Copyright Law Protection toAccess Control for “Cloud”

ALAI Congress Kyoto 2012
Oct. 17, 2012
Takashi B. Yamamoto
11. What is Access Control?
…under American copyright law
Copyright Act, §1201(a)(1) prohibits circumvention of Access Control(a)(2) prohibits devices that circumvent Access Control(b) only prohibits devices that circumvent Copy Control

Definition
Copy Control: T.M. that protect Copyright.
=T.M. in WIPO Treaties
Access Control: T.M. that protect access to a Work.

Question: What is the relationship between
Copyright and Access Control?
2Two Distinct Constructions“A.C. protects Copyright” (Chamberlain approach)…Chamberlain v. Skylink (Fed Cir. 2004) :“The essence of the DMCA’s anticircumvention provisions is that§§1201(a),(b) establish causes of action for liability. They do notestablish a new property right. ”“§ 1201 prohibits only forms of access that bear a reasonable
relationship to the protections that the Copyright Act otherwise
affords copyright owners.”“A.C. protects a new Property Right” (MDY approach)…MDY v. Blizzard (9th Cir. 2010):“section (a) creates a new anti-circumvention right distinct from
copyright infringement, while section (b) strengthens the traditional
prohibition against copyright infringement.”
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The Senate Report for DMCA
ProhibitedDevice
Copy Control§1201(b)Access Control§1201(a)(2)Protected Right

Traditional
CopyrightRights§1201(a)(1)“Right” “Access”

4The Issue here
Does any Access Control needa new Access Rightin the “Cloud” environment?

5

2. Kinds of T.M. for Works
Elemental Technologies:
Authentication (ID &PW….)
Encryption
Embodied Signals
Specially Designed Apparatus or Software

Comprehensive System:
T.M. for Package ContentsT.M. for Broadcast Contents
T.M. for Network Contents
T.M. for Download Contents
T.M. for Non-Download Contents

T.M. for Pre-installed Contents6(1) T.M. for Download Contents
Server•Fair PlayWorks(encrypted)•WM DRM•Acrobat eBook

ACauthentication

download
Recordable media

C ACWorksP
U decryption

CCWorks(encrypted)

ClientConclusion: A.C. is in relation with traditional Copyright.
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(2) T.M. for Non-Download Contents
ServerWorks•Online Applications•Online Databases•MDY (Online Game)ACauthentication

CPU
ClientConclusion: A.C. is NOT in relation with traditional Copyright.
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(2) T.M. for Non-Download Contents
Server•Online Applications

Works•Online Databases•MDY (Online Game)ACauthentication

CAC
P anti-bots programU
ClientConclusion: A.C. is NOT in relation with traditional Copyright.
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3. Access Right required
1.

2.
3.

Non-download contents in the "Cloud"environment is employed in a new manner toenjoy the benefit of a work,
which manner, however, was not expected by
the traditional copyright.
The new manner will become substantial andimportant business in the "Cloud" environment.
Therefore, a new property right or "accessright" under access control protection should
be added to the bundle of rights in copyrightso that the copyright system could succeed inthe "Cloud" environment as well.
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4. How T.M. are Protected
C. C.

A.C. forCopyright

A.C. forAccess Right

Yes

?

-Yes,
but limitedYes,
but limited

-U.S.

Yes

Yes

EUYes

Yes

WIPO
TreatiesJapan

Yes(MDY case)?
(UK: No)11

Thank you very muchfor your attention.

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