North American Anti-Circumvention: Implementation of the WIPO Internet Treaties in the United States, Mexico and Canada

Authors

• Heather A. Sapp

Abstract

The speed and ease with which digital formats of copyrighted works can be copied and exchanged on the Internet have given rise to "legal developments that once might have seemed unlikely or unthinkable." Although the digital era was hailed by many for the potential of providing a global marketplace for copyrighted works, many copyright holders were concerned about the ease of digital piracy. In some senses, despite the promise of new markets and increases in efficiency, the digital era signaled a copyright holder's nightmare. Works could be immediately and perfectly copied and then immediately and perfectly distributed. As a result, copyright holders began utilizing technological "locks"s to guard against unauthorized access to their underlying copyrighted works. In 1996, concerns about the possibility of circumvention of these technological protection measures (TPMs) prompted many World Intellectual Property Organization (WIPO) members to enact two treaties (collectively referred to as the WIPO Internet Treaties) obligating contracting states to provide adequate protection and effective legal remedies against the unlawful circumvention of TPMs.

To date, eighty-one countries are parties to the WIPO Internet Treaties; however, the obligations have been fully or partially implemented in only fifty-two countries. As of 2004, only sixty-one countries had attempted implementation of the anti-circumvention provisions (Article 11 of the WIPO Copyright Treaty and Article 18 of the WIPO Performances and Phonograms Treaty). In fact, the United States' most important trading partner, Canada, has signed the treaties but has failed to ratify and implement the obligations. The United States' second largest trading partner, Mexico, has ratified the treaties16 and allegedly self-executes their obligations, but is the target of criticism by those in the content industries for lack of effective enforcement.

This paper explores the legal framework surrounding TPMs in North America. Part I discusses the WIPO Internet Treaties, in particular the provisions prohibiting the circumvention of technological measures protecting access to copyrighted works. Part II explores the framework for intellectual property protection provided by the North American Free Trade Agreement (NAFTA). Part III examines the divergence in protection for TPMs amongst the United States, Mexico, and Canada. Finally, Part IV argues that, because TPMs are such an important part of digital copyright, failure to implement harmonious laws undercuts the theory and spirit of NAFTA.

Recommended Citation

Heather A. Sapp, North American Anti-Circumvention: Implementation of the WIPO Internet Treaties in the United States, Mexico and Canada, 10 Computer L. Rev. & Tech. J. 1 (2005)