violations of IJC rules, statutory damages are $2,500 to $25,000 per violation.
In the case of repeated infringements within three years of a final judgment for previous infringements, compensation for damages may be tripled. The court may, in its sole discretion, award costs and fees to the prevailing party. The DMCA`s anti-circumvention, anti-trafficking, and CMI rules were designed by Congress to strengthen copyright protection by regulating behavior that has traditionally been outside of copyright law, and DMCA infringement is not a copyright violation. These are separate and different crimes, although both may be involved in the same case. For example, a consumer who buys a Movie DVD protected by the Content Scramble system and then creates a device that decrypts the movie for viewing on a computer violated the DMCA`s prohibition on circumventing the DVD`s access controls, but did not infringe copyright. A violation of copyright law occurs when the consumer goes further and infringes copyright by making and distributing copies of the film. The Indian Copyright Act has not been amended to implement the anti-circumvention provisions of the WCT and WPPT. Therefore, there are no regulations prohibiting the circumvention of digital rights management systems in India.
So, if there is a “technological measure that effectively controls access to a factory,” it is illegal to circumvent that measure. However, section 1201 creates several exceptions to this rule, and the Library of Congress has the power to create additional exceptions. In a high-profile dispute, Professor Edward Felten and his co-authors were about to present a paper at a conference in April 2001 that revealed gaps in the control systems of the digital music recording industry. Shortly before the conference, they were contacted by the Recording Industry Association of America (“RIAA”) and threatened with legal action for violating the DMCA if they published the results of their research. The RIAA claimed that the document provided unnecessarily detailed information, particularly in terms of detailed digital measurements such as frequencies and numerical parameters, that would help those who wanted to circumvent the RIAA`s control over their published music. The researchers then withdrew their work from the conference. The RIAA then withdrew its threat, and the researchers later published the paper. The researchers then filed a lawsuit to remove the DMCA and declare that future versions of their research would not violate the DMCA. In November 2001, the U.S.
District Court in New Jersey dismissed the case as non-controversial due to the withdrawal of threats of prosecution. In February 2002, Professor Felten and the other complainants announced that they would not appeal the case. The Electronic Frontier Foundation (EFF) has criticized the DMCA`s anti-circumvention clauses, saying they “chill free speech and scientific research,” jeopardize fair dealing, impede competition and innovation, and disrupt computer penetration laws. [6] In the event that a dispute over the agreement is brought before the courts, the losing party must bear the legal costs incurred. Special categories of works. The DMCA establishes a number of exceptions to its anti-circumvention and anti-trafficking rules. The first is an exception to the basic rule prohibiting the circumvention of access controls for users of certain categories of works. For each consecutive three-year period beginning October 28, 2000, the Librarian of Congress will determine, as part of a rule-making process, which categories of works have users who would be affected by the prohibition on circumventing access controls in their ability not to use the infringing work. The Librarian of Congress made his decision for the first three-year period and concluded that at least until the age of 28.
In October 2003, two categories of works will be exempted: (a) compilations consisting of lists of websites blocked by filtering software applications, and (b) literary works, including computer programs and databases, protected by access control mechanisms that do not allow access due to malfunctions, corruption or obsolescence. This exception does not apply to rules against circumvention of access controls, so this exception, although theoretically available, will not be useful in most cases due to the lack of tools to perform the bypass. “. provide adequate legal protection and effective remedies against circumvention of effective technological measures applied by authors in the exercise of their rights under this Treaty or the Berne Convention and restrictive acts concerning their works that are not authorised or authorised by law by the authors concerned. The DMCA is the most significant change in the United States.
No comment Click here to read/write comments
