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The level of integration of IP issues in the innovation system of Jamaica .. “We already possess the basic legal framework for protection of intellectual property.
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In addition, as scientific knowledge has expanded and allowed new industries to arise in fields such as biotechnology and nanotechnology, originators of technology have sought IP protection for the new technologies. Patents have been granted for living organisms,  and in the United States, certain living organisms have been patentable for over a century. The increase in terms of protection is particularly seen in relation to copyright, which has recently been the subject of serial extensions in the United States and in Europe.
Also with respect to copyright, the American film industry helped to change the social construct of intellectual property via its trade organization, the Motion Picture Association of America. In amicus briefs in important cases, in lobbying before Congress, and in its statements to the public, the MPAA has advocated strong protection of intellectual-property rights. In framing its presentations, the association has claimed that people are entitled to the property that is produced by their labor.
Additionally Congress's awareness of the position of the United States as the world's largest producer of films has made it convenient to expand the conception of intellectual property. The growth of the Internet , and particularly distributed search engines like Kazaa and Gnutella , have represented a challenge for copyright policy.
The Recording Industry Association of America , in particular, has been on the front lines of the fight against copyright infringement , which the industry calls "piracy". The industry has had victories against some services, including a highly publicized case against the file-sharing company Napster , and some people have been prosecuted for sharing files in violation of copyright. The electronic age has seen an increase in the attempt to use software-based digital rights management tools to restrict the copying and use of digitally based works.
Laws such as the Digital Millennium Copyright Act have been enacted that use criminal law to prevent any circumvention of software used to enforce digital rights management systems. Equivalent provisions, to prevent circumvention of copyright protection have existed in EU for some time, and are being expanded in, for example, Article 6 and 7 the Copyright Directive.
This can hinder legal uses, affecting public domain works, limitations and exceptions to copyright , or uses allowed by the copyright holder. In the context of trademarks, this expansion has been driven by international efforts to harmonise the definition of "trademark", as exemplified by the Agreement on Trade-Related Aspects of Intellectual Property Rights ratified in , which formalized regulations for IP rights that had been handled by common law, or not at all, in member states.
Pursuant to TRIPs, any sign which is "capable of distinguishing" the products or services of one business from the products or services of another business is capable of constituting a trademark. Intellectual property has become a core tool in corporate tax planning and tax avoidance. In , both the U. The departure of the U. From Wikipedia, the free encyclopedia. This article is about the legal concept. For the film, see Intellectual Property film.
Authors' rights Database right Indigenous intellectual property Industrial design right Integrated circuit layout design protection Moral rights Plant breeders' rights Related rights Supplementary protection certificate Utility model. History of copyright law and History of patent law. Criticism of patents and Opposition to copyright.
That comes from schemes that facilitate profit shifting. A Future for the Past, 15 J. The making of modern intellectual property law: Oxford English Dictionary 3rd ed. Subscription or UK public library membership required. Citing Monthly Review , vol. Archived from the original on See also "The first patent law was enacted in Sybaris, a city in the South of Italy, before the Roman domination; … The law was mentioned by Atheneus, an ancient writer The agency of academics, Review of International Political Economy, vol , , p.
Policy, Law and Use. Intellectual Property and Information Wealth: Copyright and related rights]. Archived from the original PDF on Check date values in: Intellectual Property in the New Technological Age 4th rev. Retrieved 26 June Against intellectual monopoly PDF. The Atlantic Monthly Group. Retrieved 18 April The Intellectual Property Office. Retrieved October 25, Archived from the original on October 22, Stanford Encyclopedia of Philosophy.
Brenkert and Tom L. Oxford University Press, n. The Unknown Ideal paperback 2nd ed. Sahu and Shannon Mrksich, Ph. Cutler International Patent Litigation Survey: Archived from the original on 13 August Retrieved 17 August It's a Seductive Mirage". Free Software Foundation, Inc. Cambridge University Press, Archived from the original on 2 March Retrieved 21 October Archived from the original on 5 September Archived from the original on 4 June Balancing the need to protect the intellectual property rights IPRs which the third author considers are more accurately described as intellectual monopoly privileges IMPs of pharmaceutical companies, with the need to ensure access to essential medicines in developing countries is one of the most pressing challenges facing international policy makers today.
Archived at the Wayback Machine. Balancing the need to protect the intellectual property rights IPRs ". Ravicher August 6, Joseph Stiglitz — Making Globalization Work". Evidence from Economic History. Journal of Development Economics. Who Owns the Knowledge Economy? Geneva, November 12—30, Journal of International Economic Law.
Retrieved February 9, Stephan Kinsella, Against Intellectual property , p. Protecting the public domain. Copyright Term Extension Act , Pub. A Great Idea Lives Forever. The New York Times , May 20, Monday, October 22, PP —; see p first column for international efforts and 3rd column for description of the problem. Seamus Coffey, University College Cork. Council on Foreign Relations. Is the Biggest Tax Battle in History". Retrieved 14 November Some areas are not covered by these agreements. In some cases, the standards of protection prescribed were thought inadequate.
During the Uruguay Round negotiations, members considered that the standards for copyright protection in the Berne Convention for the Protection of Literary and Artistic Works were largely satisfactory. The TRIPS Agreement defines what types of signs must be eligible for protection as trademarks, and what the minimum rights conferred on their owners must be. It says that service marks must be protected in the same way as trademarks used for goods.
Marks that have become well-known in a particular country enjoy additional protection. Using the indication when the product was made elsewhere or when it does not have the usual characteristics can mislead consumers, and can lead to unfair competition. Some exceptions are allowed, for example if the term in question is already protected as a trademark or if it has become a generic term. The TRIPS Agreement provides for further negotiations in the WTO to establish a multilateral system of notification and registration of geographical indications for wines, which was subsequently extended to include spirits.
The question of whether to negotiate extending this higher level of protection beyond wines and spirits is also being discussed in the WTO. Owners of protected designs must be able to prevent the manufacture, sale or importation of articles bearing or embodying a design which is a copy or substantially a copy of the protected design for commercial purposes. The TRIPS Agreement says patent protection must be available for eligible inventions in all fields of technology that are new, involve an inventive step and can be industrially applied.
Eligible inventions includee both products and processes.
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They must be protected for at least 20 years. However, governments can refuse to issue a patent for an invention if its sale needs to be prohibited for reasons of public order or morality. They can also exclude diagnostic, therapeutic and surgical methods, plants and animals other than micro-organisms , and biological processes for their production other than microbiological processes from patent protection. The TRIPS Agreement describes the minimum rights that a patent owner must enjoy, and defines the conditions under which exceptions to these rights are permitted.
But this can only be done under specific conditions set out in the TRIPS Agreement aimed at safeguarding the interests of the patent-holder. If a patent is issued for a process invention, then the rights must extend to the product directly obtained from the process. Under certain conditions alleged infringers may be ordered by a court to prove that they have not used the patented process.
Compulsory licences for export of medicines. Undisclosed information includes trade secrets and test data.
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Trade secrets must be protected against unauthorized use, including through breach of contract or confidence or other acts contrary to honest commercial practices. Test data submitted to governments in order to obtain marketing approval for new pharmaceutical or agricultural chemicals must also be protected against unfair commercial use and disclosure.
Extended transition periods continue to apply to least developed country members see section below on transitional arrangements. One way for a right holder to commercially exploit his or her intellectual property rights includes issuing a licence to someone else to use the rights. Recognizing the possibility that right holders might include conditions that are anti-competitive, the TRIPS Agreement says that under certain conditions, governments have the right to take action to prevent anti-competitive licensing practices.
It also says governments must be prepared to consult each other on controlling anti-competitive licensing practices. The user is presumed to be motivated e.
A larger problem arises when information is made accessible to an unbounded community, as it is routinely on the Web. The user cannot in general be presumed to obey rules of use e. A variety of approaches has been explored. The simpler measures include techniques for posting documents that are easily viewed but not easily captured when using existing browsers.
This gives a degree of control over content use because the display can be done without making available the standard operating system copy-and-paste or printing options. A slightly more sophisticated technique is to use a special format for the information and distribute a browser plug-in that can view the information but isn't capable of writing it to the disk, printing, and so on. Knowledgeable users can often find ways around these techniques, but ordinary users may well be deterred from using the content in ways the rights holder wishes to discourage.
When it is attached to something physical, as in, say, books or paintings, the effort and expense of reproducing the physical object offers a barrier to reproduction. Much of our history of and comfort with intellectual property restrictions is based on the familiar properties of information bound to physical substrates.
Not surprisingly, then, some technical protection mechanisms seek to restore these properties by somehow "reattaching" the bits to something physical, something not easily reproduced. The description that follows draws on features of several such mechanisms as a way of characterizing this overall approach.
Encryption is a fundamental tool in this task. At a minimum, encryption requires that the consumer get a decryption key, without which a copy of the encrypted content is useless. Buy a digital song, for example, and you get both an encrypted file and a password for decrypting and playing the song. Two additional problems immediately become apparent. First, the content is still not "attached" to anything physical, so the consumer who wished to do so could pass along or sell to others both the encrypted content and the decryption key. Second, the consumer could use the key to decrypt the content, save the decrypted version in a file, and pass that file along to others.
There are several ways to deal with the first problem that involve "anchoring" the content to a single machine or single user. One technique is to encode the identity of the purchaser in the decryption key, making it possible to trace shared keys back to their source. This provides a social disincentive to redistribution.
A third technique calls for special hardware in the computer to hold a unique identifier that can be used as part of the decryption key. Some approaches call for this hardware to be encased in tamper-resistant cases, to discourage tampering even by those with the skill to modify hardware. One form of tamper resistance involves erasing the key if any attempt is made to open or manipulate the chip containing it. But even this protection alone is not sufficient, because it is not persistent. The consumer may legally purchase content and legally decrypt it on her machine, then perhaps illegally pass that on to others who may be able to use the information on their machines.
The final technological step is to reduce the opportunities for this to happen. Two basic elements are required: Decrypting just in time and on site means that the content is not decrypted until just before it is used, no temporary copies are ever stored, and the information is decrypted as physically close to the usage site as possible. An encrypted file containing a music album, for instance, would not be entirely decrypted and then played, because a sophisticated pro-. However, because even hard disks are replaced from time to time, this and all other such attempts to key to the specific hardware will fail in some situations.
The idea of course is to select attributes stable enough that this failure rarely occurs. Instead, the file is decrypted "on the fly" i. On-site decryption involves placing the decryption hardware and the sound-generation hardware as physically close as possible, minimizing the opportunity to capture the decrypted content as it passes from one place to another inside or outside the computer. Some playback devices are difficult to place physically near the computer's decryption hardware.
For example, digital camcorders, digital VCRs, digital video disk DVD movie players, and so on all require cables to connect them to the computer, which means wires for interconnection, and wires offer the possibility for wiretapping the signal. One approach to maintaining on-site decryption for peripheral devices is illustrated by the Digital Transmission Content Protection DTCP standard, an evolving standard developed through a collaboration of Hitachi, Intel, Matsushita, Sony, and Toshiba see Box 5.
The computer and the peripheral need to communicate to establish that each is a device authorized to receive a decryption key. The key is then exchanged in a form that makes it difficult to intercept, and the content is transmitted over the wire in encrypted form. The peripheral device then does its own on-site decryption. This allows the computer and peripheral to share content yet provides a strong degree of protection while the information is in transit to the decryption site.
But even given just-in-time and on-site decryption, a sophisticated programmer might be able to insert instructions that wrote each decrypted unit of content e. There are a number of different ways to attempt this, depending partially on the degree to which the content delivery system is intended to work on existing hardware and software. The largest current market is of course for PCs running off-the-shelf operating systems such as Windows, Mac, and Linux.
The difficulty here is that these routines were not designed to hide the information they are processing. As a result, using an existing operating system opens another door to capturing the decrypted content. Rights holders need a way to specify how their content can be used. Compliant copy control devices must be able to extract from the copyrighted material and act in accordance with the contained instruction.
Note that view of time-shifted content using a digital recorder is not possible material marked as "no copies permitted," The one-copy state has been specifically created to allow digital recorder time shifting. Before sharing valuable information, a connected device must first verify that another connected device is authentic. This layer defines the set of protocols used to ensure the identity, authenticity and compliance of affected devices prior to the transfer of any protected material.
Encryption is necessary because data placed on the wire is often simultaneously to all connected devices, not just the one device for which it is intended. Encrypting the data with keys known only to the sending and receiving devices protects the data while it is in transit. System renewability ensures long-term integrity of the system through the revocation of compromised devices. Content delivery systems that wish to work in the environment of such operating systems attempt, through clever programming, to reduce the opportunities to capture the decrypted information while the operating system is performing output.
But given existing operating systems, abundant opportunities still exist for a sophisticated programmer. Such computers would instead use specially written routines that will not read or write without checking with the decryption hardware on the computer to ensure that the operation is permitted under the conditions of use of the content. This more ambitious approach faces the substantial problem of requiring not only the development of a new and complex operating system but the widespread replacement of the existing installed base as well. This clearly raises the real possibility of rejection by consumers.
The final problem is the ultimate delivery of the information: Music must be played, text and images displayed, and so on. This presents one final, unavoidable opportunity for the user to capture the information. The sophisticated owner of a general-purpose computer can find ways to copy what appears on the screen e. As is usual in such matters, the expectation is that this will be tedious enough capturing a long document screenful by screenful , complex enough hooking up the converter , or of sufficiently low quality the captured speaker signal is not identical to the digital original that all but the most dedicated of thieves will see it as not worth the effort.
Nevertheless, those who place substantial faith in elaborate TPSs should keep in mind the necessity of presenting information to the user and the opportunity this provides for capture. More generally, because all protection mechanisms can eventually be defeated at the source e. A good mechanism is one that provides the degree of disincentive desired to discourage theft but remains inexpensive enough so that it doesn't greatly reduce consumer demand for the product. A good deal more real-world experience is needed before both vendors and consumers can identify the appropriate trade-offs.
Systems using one or more of these ideas are commercially available, and others are under active development. InterTrust, IBM, and Xerox are marketing wide-ranging sets of software products aimed at providing persistent protection for many kinds of content. When a valuable digital object is not encrypted and is outside the sphere of control of its rights holder, the only technical means of hinder-.
In its simplest format, a digital label could take the form of a logo, trademark, or warning label e. Labels are intended to be immediately visible and are a low-tech solution in that they are generally easily removed or changed, offering no enforcement of usage terms. Labels could, nevertheless, ease the problem of IP management, at least among the fairly large audience of cooperative users. Consider the utility of having every Web page carry a notice in the bottom right corner that spelled out the author's position on use of the page.
On this page:
Viewers would at least know what they could do with the page, without having to guess or track down the author, allowing cooperative users to behave appropriately. Getting this to work would require spreading the practice of adding such information, so that authors did it routinely, and some modest effort to develop standards addressing the kinds of things that would be useful to say in the label.
There is an existing range of standard legal phrases. A second category of label attached to some digital documents is a time stamp, used to establish that a work had certain properties e. The need for this arises from the malleability of digital information. It is simple to modify both the body of a document and the dates associated with it that are maintained by the operating system e. Digital time stamping is a technique that affixes an authoritative, cryptographically strong time stamp to digital content; the label can be used to demonstrate what the state of the content was at a given time.
A third-party time-stamping service may be involved to provide a trusted source for the time used in the time stamp. Time-stamping technology is not currently widely deployed. Where the labels noted above are separate from the digital content, another form of marking embeds the information into the content itself. Such digital alterations are called watermarks and are analogous to watermarks manufactured into paper. An example cited earlier described how a music file might be watermarked by using a few bits of some music samples to encode ownership information and enforce usage restrictions.
The digital watermark may be there in a form readily apparent, much like a copyright notice on the margin of a photograph; it may be embedded throughout the document, in the manner of documents printed on watermarked paper, or it may be embedded so that it is normally undetected and can be extracted only if you know how and where to look, as in the music example. The objectives, means, and effectiveness of marking technologies depend on a number of factors.
Designing an appropriate watermark means, for instance, asking what mix is desired of visibility Should the mark be routinely visible? The nature and value of the information clearly matters. A recent hit song needs different treatment than a Mozart aria. Sheet music is watermarked differently than an audio recording of a performance.
Some things are difficult to watermark. Machine code for software cannot be watermarked in the same way as music, because every bit in the program matters; change one and the program may crash. Identifying information must instead be built into the source code, embedded in a way that the information gets carried into the machine code but does not adversely affect the behavior of the program. How can, say, an online version of The Grapes of Wrath be marked to include a digital watermark, without changing the text?
One trick is to change the appearance of the text. The watermark can be encoded by varying the interline and intercharacter spacing slightly from what would be expected; the variation encodes the information. One of the oldest and simplest techniques is the mapmaker's trick of inserting nonexistent streets or roads. Similarly, text has been "marked" by distributing versions with small changes in wording. A number of efforts have been made in this direction, many of which rely on "Web crawlers," programs that methodically search the Web looking for documents bearing a relevant watermark.
An IP management system that watermarked images, for example, would also have a Web searching routine that examined publicly available image files for that system's watermarks. This is an active area of work; systems have been developed in both the commercial and academic world. Marking and monitoring technologies do not attempt to control users' behavior directly. In particular, they do not attempt to prevent unauthorized copy and modifications. Rather, they attempt to make these actions detectable so that rights holders can seek legal redress when infringements have been detected.
Frequently their intent is simply to indicate that copying is prohibited; the utility of these technologies relies on the fact that many people are honest most of the time. The preceding discussion of technical protection mechanisms points out that the strongest intellectual property protection requires embedding protection mechanisms throughout the computer hardware and software at all levels, right down to the BIOS. In one vision of the future, security will become a major influence on the design of computing and communications infrastructure, leading to the development and widespread adoption of hardware-based, technologically comprehensive, end-to-end systems that offer information security, and hence facilitate creation and control of digital IP.
There has been some research and a great deal of speculation and controversy about these so-called "trusted systems," but none is in widespread use as of One example of this vision Stefik, b seeks to enable the world of digital objects to have some of the same properties as physical objects. In these systems, when a merchant sells a digital object, the bits encoding that object would be deposited on the buyer's computer and erased from the merchant's computer.
If the purchaser subsequently "loaned" this digital object, the access control and rights management systems on the lender's computer would temporarily disable the object's use on that computer while enabling use on the borrower's computer. The published literature see, e. Stefik, for example, is clear on the need for some sort of hardware component Stefik, b to supplement the Internet and PC world of today, 19 but he says little about how that component would work or how it would be added to today's infrastructure.
Here, we explore two general ways in which trusted systems might be implemented, then consider the barriers they face. One way to increase control over content is to deliver it into special-purpose devices designed for purchase and consumption of digital content, but not programmable in the manner of general-purpose PCs.
For example, game-playing machines, digital music players, electronic books, and many other types of devices could be and some are built so that each one, when purchased, contains a unique identifier and appropriate decoding software. The devices could then be connected to the Web in much the same way as general-purpose computers and download content encrypted by distributors.
Legitimate devices would be able to 1 verify that the content came from an authorized distributor, 2 decrypt and display the content the meaning of "display" depending on whether the content is text, video, audio, and so on , and 3 force the device owner to pay for the content perhaps by checking before decrypting that the subscription fee payment is up-to-date. It is expensive to design, manufacture, and mass market such a special-purpose device, and an entire content-distribution business based on such a device would necessitate cooperation of at least the consumer-electronics and content-distribution industries, and possibly the banking and Internet-service industries as well.
A particular business plan could thus be infeasible because it failed to motivate all of the necessary parties to cooperate or because consumers failed to buy the special-purpose devices in sufficient numbers. The failure of the Divx player for distribution of movies is perhaps an instructive example in this regard. Hardware-based support for IP management in trusted systems could also be done using PCs containing special-purpose hardware. Because such machines would have the full functionality of PCs, users could con-. Although it was not designed to download content from the Web, it was in many other respects the sort of device suggested above.
The intent would be that because they had secure hardware, content distributors and their customers could conduct business just as they could in the information-appliance scenario, but without customers having to buy a separate special-purpose device.
One problem here, suggested above, is that the content must, eventually, be presented to the user, at which point it can be captured. The capturing may be a slow and perhaps painful process, but, if the content in question is of sufficient value, pirates may well be motivated to go to the effort or to write software that will automate the effort.
The trusted systems scenario faces substantial challenges, in part because accomplishing it would require changes to the vast installed base of personal computers, changes that the marketplace may reject. The need for specialized hardware would require buying new machines or retrofitting existing computers with hardware ensuring that the computer user was able to do with the digital object exactly those actions specified by the rights management language. The tight control of input and output, for example, if universally enforced, would be experienced by the user as an inability to do print redirection, the ability that permits the personal computer user to save into a local file anything he or she can see on the screen or print.
The committee finds it questionable whether computer owners would accept the inconvenience, risk, and expense of retrofitting their machines with a device that makes them more expensive and in some ways less capable. The case is less obvious where purchasing new machines is concerned, but even here there is a substantial question of what will motivate buyers to purchase a machine that is more expensive because of the new hardware and software and, once again, less capable in some ways.
Note, too, that although consumers might benefit from access to content that would not have been released without trusted systems in place, significant benefit from such systems would accrue to content originators, while the costs would be borne principally by content users. There are two plausible scenarios for the adoption of such an approach: The clean slate scenario involves the introduction of new technology, which avoids the problem of an installed base and offers opportunities to mandate standards. DVD offers one such example: The hardware and software for a player must use certain licensed technology and obey certain protection standards in order to be capable of playing movies.
Such requirements can be set in place at the outset of a new technology, before there is an installed base of equipment without these capabilities. The "side effect" scenario involves technology that is introduced for one reason and turns out to be useful for a second purpose. This is a very ambitious undertaking that will require a considerable, coordinated effort among several manufacturers, and its success is far from guaranteed. Nevertheless, should the alliance make substantial progress, it would offer a foundation for business-to-business e-commerce and would also mean that PCs would likely come equipped with hardware and software that provided a natural foundation for TPSs aimed at IP protection.
This report noted earlier that the marketplace for electronic information might benefit from the marketplace infrastructure built for electronic commerce; it may be the case that the computer hardware and software built for secure electronic commerce will turn out to be a useful foundation for IP protection on individual computers.
An alternative version of the trusted system notion envisions creating software-based IP management systems whose technical protection arises from a variety of software tools, including encryption, watermarking, and some of the technologies discussed above. Although this would not provide the same degree of protection as systems using both software and special hardware, it may very well offer sufficient strength to enable an effective marketplace in low- to medium-value digital information.
For a variety of nontechnical reasons discussed at length in Gladney , the integration phase of such systems is proceeding slowly, with end-to-end systems not nearly as well developed or well understood as the individual technical tools. As the discussion above makes clear, there are substantial challenges in creating technical protection services capable of working effectively in the context of a general-purpose computer.
However, with more specialized devices, or in contexts of limited uses of the computer, additional techniques may be employed. For example, for high value, specialized software with smaller, more narrowly defined markets, hardware-based copy protection schemes have had some success.
In the computer-aided design software market, for instance, products are distributed with "dongles," simple physical devices that plug into the printer port; the software does not function unless the dongle is installed. But dongles have been tried and have proven impractical for mass market software: Consumers rapidly became frustrated with the need to keep track of a separate dongle for each application and each of its upgrades.
For specific devices, like CD players, copy protection can be based on hardware built into the device. This hardware makes it difficult to use CD-ROM recorders to create unauthorized copies of disks with commercially valuable music, software, or other content. For example, Macrovision's SafeDisc technology uses digital signature, encryption, and hardware-based copy protection in a TPS that is transparent to the user of a legitimate disk.
The physical copy protection technology prevents CD-ROM readers and other professional mastering equipment from copying the digital signature. This in turn prevents unauthorized copying, because the content can be decrypted only when the digital signature can be read and verified. Digital video disks provide a second example of hardware-based copy protection for special-purpose devices, in this case for use by the entertainment industry see Box 5. Understanding the interaction of intellectual property and technical protection services requires an understanding of how technical protection methods and products are developed.
One key feature of the technology underlying TPSs is that its creation proceeds in an adversarial manner. Developed by studios and consumer electronics companies in late , digital video disks DVDs are used in the entertainment industry to distribute movies and other content. For example, a device getting information from a disk marked "one copy" must change the information on its version to indicate "no [more] copies. This inhibits copying DVDs to videotape.
The DVD technical protection system is useful for keeping hones people honest, but from a security point of view it has defects in its design that prevent it from being a major deterrent for skilled pirates. For example, the effectiveness of the CSS encryption scheme depends on the secrecy of the cryptographic algorithm, not just on the secrecy of the cryptographic key; this is a violation of a well-known cryptographic design principle. CSS has not been adopted elsewhere, partly due to this weakness. In November , the CSS encryption scheme was apparently broken, due in part to this very issue.
Two programmers examined the software used by one DVD player, whose manufacturer had neglected to encrypt its decryption key. Examining the software enabled them to break the scheme for that one specific player, which then provided them with a window into the encryption keys used by any of the other odd licensed players Patrizio, b. One member of the community of cryptography and security researchers proposes a protection mechanism, and others then attack the proposal, trying to find its vulnerabilities. It is important that this process go on at both the theoretical and experimental levels.
Proposals for new ideas are often first evaluated on paper, to see whether there are conceptual flaws. Even if no flaws are evident at this stage, the concept needs to be evaluated experimentally, because systems that have survived pencil-and-. This can happen either because flaws were simply not discovered in the theoretical analysis or because a sound proposal was implemented badly.
Fielded implementations, not abstract designs, are what customers will use; hence, real implementations must be tested in real use. A crucial part of the development of good technical protection mechanisms is thus the experimental circumvention, or attack, on hardware and software that are claimed to be secure. Before the device is relied on to protect valuable content, vigorous, expert attacks should be carried out, and they should be done under conditions that are as close as possible to those in which the secure hardware or software will be used.
This process is not merely good in theory; it is how good security technology and products are created, both by researchers and in commercial practice. Vendors, for example, assemble their own "tiger teams" that try to circumvent a security mechanism before it is released in the marketplace. The results of this practice validate its use. The history of the field is replete with good ideas that have been tested by the community, found to be flawed, improved, retested, and improved again.
The process continues and the technology constantly gets better. This in turn has policy significance: Regulating circumvention must be done very carefully lest we hobble the very process that enables the development of effective protection technology. If researchers, vendors, security consultants, and others are unsure about the legal status of their activities, their effectiveness may suffer, and the quality of the resulting products may decline.
Whether a TPS is successful begins with its inherent technical strength but depends ultimately on both the product it protects and the business in.
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When Sun launched this innovative system, one of the most important claims that it made was that server-supplied code could be run from any Java-enabled Web browser "safely. This process continues, as real use and experimentation uncover additional defects, leading to further repairs and improvements.
Congress included in the DMCA two kinds of anticircumvention regulations. One of the antidevices rules outlaws devices that circumvent access controls; the other outlaws devices that circumvent use or copying controls "access" concerns whether you can read the document, "use" focuses on what you do with it, for example, print or make a coy of it. These provisions are, on their own terms, plausible steps providing prophylactic measures aimed at protecting intellectual property.
The antidevice provisions are analogous to similar laws concerning cable television descramblers, working on the presumption that it is inappropriate to manufacture devices whose intended purpose is to enable to break the law. As Congress realized, however, problems emerge from the details. First, Congress recognized that circumvention can be done for entirely legitimate purposes, such as encryption research, computer security testing, and achieving interoperability for computer systems.
These exceptions may not, however, exhaust the full range of legitimate purposes for bypassing technical protection systems, as Appendix G explains. The DMCA as written is inconsistent and unclear as to whether circumvention is permitted to enable fair use, though legislative history suggests that Congress intended the preservation of fair use. Future revision of this law should fix this inconsistency. Second, Congress was apparently concerned about the potential for technical protection mechanisms to disrupt fair use and other noninfringing uses.
WTO | Understanding the WTO - Intellectual property: protection and enforcement
The concern is simple. If you can't get access to content, you clearly can't make fair use of it. As a result Congress tasked the Librarian of Congress with a kind of watchdog role. Whether persons who are users of a copyrighted work are, or are likely to be in the succeeding 3-year period, adversely affected by the prohibition under subparagraph A in their ability to make noninfringing uses under this title of as particular class of copyrighted works. In conducting such rulemaking, the Librarian shall examine:. If such an adverse effect is found, the Librarian can exempt certain classes of users of works form the access-control ban.
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Third, there is a significant ambiguity in the DMCA about whether there is an implied right to get access to the tools needed to do circumvention for fair use or other legitimate purposes. It is a hollow privilege indeed to be allowed to circumvent in order to make fair use and then to be told that all the tools necessary to effect that circumvention are outlawed.
Some of the exceptions to the access control provision specifically allow the development of circumvention technologies necessary to accomplish the lawful circumvention, but others do not. As a result, it is somewhat unclear from the statue whether there is an implicit right to develop or purchase a tool to engage in a lawful circumvention. This is an important question that will apparently be left to the courts to address. Fourth, both the access-control provision and the antidevice provisions are insufficiently clear in their explanation of key concepts and their use of technical terms.
Most strikingly, while the provisions indicate that ''No person shall circumvent a technological measure that effectively controls access to a work protected under this title" [sec. The anticircumvention provisions of the DMCA were the subject of considerable controversy during the legislative debate on WIPO treaty implemention, and, as adopted, they bear the imprint of lobbying and political compromise.
Rather than specifying a few general principles, the rules are instead very complicated, while at the same time ambiguous in important respects as discussed in some detail in Appendix G. They adopt, moreover, a copyright-centric view of what is, in fact, a more general public policy issue: When should the circumvention of TPSs used by anyone for any purpose by permissible? All of these difficulties illustrate the complexities of writing regulations for relatively uncharted areas involving complex and fast-moving technology.
The vendor interested in protecting content is only partly concerned with whether a TPS satisfies an abstract technical definition of security. Indeed, most of the techniques discussed in this section can be circumvented by people who are sufficiently motivated and knowledgeable. Vendors have more concrete concerns: Does the TPS deter enough potential thieves and facilitate enough use by paying customers to produce a profitable content-distribution business?
A protection system that is cumbersome and difficult to use may deter paying customers. If that happens, it is a failure, no matter how successful it may be at preventing theft. The cost of designing, developing, and deploying the protection system has to be in harmony with the market for the content. For content that is inexpensive or already available in a reasonably priced, non-Internet medium, there is no point to an expensive TPS that drives up the price of Internet delivery.
Preventing honest customers from giving copies to their friends may require nothing more than a reasonably priced product, a good distribution system, and a clear set of instructions. At the other end of the spectrum, preventing theft of extremely valuable content that must at some point reside in a networked PC requires a very sophisticated TPS, and even the best available with current technology may not be good enough.
Distributors can lose in the marketplace because they choose a TPS that is too sophisticated or too expensive, just as easily as they can because they choose one that is too weak. The law articulates what may legally be done, while technology provides some degree of on-the-spot enforcement. In the early days of the software market, for example, the copyright on some programs was enforced by distributing floppy disks that had been written in a nonstandard way, making them difficult to copy. But law and technology are not the only tools available for grappling with the sometimes difficult task of distributing intellectual property with-.
In the commercial setting, a third powerful factor in the mix is the business model. By selecting appropriately from the wide range of business models available, a rights holder may be able to influence significantly the pressure for and degree of illegal copying or other unauthorized uses.