eptions for educational purposes from the current legislation. The South African Government also failed to address the needs of the disabled, the distance learner and the illiterate as well as the issue of digital technology. The educational sector objected strongly and succeeded in having the proposed amendments withdrawn.
Despite the attempts in a few jurisdictions to maintain the balance, it is increasingly apparent to IFLA that the traditional copyright balance is under serious threat in the digital environment from a variety of sources. Recent expanded use of technological protection measures (and the laws that protect them) and the emerging licensing environment are converging to shift the use of copyright materials to a pay per view environment, which limits access to those who can pay.
Use of Technological Copyright Protection Measures
The U.S. DMCA was the world’s first effort to implement the WIPO Treaties when it was enacted in 1998. Because of this, and because of the size and technological
advancement of the U.S., it is an excellent barometer of trends with respect to digital copyright. Technological copyright protection measures are a significant issue for the world’s library and education communities, because they can override and effectively eliminate any copyright exceptions. This is because such technological measures do not distinguish between uses which are not authorised by the copyright owner but are permitted by law, on the one hand, and those uses which are not authorised by the owner and also infringing. For example, the same copy-control mechanism, which prevents a person from making infringing copies of a copyright work, may also prevent a student or a visually impaired person from making legitimate fair use/fair dealing copies.
Several recent U.S cases have tested the new approach as follows:
- Universal v. Reimerdes: in this case, a software device, DeCSS, enabled DVDs to be decrypted so that they (i) could be played on non-Windows PCs and (ii) copied. The Court banned even linking to this software application on the grounds that such a device would lead to piracy (even though no evidence was tendered of actual use of DeCSS in the service of DVD piracy). The Court dismissed the fact that there might be legitimate fair use reasons for copying all or part of a DVD film. The Court took this position even though an earlier Supreme Court decision, before the DMCA, – Sony v. Universal Studios, had held that a device could not be found in violation of the Copyright Act if it had substantial other non-infringing uses. Thus, simply because VCRs, CD-Burners and photocopiers can be used for infringing purposes does not mean they have been outlawed.
- Felten v RIAA: in this case, Professor Edward Felten of Princeton University, was threatened with a lawsuit by the Recording Industry under the DMCA if he revealed his findings of security flaws within the Secure Digital Music Initiative (SDMI) at an IT security conference. He later sued the RIAA for a declaratory judgement to clarify his rights to freedom of expression. The RIAA retracted its specific legal threat so Felton’s case became moot, but the shadow hanging over freedom of scientific expression remained.
- In U.S. v. Sklyarov, Dmitri Sklyarov, a Russian computer programmer was arrested and threatened with criminal prosecution for making the ‘Advanced e-book Processor’ (AEBP). (He was later released but the company he works for is still facing charges.) The AEBP is a tool, which translates e-books from Adobe’s e-Book format to Adobe’s Portable Document Format (PDF). This translation process removes the various restrictions (against copying, printing, text-to-speech processing, etc.) that publishers can impose on e-Books. The program is designed to work only with e-Books that have been lawfully purchased from sales outlets. The Advanced e-Book Processor allows those who have legitimately purchased e-Books to make fair uses of their e-Books, which would otherwise not be possible with the current Adobe e-Book format, such as printing an e-Book on pape