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第301回:TPP協定知財章リーク文書(DRM回避規制関連部分)

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 また前々回前回に引き続き、今回はTPPリーク文書の中からDRM回避規制関連部分について取り上げる。DRM回避規制の問題は他の話に比べると特にややこしいこともあってかなかなか話題になりにくいのが残念なのだが、それでも決して重要性が劣る訳ではない。

 まず、また長くなるが、関連部分の抜粋と翻訳を以下に載せる。

Article QQ.G.10: {Copyright and Related Rights / Technological Protection Measures}(Footnote: Negotiators' Note: Article QQ.H.4.15 should be discussed after discussions on this issue.)

[US/AU/SG/PE/MX(Footnote: Negotiator's Note: MX supports this provision in principle.)(Footnote: Negotiator's Note: CA supports this provision in principle pending outcome of discussions on exceptions.)(Footnote: Negotiator's Note: CL is considering pending the outcome of the language of this proposal.) propose; MY/VN/BN/JP(Footnote: Negotiator's Note: NZ reserves its position on article QQ.G.10 pending the outcome of exceptions and limitations on TPMs protection. JP is considering a possibility of producing its proposal on Technological Protection Measures.) oppose: (a) In order to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that authors, performers, and producers of phonograms use in connection with the exercise of their rights(Footnote: Negotiator's Note: CA reserves its position pending the clarification of the meaning of “rights”.) and that restrict unauthorized acts in respect of their works, performances, and phonograms, each Party shall provide that any person who:

(i) knowingly, [CL oppose: or having reasonable grounds to know](Footnote: Negotiator's Note: CA pending clarification of criminal remedies.), circumvents without [CL oppose: authority] [CL propose: authorization] any effective technological measure that controls access to a protected work, performance, phonogram, [PE/CA/CL oppose: or other subject matter]; or

(ii) manufactures, imports, distributes, [CL oppose: offers [CA/CL propose: for sale or rental] to the public, provides, or otherwise traffics(Footnote: Negotiator's Note: CA reserves its position pending clarification of “traffics”.) in] devices, products, or components, [CL oppose: or offers to the public] or provides services, that:

(A) are promoted, advertised(Footnote: Negotiator's Note: CA reserves its position pending clarification of the terms “promoted” and “advertised.”), or marketed by that person, [PE/SG/CL oppose: or by another person acting in concert with that person and with that person's knowledge,] for the purpose of circumvention of any effective technological measure,

(B) have only a limited commercially significant purpose or use other than to circumvent any effective technological measure, or

(C) are primarily designed, produced, or performed for the purpose of [CA oppose: enabling or facilitating] the circumvention of any(Footnote: Negotiator's Note: CA reserves its position pending clarification of “any”.) effective technological measure,

shall be liable and subject to the remedies set out in Article [12.12](Footnote: Negotiator's Note: CA reserves its position pending outcome of discussion of provision QQ.H.4(15).)(Footnote: Negotiator's Note: CA reserves its position pending outcome of discussion of provision QQ.H.4(15).). [CL propose: If the conduct is carried out in good faith without knowledge that the conduct in prohibited, a Party may exempt acts prohibited under this subparagraph that are carried out in connection with a nonprofit library, archive or educational institution].

Each Party shall provide for criminal procedures and penalties to be applied when any person, other than a nonprofit(Footnote: Negotiator's Note: CA seeks clarification if nonprofit applies to all institutions.) library, [CA/CL propose: museum,] archive, educational institution, or [CA/CL oppose: public noncommercial broadcasting entity,] [CA propose: any other nonprofit entity as determined by a Party's law] is found to have engaged [CA oppose: willfully and for purposes of commercial advantage [CL oppose: or private financial gain]] [CA propose: knowingly and for commercial purposes] in any of the foregoing activities. [SG/AU/PE/CL(Footnote: Negotiator's Note: CA seeks clarification of the intention of this sentence.) oppose: Such criminal procedures and penalties shall include the application to such activities of the remedies and authorities listed in subparagraphs (a), (b), and (f) of Article [15.5](Footnote: Negotiator's Note: CA seeks clarification as to whether article“15.15” is meant to refer to article QQ.H.7(7). CA reserves position pending clarification of QQ.H.7(7).) as applicable to infringements, mutatis mutandis. [(Footnote: [US/AU:For purposes of greater certainty, no Party is required to impose liability under Articles [9 and 10] for actions taken by that Party or a third party acting with the authorization or consent of that Party.] [Negotiator's Note: CA seeks clarification of this footnote.])][CL propose: No Party is required to impose civil or criminal liability for a person who circumvents any effective technological measure that protects any of the exclusive rights of copyright or related rights in a protected work, but does not control access to such work].

(b) In implementing subparagraph (a), no Party shall be obligated to require that the design of, or the design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as the product does not otherwise violate any measures implementing subparagraph (a).

[CL oppose: (c) Each Party shall provide that a violation of a measure implementing this paragraph is independent of any infringement that might occur under the Party's law on copyright and related rights.]

(d)(Footnote: Negotiator's Note: CA is considering these limitations.) Each Party shall confine exceptions and limitations to measures implementing subparagraph (a) [CL oppose: to the following activities,] [CL propose: certain special cases that do not impair the adequacy of legal protection of the effectiveness of legal remedies against the circumvention of effective technological measures] [CL oppose: which shall be applied to relevant measures in accordance with subparagraph (e)]:

(i) [CA oppose: noninfringing reverse engineering activities with regard to a lawfully obtained copy of a computer program, carried out in good faith with respect to particular elements of that computer program that have not been readily available to the person engaged in those activities(Footnote: [CL propose: For greater certainty, elements of a computer program are not readily available to a person seeking to engage in non-infringing reverse engineering when they cannot be obtained from literature on the subject, from the copyright holder, or from sources in the public domain.]), for the sole purpose of achieving interoperability of an independently created computer program with other programs(Footnote: [CL propose: Such activity occurring in the course of research and development is not excluded in this exception.])] [CA propose: reverse engineering activities with regard to a lawfully obtained copy of a computer program, for the sole purpose of achieving interoperability of the program or any other program];

(ii) [CA oppose: noninfringing good faith activities, carried out by an appropriately qualified researcher who has lawfully obtained a copy, [CL oppose: unfixed] performance, or display of a work, performance, or phonogram and who has made a good faith effort to obtain authorization for such activities, to the extent necessary for the sole purpose of research consisting of identifying and analyzing flaws and vulnerabilities of [CL propose: encryption] technologies(Footnote: [CL propose: Such activity occurring in the course of research and development is not excluded from this exception.]) [CL oppose: for scrambling and descrambling of information]] [CA propose: activities with regard to a lawfully obtained copy of a work, performance, or phonogram for the sole purpose of encryption research] ;

(iii) the inclusion of a component or part for the sole purpose of preventing the access of minors to inappropriate online content in a technology, product, service, or device that itself is not prohibited under the measures implementing subparagraph (a)(ii)(Footnote: Negotiator's Note: CA reserves its position.);

(iv) [CA oppose: noninfringing good faith activities that are authorized by the owner of a computer, computer system, or computer network for the sole purpose of testing, investigating, or correcting the security of that computer, computer system, or computer network] [CA propose: security testing activities that are authorized by the owner or administrator of a computer, computer system or computer network for the sole purpose of testing, investigating, or correcting the security of that computer, computer system or computer network];

(v) [CA oppose: noninfringing activities for the sole purpose of identifying and disabling a capability to carry out undisclosed collection or dissemination of personally identifying information reflecting the online activities of a natural person in a way that has no other effect on the ability of any person to gain access to any work] [CA propose: activities for the sole purpose of identifying or disabling a capacity to carry out collection or dissemination of personally identifying information];

(vi) lawfully authorized activities carried out by government employees, agents, or contractors for the purpose of law enforcement, intelligence, essential security, or similar governmental purposes(Footnote: Negotiator's Note: CA needs to reflect further on this paragraph.);

(vii) access by a nonprofit library, [CA propose: museum,] archive, or educational institution to a work, performance, or phonogram not otherwise available to it, for the sole purpose of making acquisition decisions; and

[CA propose: (viii) activities for the sole purpose of making a work, performance or phonogram perceptible to a person with a perceptual disability.

(ix) activities for the sole purpose of making an ephemeral reproduction of a work, performance or phonogram,

(x) circumvention of a technological measure on a radio apparatus for the sole purpose of gaining or facilitating access to a telecommunication service by means of the radio apparatus]

(viii) [CA oppose: noninfringing uses [SG oppose: of a work, performance, or phonogram] in a particular class of works, [SG oppose: performances, or phonograms] when an actual or likely adverse impact on those noninfringing uses [CL propose: or exceptions or limitations to copyright or related rights with respect to users] is [PE oppose: credibly demonstrated] [PE propose: found] [CL propose: demonstrated or recognized] in a legislative or administrative review or proceeding [SG oppose: by substantial evidence]; provided that [AU/PE oppose: any limitation or exception adopted in reliance upon this clause shall have effect for a renewable period of not more than three [SG propose: four] years] [AU/PE propose: any such review or proceeding is conducted at least once every four years] from the date of conclusion of such review or proceeding.]

[CA propose: (xi) Each Party may provide further exceptions and limitations to measures implementing subparagraph (a) in relation to non infringing uses as determined through a legislative, regulatory, judicial, or administrative process in accordance with the Party's law, following due consideration of the actual or potential adverse impact on those non infringing uses.]

(e)(Footnote: Negotiator's Note: CA is considering paragraph (e) pending the outcome on discussions on limitations and exceptions.) The exceptions and limitations to measures implementing subparagraph (a) for the activities set forth in subparagraph [4.9(d)] may [CL oppose: only] be applied as follows[CL oppose: , and only to the extent that they do not impair the adequacy of legal protection or the effectiveness of legal remedies against the circumvention of effective technological measures]:

(i) Measures implementing subparagraph (a)(i) may be subject to exceptions and limitations with respect to each [CL propose: situations and] activity set forth in subparagraph (d).

(ii) Measures implementing subparagraph (a)(ii), as they apply to effective technological measures that control access to a work, performance, or phonogram, may be subject to exceptions and limitations with respect to activities set forth in subparagraph (d) (i), (ii), (iii), (iv), and (vi).

(iii) Measures implementing subparagraph (a)(ii), as they apply to effective technological measures that protect any copyright or any rights related to copyright, may be subject to exceptions and limitations with respect to activities set forth in subparagraph (d) (i) and (vi).

(f)(Footnote: Negotiator's Note: CA is considering paragraph (f).) Effective technological measure means any [CA propose: effective] technology, device, or component that, in the normal course of its operation, controls access to a protected work, performance, phonogram, [PE/CL/CA oppose: or other protected subject matter,] or protects [CA oppose: any copyright or any rights related to copyright] [CA propose: rights related to a work, performance or phonogram].][CL propose: and cannot, in a usual case be circumvented accidentally.]

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