US could learn from Brazilian penalty for hindering fair use

By Nate Anderson

Brazil has proposed a broad update to its copyright law (Portuguese) and it contains a surprising idea: penalize anyone who "hinders or impedes" fair use rights or obstructs the use of work that has already fallen into the public domain.

A huge win for consumers? Sure, but it gets better. A moment's thought reminds us that most DRM schemes will eventually run afoul the above provisions, since they apply in perpetuity. That DRMed music file will still be DRMed even after the song has fallen into the public domain.

So Brazil wants to ensure that DRM "has time-limited effects that correspond to the period of the economic rights over the work, performance, phonogram or broadcast." Once copyright has expired, DRM should, too.

As if that's not enough, Brazil says that DRM can be bypassed in order to make any "fair" use of the work or in cases where the copyright has expired but the DRM has not.

Contrast this with the US approach to copyright in the Digital Millennium Copyright Act (DMCA), which said nothing about time-limited DRM and made circumvention illegal in nearly all cases, even when the intended use of the material would be legal.

Brazil's proposal could be spun as something hostile to rightsholders, but it's not that simple. The law does provide protection for DRM; in general, it is illegal to remove, modify, bypass, or impair such anti-copying technology. It's just that rightsholders can't use DRM as a digital lock to give themselves more control over a work through technology than they have under the law.

Treaties

While some content industry lobbyists like to make arguments about "living up to international norms" on DRM to suggest that countries need to take a hard line on anticircumvention, the "international norms" allow plenty of leeway. The WIPO Internet Treaties, one of the key parts of this international consensus, require signatories to "provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law."

DRM must be defended only when it restricts acts that are "not permitted by law." Since the law in places like Brazil, the US, and many other countries contains fair use or fair dealing provisions, those countries are authorized to allow DRM circumvention for those uses as long as general bypassing is disallowed.

Given the nature of most fair use laws, plenty of murky cases will have to be examined by the courts. That's a slow, messy solution, but one that allows for flexibility and creativity; the "clean" alternative of simply outlawing DRM circumvention almost completely leads to the absurd situation where A US citizen can legally rip a CD to an iPod but breaks the law when doing the same with a DVD.

Michael Geist, a Canadian law professor who highlighted the new proposal, sums it up as a properly balanced approach that doesn't buy into the "more is better" approach to copyright protections. "In other words, the Brazilian proposals recognizes what the Supreme Court of Canada stated several years ago," he writes, "over-protection is just as harmful as under-protection."