Literature: Ina Lucas, On the "effectiveness" of technical measures pursuant to Section 95a UrhG in accordance with Directive 2001/29/EC – also a presentation of German and Finnish case law, GRUR Int. 2017, 114; Stefan Bechtold, From copyright to information law – Implications of digital rights management, dissertation, Munich 2002; Peter Wand, Technical protection measures and copyright: Comparison of international, European, German and US law, dissertation, Munich 2001.
28 The definition limits the term to effective technical protection measures, the circumvention of which without permission is prohibited by law. The basis for the prohibition of circumvention are standards that are based on Art. 11 of the WIPO Copyright Treaty (WCT) or similar international agreements.
29 The definition was introduced in version 4.0, but is not intended to change the content, merely to clarify the scope of application of the prohibition of technical protection measures.
30 Pursuant to Article 11 of the WCT (WIPO Copyright Treaty), the contracting parties shall
taken by authors
and which are related to the exercise of their rights under the WCT or the Berne Convention for the Protection of Literary and Artistic Works ("Berne Convention"),
and which restrict such acts in relation to the works of authors that are not authorised by the authors or by law.
31 Further international principles for the protection of technical measures can be found in Art. 7(1)(c) of the Computer Programme Directive
32 In Germany, the protection of technical measures is regulated in Sections 95a to 95d of the Copyright Act (UrhG). The provisions implement the aforementioned international directives and agreements. Section 95a UrhG defines the term "technical measure" and contains the basic requirements for the protection thereof. The prohibition in Section 95a(1) UrhG reads as follows:
"Effective technical measures for the protection of a work protected under this Act or other subject matter protected under this Act may not be circumvented without the consent of the right holder if the person acting is aware or, under the circumstances, must be aware that the circumvention is being carried out in order to enable access to such a work or subject matter or to enable its use."
33 The circumvention of technical measures is therefore generally not permitted without the consent of the intellectual property rights holder.
34 According to Section 95a (2) sentence 1 UrhG and, in almost identical wording, Article 6 (3) sentence 1 InfoSoc Directive, technical measures within the meaning of the provision are "technologies, devices and components which, in normal operation, are intended to prevent or restrict acts relating to protected works or other protected subject matter under this Act [note: UrhG] which are not authorised by the rightholder."
35 Technical measures are effective in accordance with Section 95a (2) sentence 2 UrhG (almost identical to Article 6(3) sentence 2 of the InfoSoc Directive), "insofar as they control the use of a protected work or other protected object under this Act by the rights holder through access control, a protection mechanism such as encryption, distortion or other transformation, or a mechanism for controlling reproduction that ensures the achievement of the protection objective ."
36 Since the law and also the definition in the licence text refer to "effective" measures, the decisive factor is the value attached to "effectiveness". According to case law in Germany, such measures are effective if circumventing them presents an obstacle that a normal user cannot easily overcome.
37 Examples. An ineffective measure is, for example, copy protection applied to a CD if the media player programme (which may even be pre-installed) on a computer simply ignores it when the CD is read and allows the CD to be copied. Measures applied to a video file available on YouTube or relevant streaming providers to prevent copying are also likely to be ineffective if the video can be downloaded using relevant tools to prevent copying are also likely to be ineffective if the video can be downloaded using relevant tools or copied by simply recording the screen.
38 Effective within the meaning of the definition would be, for example, a measure that only allows access to the work after entering a username and password, as well as all other digital rights management (DRM) measures that restrict access to or modification of the work without it being possible for a "normal user" with average knowledge to circumvent them.
39 Sometimes, circumventing copy protection is seen as a sporting challenge until the circumvention method has become so established that it can no longer be considered an effective technical protection measure. This is what happened in the case of the DVD encryption algorithm CSS (Control Scrambling System), which was used to playback of DVDs on unauthorised hardware. With the development and distribution of DeCSS – a programme for decrypting the algorithm – CSS can no longer be considered effective .
40 However, the circumvention of such measures that are not intended to prevent the exercise of licensed rights is not covered : for example, the region code on DVDs only prevents playback on DVD recorders that are assigned to specific geographical regions, but does not prevent copying. Playing – the reception of the work – is, however, fundamentally a permissible act.
41 The provisions on the protection of technical protection measures in German copyright law provide for exceptions to the prohibition of circumvention in certain situations. Section 95a (4) UrhG, for example, exempts "tasks and powers of public authorities for the purpose of protecting public safety or the administration of criminal justice, as well as the powers of cultural heritage institutions pursuant to Section 61d UrhG" from the prohibition of circumvention. However, the exception is unlikely to have any effect on the definition of protective measures. The definition of protective measures in the CC licences refers to all measures that may not be circumvented in principle, regardless of whether exceptions apply in special circumstances.
42 Irrespective of this, circumvention is permitted within the scope of the exercise of licensed rights under CC licences, see section 2.a.4.
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Open Access Kommentar, Commentary on V. Section 1.d./c./e. Effective technical protection measures is licensed under a Creative Commons Attribution 4.0 International License.
