Andres Guadamuz a.guadamuz at ed.ac.uk
Tue Oct 3 13:47:42 EDT 2006

MJ Ray wrote:

> 5. Better anti-TPM language already exists in the CC-Scotland drafts,
> but an equivalent solution in the treaty-style phrasing of the generic
> licences could be acceptable too.


I haven't been following the debate closely, but this caught my eye. As 
one of the members of the CC-Scotland team, I can confirm unofficially 
that the reason why the language in the Scottish license contains intent 
is because of peculiarities of UK's copyright legislation. I have 
emailed Jonathan Mitchell (who was the person who drafted the licence), 
so I will have to wait for confirmation on this, but if my memory serves 
me well, this had to be done to comply with the idiosyncratically 
drafted WCD implementation into UK law.

If you read the legislation, it is easy to see why the CC-Scotland 
licence needed to include intent. Section 296ZA of the Copyright, 
Designs and Patents Act reads:

"This section applies where -
(a) effective technological measures have been applied to a copyright 
work other than a computer program; and
(b) a person (B) does anything which circumvents those measures knowing, 
or with reasonable grounds to know, that he is pursuing that objective."

As you can see, the legal requirement is not only that an effective TPM 
has been circumvented, but that it was done with intent, "knowing" that 
it was pursuing circumvention. AFAIK, the reasoning behind this 
provision is to stop unwilling infringement.

Personally, I don't see much sense in exporting this peculiarity in UK 
law to the rest of the world.



Andres Guadamuz
AHRC Research Centre for Studies in
Intellectual Property and Technology Law
Old College, South Bridge
Edinburgh EH8 9YL

Tel: 44 (0)131 6509699
Fax: 44 (0)131 6506317
a.guadamuz at ed.ac.uk

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