Introduction

Technology has always helped shape the content, dimension and extension of copyright and related rights. A connection that began with the printing press and continued with radio and analog recording technologies in the early 20^th century and more “proximate in real time, but ancient history in the span of technological change” video capture devices to record over the air, and in the last two decades, digital technologies.

But now technology arose a double edged sword.

Along with the marvels of the Information Society, brought about by the fast development and expansion of the internet and digital technology, also came an exponential increase on the forms of copyright infringement, which illustrated that the traditional paradigm of protection conferred by copyright was inadequate to face the new challenges imposed by such technologies as digital reproduction technologies and internet data transmission technologies.

In Part I we will analyze how copyright and the paradigm of protection copyright provided was ill-equipped to counter and deter the new ways of copyright infringement that the developments in digital technologies and the creation and proliferation of the internet made possible.  

In Part II we will approach the counter-attack, how the copyright holders made use of those new technologies and the brand new world that flourished on-line to not only to regain control over their works and reinforce the protection of the rights they hold over their works under copyright, but also to establish and develop new business models.

A paramount feature in technology is evolution, change, and in the game of cat and mouse between copyright holders and pirates of the cyber-seas, a shift on which actor had the upper hand was bound to occur. The technological protection measures implemented by copyright holders were not (nor could have been) infallible, and so the solution was to back the technology with Law. It was done so by providing legal protection to the technological protection to the legal protection (copyright) that protects the author of the intellectual work. Therefore, in Part III we see how the international obligations arisen from the WIPO Internet Treaties were complied with by the United States of America and the European Union, as tow of the major actors in the international theater in terms of copyright protection, and finally how and why the Macau Special Administrative Region of the People’s Republic of China, albeit not bound by those international instruments also decided to provide legal protection against the circumvention of DRM.  

Finally in Part IV we will conclude by summarizing and briefly analyzing the consequences of that legal protection granted to DRM that may have a three level protection to copyright.

I – The road to Technological Protection and Digital Rights Management

The pirating of copyrighted works, whether they take the form of literary, audio, visual and (more recently) softwareworks, is not a recent phenomenon and the first cases can be traced back as late in time as Alexandria when it is recorded that Vitruvius (257-180 BC), when judging a poetry competition exposed plagiarists, who were tried and convicting for stealing the words and phrases of others, and also the Iustiniani Digesta, Liber XLI, tome 1, 65, and Liber XLVII, tome 2, 14 §17 established the theft of manuscripts as different from the theft of other goods.

In fact, up until mid-20th century the possibilities to copy copyrighted works were limited, the copy of a work required expensive equipment with varying learning curves to its use plus the added cost of a physical carrier needed for the copy resulted that the reproduction or at least the distribution of pirated works was made in public spaces, which limited the widespread public enablement and allowed a modicum of control over the reproduction and distribution of copies of the works. Furthermore the reproduction and copying technologies available at the time never really allowed the pirated copy to reach the quality of the original or authorized copy, a fact which also served as a deterrent to the infringement.

We can see that in the case of literary works, while the introduction of the moveable type printing press allowed for the reproduction of books to be made mechanically instead of by hand, it was, nonetheless, still unfeasible for a reader to copy a book, as the copy of a book required a printing press and a reader could not simply have one, and even with the introduction, development and proliferation of duplication machines well into the 20^th Century the act of copying a book still faced those essential limitations which worked as a deterrent for any infringing acts. 

Those same limitations were also present in the infringement attempts made over other copyright works. In the end of the 19^th century and into the early 20^th century, the enjoyment of music was only possible in loco, which allowed for the control of production and access to the work. While it is true that the technological advances provided by radio and analog recording technologies altered the time and place were such works could be enjoyed, at the same time they did so within the parameters of production provided by copyright.

As a result, any individual infringements or even pirating operations did not affect the monopoly of copyright in such a way as to endanger the continuity of that monopoly, after all creation, production, distribution and use of the works were still effectively safeguarded by the protection granted by copyright, and thus the impact of the infringement on the work’s value and marketplace was limited. The paradigm of protection worked, that is, until the technological advances experienced in the Digital Age.

Thus it bears the question. What was the paradigm shift that the digital age brought that affected the creation, production, distribution and use of copyright works in such a that severely impacted the protection provided by copyright to authors and right holders?

“It is the advent of digitalization that initiated the paradigm paradox, one that changed the market place, the means of capture, production, distribution and ability to exercise controls that protected content value”.

With the introduction of the digital format, those traditional limitations on individual access, the capacity to copy, transmit and distribute original quality like content have been minimized or in all eliminated in the digital context.  In the current state of technological development, not only have the possibilities reproduce copyrighted works have multiplied, but it is also possible to do so without any limitation as soon as the work is converted into a digital format. The quality of the copies has dramatically increased, to a point in which they are wholly indistinguishable from the original. The internet, as a world wide web of connections, has expanded considerably the possibilities to publish and distribute copyrighted works, and the ability to locate and gain access to copyrighted materials on-line has been enhanced by search engines that employ ”web crawling” technologies to index content and subsequently provide links for access, allowing such materials to be downloaded and distributed by e-mail or on peer-to-peer (P2P) networks . It became strikingly difficult for copyright holders to exercise the control provided by copyright over these new means of access and distribution, resulting in a sharp decline in the turnover in copyright-heavy industries such as that of the sound carrier and film industries.

The technology that heralded the Digital Age represented a serious threat to copyright, but at the very same time the technologies that embodied that threat also brought along with them the glimmer of new forms to protect, access and distribute copyrighted works.

II – Protecting Copyright with Technology

A) Technological Protection

 “The answer to the machine is in the machine”, or as also aptly put by Pamela Samuelson, “Digital technology is, however, not just part of the problem; it may also be part of the solution”, actually these new technologies also gave way to new tools and means to protect copyrighted works. As the conventional legal protection provided by copyright began to crumble under the assault by the digital technology, copyright holders considered to reinstate and reinforce that protection using that very same technology. The development of digital technology and the rise of electronic communication networks largely enabled the infringement of copyright at a commercial scale, but, at the same time, those same means largely facilitated the access to the general public to information and cultural goods, under copyright and public domain. Copyright holders used the architecture of the technical systems to create devices that sought to deny access to unauthorized users.

Digital Rights Management is a broad term that is used to describe both technological protection measures (TPM) and electronic rights management information (ERM). The acceptance of the DRM terminology lead it to be used to identify all technology protecting copyright content, ranging from access control mechanisms that manage the access to the work by users, to anti-copy technologies, that prevent or limit the possibility to copy content, and even models for electronic management of copyright.

DRM systems enabled copyright holders to regain control over digital contents, allowing them to sell their products safely to authorized users, facilitating effective and sophisticated rights administration and consequently create new business models for digital content.

B) Defining DRM: a Technological Approach

Of all the DRM systems, the ones that make use of encryption technologies, despite their long military background, are amongst the most commonly adopted, being further and further used in commercial systems and applications. The use of encryption technologies for the service of copyright protection allowed for the development of Content Scramble System or CSS. CSS is an access control and copy-prevention system implemented in Digital Versatile Discs (DVD), it encrypts, according to an encryption algorithm, the digital sounds and graphic files on a DVD and requires the use of an appropriately configured hardware, case in hand a DVD player, in order to decrypt, unscramble and play back, but not copy the contents on the DVD.

DRM systems also include copy proof or anti-copy devices that that prevent the making of a copy of work or at least make it harder to do. These systems are probably the “oldest” and most used devices protecting the work by integrating in its carrier a mechanism preventing or inhibiting to carry out some restricted acts.

One other type of DRM system consists of Digital Fingerprints, serial numbers and “traitor tracing”, these are systems that employ various technologies to identify users and trace back illegal copies of digital contents, providing vital evidence so that legal measures may be taken against unlawful users.

A recent trend in DRM schemes, employed mainly by the videogame industry, bears evidence to the cornucopia of DRM schemes. Creative DRM moves away from the conception of protection of the copyright holder’s monopoly by blocking the unauthorized action over work, to a preventive approach of the piracy problem. This type of schemes will not block the unauthorized access or copy, but the enjoyment of the work will be severely hindered due to broken game mechanics.       

The myriad of technologies currently available and those yet to be invented that can be applied of configured as a DRM system renders any definition of technological protection measures or electronic rights management information based on their modus operandi or technological format virtually impossible. The approach should be teleological i.e. in terms of their purpose rather than their cause.

C) Defining DRM: a Teleological Approach

Under that teleological point-of-view the WIPO Copyright Treaty article 11 presents technological measures as those used by the authors in connection with the exercise of their rights under that treaty or the Berne Convention and that restrict acts, in respect of their work, which are not authorized by the authors concerned or permitted by law. A similar terminology is used in article 18 of the WIPO Performances and Phonograms Treaty. Without going, at this juncture, into the conditions these technological measures must meet in order to warrant legal protection, the description provided by the WIPO internet treaties can be used as orientation when analyzing any particular measure that has been implemented.

According to Koelman and Helberger, the technological protection measures can be divided into four categories:

1. TPM that control the access to the work;
2. TPM that control the use of the work;
3. TPM that count the times the work was accessed or used;
4. TPM that protect the integrity of the work.

The technological protection measures that control the access to the work may assume several forms, but the most prominent of these forms will be over content made available on line by requesting that a password be entered in order to access to the website from where the work may be accessed. Another form to control the access to the work will be to use a receiver device, this will occur when, to have access to certain television broadcasts, one would be required to have a decoder unit. One other form to control the access will operate through a previously purchased carrier by limiting the or preventing the reproduction of the work inscribed in the carrier, or even denying access following the first use, the latter will occur with software installation CD-ROM’s were the installation software will destroy itself following the first installation.

Whereas TPM that exercise control over certain uses of the work, they usually exercise such control by preventing that a digital document is printed into a physical carrier or copied in full or even be made available in the internet. These technological measures are usually used to avoid the excessive proliferation of copies of the work, which can be achieved by only allowing the original to be copied (where one could not make copies of a copy) or by installing a worm in the device that would delete any copies of the document.

On the other hand, TPM that number the times the work was accessed or used, although not directly restricting neither access nor the use of the work, they function as a copyright management device by recording the use made by the user and charging the appropriate fee in accordance with the license agreement. These technological measures of protection ensure that the use and or access to work is exercised in conformity with the license agreement.

Finally, technological protection measures that seek to protect the integrity of the work should not be confused with electronic rights management information ERM.

The purpose of any TPM system categorized as protecting the integrity of the work would be to prevent the user from making any changes to the work, and would, consequently, mainly used for the protection of the author’s moral rights. Once again using the WIPO Internet Treaties as orientation, but now seeking for the definition of Electronic Right Management Information (ERM), we can perceive that under Article 12 (2) of the WCT and Article 19 (2) of the WPPT mutatis mutandis, ERM is presented as the information which identifies the work, the author of the work, the owner of any right in the work or information about the terms and conditions of the use of the work. This information, which comprises the ERM, corresponds to an extent to the authors’ moral rights as conferred under article 6bis of the Berne Convention and Article 5 of the WPPT, namely the right to authorship.

The common form of operation for such TPM is the compulsory introduction of a password before the content can be edited (normally seen in Blogs and Wikipedia to avoid vandalism).

These are not watertight categories, and particular TPM systems may be included in more than one category depending on the purpose of the implemented system.

III – The legal protection granted to DRM

A) General Considerations

After copyright holders used in their favor the technological developments brought by the digital age to reestablish and reinforce the protection granted by copyright over their works, the game of cat-and-mouse continued. The flexibility of digital technologies that allowed for copyright holders to create new business models and implement new forms of technological protection could also be used to defeat and circumvent those protections. This valid fear voiced by copyright holders lead to the creation, by legislators, of regulations worldwide that prohibit and criminalize the circumvention of technical protection measures and certain preparatory operations. “Electrifying the fence” was the expression used by Severine Dusollier to describe the legislative movement to protect by Law the new technologies protecting copyright and related rights in the Digital Age.

This has been an area of growing importance, especially to and because of the videogame industry, as can be seen in the proliferation of decisions regarding mod-chips and homebrew like Sony Computer Entertainment v Owen, Sony v Ball in the UK Courts and Sony Computer Entertainment America, Inc. v. Divineo, Inc and more recently in the dispute Sony Computer Entertainment America v. George Hotz, which was settled out of Courts, in the US. 

B) WIPO Internet Treaties

The inability of the Berne Convention to face the new challenges brought by the Digital Age, allied with the World Intellectual Property Organization’s unwillingness to amend the centennial treaty led that international organization to convey two expert panels in 1992, and from there to the discussion held in several symposiums between 1993 and 1995, culminating in the 1996 WIPO Diplomatic Conference where a solution was found. 

The first international legislation to provide for the legal protection of DRM were the above mentioned WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, both enacted in Geneva, 20^th December 1996, and entered into force in 2002, 6^th March for the WCT and 20^th May for WPPT, collectively known as WIPO Internet Treaties.

The WIPO Internet Treaties requires the Contracting Parties 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”.

Thus, according to the 1996 WIPO Internet Treaties, legal protection of technological protection measures will only be extended to those that fulfil the following cumulative conditions:

TPM that are effective;

1. TPM that are used by authors, performers or producers of phonograms;
2. TPM that are used in connection with the exercise of copyright or related rights under the WCT, the WPPT  or the Berne Convention; and,
3. TPM that restrict acts, in respect of their works, which are not authorized by the authors, performers or producers of phonograms concerned or permitted by law.

As long as those conditions are met, the Contracting Parties are obliged to prohibit and provide legal remedies against the circumvention of those measures. It is worthy of note the fact the general principle of protection established under the WIPO Internet Treaties only refers to individual acts of TPM circumvention, an approach which has been described as “conduct only”. The manufacturing and distribution of devices capable of circumventing TPM was purportedly left out of the Treaties scope in light of pressure carried out by the manufactures of those devices.

Legal protection was also extended against the defeating of the rights management information (ERM), which (as seem above in Part II) can also be target of protection of TPM.      

The international obligation to provide for adequate legal protection to technological measures protecting copyright has been complied by the US in its Digital Millennium Copyright Act of 1998 and by the European Union by the Directive 2001/29/EC of 22^nd May 2001 on the harmonization of certain aspects of copyright and related rights in the information society, which has now been implemented in all Member States.

C) Digital Millennium Copyright Act

The Digital Millennium Copyright Act (DMCA) divides the technological protection measures into two categories. On one hand TPM that effectively control the access to copyrighted works, and, on the other hand TPM that effectively protect an exclusive right of the copyright owner under section 106 of the Copyright Act (i.e. the right to copy, to display, to perform, to distribute or to communicate the work). 

Both TPM for access control and for rights protection are legally protected against the “manufacture, import, offer to the public, or otherwise traffic in any technology, product, service, device, component, or part thereof, that”:

• In the case of access control measures: “(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under [copyright] or (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under [copyright] or (C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under [copyright]”.
• In the case of rights protections measures “(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under [copyright] in a work or a portion thereof, or (B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under [copyright] in a work or a portion thereof, or (C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under [copyright] in a work or a portion thereof”.

Despite the protection granted to both categories of TPM, the importance of establishing a distinction between these two categories, a task which most times of the proves to be extremely difficult, is still, nonetheless, paramount as there is one form of legal protection that is granted under Chapter 12 of Title 17 of the U.S.C. to one of categories of TPM that is not extended to the other. In fact, only the TPM that control the access to the copyrighted work will be protected against circumvention.

These different scopes of protection find its reason in the need to continue to allow the public the ability to continue to make fair use of copyrighted works. The U.S. Copyright Office argues that “since copying of a work may be a fair use under appropriate circumstances, section 1201 does not prohibit the act of circumventing a technological measure that prevents copying. By contrast, since the fair use doctrine is not a defense to the act of gaining unauthorized access to a work, the act of circumventing a technological measure in order to gain access is prohibited”.

This argument has lead authors such as Jane C. Ginsburg to argue that the DMCA has established a new right in the copyright catalog, the right to control access to copyrighted works. This “Access Right” can be defined as the right to control the manner in which the members of the public apprehend or experience the copyrighted work. As part of this new control over the access to the work, the copyright owner may, depending on the price paid by the user, limit the listening, viewing, reading, in a sense the experiencing of the work by a number of times, and / or by number of devices where such experiencing may take place, and / or by duration of the access and so on. In contrast neither traditional reproduction nor public performance rights could have ever reached much of this conduct or yearned for such level of control.

It is also worth noticing that the DMCA went further than the WIPO Internet Treaties and sought to tackle the issues left open by the Treaties to implementation in national law. Originally, the Contracting Parties to those international instruments were only obliged to provide adequate legal protection and effective legal remedies against the circumvention of technological protection measures and electronic rights management information, the aforementioned “conduct only” approach, but the DMCA also provides protection against the manufacture import, offer to the public, or otherwise traffic in any technology, product, service, device, component, or part thereof, that is designed or produced for the purpose of circumventing a TPM. The raison-d’etre of this extended protection lies with the fact that the “conduct only” approach is regarded to provide insufficient protection due the difficulty in its implementation. Whereas the act of circumventing is normally perpetrated in the privacy of the home or work place. It is neither feasible nor desirable to undertake systematic monitoring of private conduct to prevent circumvention activity. However if the devices or services used to circumvent these measures can be legitimately distributed, advertised, purchased or rendered, then easily the manufacture and distribution of circumvention technologies will have the potential to be far more damaging to copyright holders than the individual circumvention acts.

The DMCA also addresses the issue on whether equipment, namely equipment with copying capabilities, should be required to respond to copy protection technologies, issue which the WIPO Internet Treaties purposefully left to national legislator to resolve. The technical conundrum being that, albeit equipment such as personal computers do not override nor remove copy protection technologies, they are not construed to “look for” those protections, normally avoiding or ignoring these forms of TPM. The manufacturers of this type of equipment, namely the computer industry and the consumer electronics industry, are not willing to be held accountable for providing their equipment with the capability to respond to all present and future copy protection technologies. On the other hand, copyright holders comprehensibly reject the notion that equipment manufacturers may design their equipment to avoid or ignore copy protection technologies. The DMCA resolved this dispute in §1201 (c) (3), the “no-mandate” provision, by clarifying that nothing in the prohibition on circumvention devices “shall require that the design of, or 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 such part or component, or the product in which such part or component is integrated, does not otherwise fall within the prohibitions of subsection (a)(2) or (b)(1)”.    

The civil remedies and criminal liability for the circumvention of copyright protection measures and management information are established in §1203 for civil remedies and §1204 for criminal offenses and penalties.  

C) Directive 2001/29/EC

In the European Union the issue on the protection of TPM had already been addressed in the 1988 Green paper on copyright and the challenge of technology, where some solutions against piracy were proposed. Following that discussion, the Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs was enacted. That earlier directive instituted a peripheral protection against any person who placed in circulation or possessed, for commercial purposes, a copy of a computer program knowing or having reason to believe that is an infringing copy or placed in circulation or possessed, for commercial purposes, any means the sole intended purpose of which is to facilitate the unauthorized removal or circumvention of any technical device which may have been applied to protect a computer program (Article 7).

Contrary to the soft approach of the Directive 91/250/EEC, the Directive 2001/29/EC used the decade worth of technological developments as a natural extension of the legal powers of copyright and related rights, where the copyright and related rights holder would have the absolute power to block and limit his work by making of use of encryption technologies as a tool to ensure the authenticity, integrity and confidentiality of the electronic communications.

The Directive 2001/29/EC defines technological protection measures as any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect to copyrighted works or other subject matter, which are not authorized by the holder of any copyright or any right related to copy right as provided for by law or the suis generis right provided to the maker of a database (Article 6 no. 3, 1^st paragraph).

The protection will only be granted to “effective technological measures”, which the Directive 2001/29/EC considers to be those that provide the copyright holder control over the use of a copyrighted work or other subject matter through application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject matter or a copy control mechanism, which achieves the copyright protection purpose (Article 6 no. 3, 2^nd paragraph).

Effectiveness of a TPM should not be understood as that TPM being infallible under the penalty of exhausting the purpose of the legal protection, nor should the TPM be considered to have lost its effectiveness once it has been circumvented as the quality or level of effectiveness should be governed by the criteria of an average user and not the hacker or the IT expert, however the analysis of the effectiveness of a particular TPM should be left in the hands of case law in light of future innovations in technology.

The Directive 2001/29/EC established a general scheme for the protection of technological measures and rights-management information based on the WIPO Internet Treaties, as such, the Directive 2001/29/EC requests all EU Member States to provide adequate legal protection against the circumvention of effective technological measures, which the person concerned carries out in the knowledge or with reasonable grounds to know that he or she is pursuing that objective (Article 6 no. 1). 

However, the Directive 2001/29/EC, inspired in the DMCA, also evolves from the de minimis protection requested by the WIPO Internet Treaties, and provides protection “against the manufacture, import, distribution, sale, rental, advertisement for sale or rental or possession for commercial purposes of devices, products or components, or the provision of services which” (Article 6 no. 2):

1. are promoted, advertised or marketed for the purpose of circumvention of any effective technological measures (Article 6 no. 2, (a), or
2. have only a limited commercially significant purpose or use other than to circumvent any effective technological measures (Article 6 no. 2, (b), or
3. are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of any effective technological measures (Article 6 no. 2 (c).

Considering that these circumvention devices mostly consist of software applications, the scheme for the technical protection of copyright, is in a position to place some limitations in the creation and marketing of software. As software, in European Law, is regarded as a literary work, it can argued that the TPM legal protection scheme may be represented as a form of censorship on the creation of software.      

Unlike the mere act of circumvention of TPM, the prohibition of these preparatory acts does not require the perpetrator to know or have reasonable ground to know of the illegitimate purpose of the device.

D) Macau’s Copyright and Related Rights Ordinance

The interest in producing a brief analysis of the Macau Special Administrative Region on the subject of the legal protection granted to TPM lies with the fact that MSAR is not a Contracting Party to the WIPO Internet Treaties, and thus not internationally obliged to provide legal protection against the circumvention of Technological Protection Measures or Digital Rights Information as per these international instruments. 

Despite the fact that in 1999 the then enacted Copyright and Related Rights Ordinance complied with all of the MSAR’s international obligations and concurrently provided the necessary response to the modernization needs felt in the copyright discipline, that ordinance did not reflected the contents of the 1996 WIPO Internet Treaties in terms of the new standards of protection provided by both the WCT and WPPT, it became necessary to update the level of protection provided to copyright holder by the domestic legal instruments to those new international standards.  

Nonetheless, the authorities of MSAR, similarly to the members of the 1996 WIPO Diplomatic Conference, having realized that the quick development of digital technology and the internet had not only allowed for the faster and cheaper distribution of copyrighted works, that consequently provided for a broader market for the prosperity of copyright and related rights, but, at the same time, also created a more sinister digital environment where copyright was more fragile and prone to infringement,  and also recognizing the need for national legal systems, as a whole, to provide copyright and related rights holders an adequate protection in the digital environment.

Consequently the MSAR legislator turned to the international experiences for inspiration, namely taking the World Intellectual Property Organization, as the proper forum for the debate of these issues, and heeding to the results of such debate, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, both enacted in Geneva, 20th December 1996.

The need to harmonize resulted primarily from a political will to provide MSAR with a modern copyright system in pair with the most recent legal experiences on an international level, and, although complementary, from the will to create the conditions for a future application of the WIPO Internet Treaties on the Macau Special Administrative Region. 

Consequently, the Copyright and Related Rights Ordinance was amended by the Law no. 5/2012 of 10^th April. 

Relating to the issue under analysis, the legal protection conferred to DRM, the recent amendment recognizes that technological protection measures and digital rights management information, albeit not being per se copyright or related rights, play an important role in the protection of copyright.

Under the amended Copyright and Related Rights Ordinance (CRRO), Chapter III, Section II, technological protection measures are defined as any technology used in the original or copies of the copyrighted work, phonogram or videogram, or in broadcast or in equipment that allows the reproduction of copyrighted works that under normal operation prevents or limits (a) the access, without permission of the right holder to the work, and / or (b) the reception, by any mean, of a broadcast, and / or (c) the unauthorized practice of an act reserved under copyright to the copyright or related rights holder over the work, performance, phonogram, videogram or broadcast (article 214-A CRRO).

The word “technology” is used by the Macau legislator in the broadest sense, intending to cover a set of devices, methods or technological processes, whether they assume the form of hardware or the form of software.

Article 214-A of the CRRO establishes three categories of instruments where technological protection measures can be implemented:

a) TPM used in the original or copies of works, phonograms or videograms protected by copyright or related rights; 

b) TPM that are used in broadcasts; and,

c) TPM used in reproduction equipment.

Although the subheadings a) and c), original or copies of the copyrighted work phonogram or videogram and reproduction equipment, are a commonplace legal solution, the inclusion, or more accurately, the emphasis given by singling out broadcasts in that list was a political decision. The intention of the Macau legislator was to increase the protection granted to TPM used in broadcasts from the protection that would normally be conferred to TPM used in broadcasts protected under the related right to copyright established under Articles 129 to 138 of the CRRO – meaning that it would be included under subheading a) – to a general protection of TPM used in any broadcasts, whether or not that broadcast is protected by a copyright related right.

Following the solutions established in the DMCA and in the Directive 2001/29/EC, the Amended CRRO prohibits both the conduct and the device of circumvention.

The conduct, as the act of circumventing a TPM (as defined in Article 214-A) is a punishable offense when the act involves an economical benefit, i.e. when it is made with a commercial purpose. On the other hand, if the circumvention is made privately, occasionally and without remuneration, the act will not be criminally punishable, albeit subject to civil liability under the general rules of Civil Law. The Macau legislator also criminalized the advertisement or offer to the public, with commercial purposes, of circumvention services, which, as they assume a nature of preparatory acts to the illicit circumvention, are punished, if only, more lightly. Both these crime are qualified as semi-public offenses (Article 214-B no. 3 CRRO). 

As alluded above, the CRRO also punishes as a criminal offense the manufacture, import, export, sale, distribution or rental of any object, device or computer software designed essentially to, or that does not have other relevant use other than to circumvent without authorization technological protection measures (Article 214-C CRRO). The prohibition of the device of circumvention as purportedly established by similarity between the headings of the Article 214-C CRRO “Instrumentos de desactivação ou supressão” (deactivation or suppression tools) and the crime set in Article 263 of the Macau Penal Code “Instrumentos de violação de comunicações”, it was the Macau Legislator intention to envision the former crime as being similar to the latter crime in its nature as an abstract crime of danger or “abstraktes Gefahrdungsdelikt”. By regulating the prohibition of circumvention devices as an abstract crime of danger, and prohibiting the manufacture, import, export, sale, distribution or rental, but not the possession or the technologies themselves, only the use of those technologies in disregard of the Law – the act that is presumed to create the required danger – will be legally relevant, the technologies themselves are not prohibited, nor do they raise per se any legal issue.

The adopted solution, by not restricting the technologies themselves, but for their exclusive purpose as circumvention devices or marginal use outside the illicit purpose, will achieve an effect similar to the “no-mandate” provision of the DMCA. The relevant technologies – normally perceived as computers and consumer electronics – are not required to provide a response for TPM, the danger that realizes the ratio legis of the criminal norm provided by Article 214-C CRRO is not inherently present in the technology (computers and consumer electronics will not be “dangerous” for not looking for TPM), but it is the use of that technology contra legem or the manufacture of contra legem tools that is prohibited that will be presumed to create the relevant danger.      

Consequently to its nature as an abstract crime of danger, and unlike the prohibition on conduct, the criminal offense established under the Article 214-C CRRO, the prohibition on device is a public crime. 

Electronic right management information, under the CRRO, Chapter III, Section III, is defined as all information in electronic format, including any codes or numbers, which is used by the right holder in the original or in copies of the copyrighted work, fixed performance, phonogram or videogram, or broadcast, all of the above protected under copyright, or information presented upon the communication to the public and that serve one or more of the following purposes (a) identify the copyrighted work, the performance, the phonogram, the videogram or the broadcast, and / or (b) identify the author, the broadcasting entity or the holder of any other right over the copyrighted work, fixed performance, phonogram, videogram or broadcast, and / or (c) identify the terms under which the copyrighted work, fixed performance, phonogram, videogram or broadcast may be used (Article 214-E CRRO).

The Macau legislator prohibits and criminal punishes two conducts pertaining the circumvention of electronic rights management information.

On the one hand the circumvention of any electronic rights management information with the intention to infringe or allow, facilitate or hide the infringement of any right granted under copyright. On the other hand the broadcast, communication to the public, distribution, import or to make the original copyrighted work or its copies available to the public, for commercial purposes, with knowledge that the electronic rights management information had been erased or altered without the right holder’s authorization. 

The definition of electronic right management information used in the MSAR legal instrument closely follows the definition used in WIPO Internet Treaties (WCT Article 12(2) and WPPT Article 19(2)).

However, the level of protection granted to electronic rights management information, under the MSAR law is slightly more limited that the level of protection granted by the Directive 2001/29/EC or even that that is warranted by the WIPO Internet Treaties, as the act of, knowingly, circumventing electronic rights management information is not a criminal offense per se, in order to warrant the criminal penalty, the criminal agent must act under a dolus specialis manifested in the will to infringe a right protected under the CRRO. Hence, the ascertainment that the scope of protection usually conferred by electronic rights management information mostly covers the author’s personal rights, and seldom the economic rights, should come at no surprise.   

IV – Conclusion, a Three-tier protection

Since its inception, copyright has protected intellectual works, securing to the author or rights holder the ownership and enjoyment of the work. However, come the turn of the millennium and the ability of copyright as a field of Law that governs the protection of intellectual works, be them literary, artistic or scientific works was challenged by the technological breakthroughs that ushered the Digital Age and the Information Society. Along with new ways to access and enjoy copyrighted works came the added difficulty to exercise control over the copyrighted works made available to the public under these now forms and media.

The copyright industry regained control over the protected works by devising and implementing technological solutions and aids aimed at protecting and managing copyright in the digital environment, generally addressed as Digital Rights Management (DRM). In the same form as the technologies that embodied the various DRM systems provide for an effective exercise of copyright, it should be anticipated that a similar technology may (and will) be applied to defeat or circumvent the technical protection put in place.

That realization lead to the legal protection of those technological aids and barriers employed in the protection and management of copyright. This legislative movement was kicked off in the international theater with the enactment in Geneva, 20th December 1996 of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, and followed by the North American Digital Millennium Copyright Act in 1998 and the European Directive 2001/29/EC in 2001. The significance for copyright in the information society that the legal systems as a whole supply DRM with adequate legal protection lead the Macau Special Administrative Region, albeit not a contracting party to the WIPO Internet Treaties, to revise their copyright ordinance to grant legal protection to technological protection measures (TPM) and electronic rights management information (ERM).

The legal protection granted to DRM in the form of the anti-circumvention provisions raised the issue of defining the object of that protection, what would constitute a TPM or ERM legally protected against circumvention. To attempt to define these devices by means of the technologies employed would prove inadequate in reason of the mutable nature of those technologies. Instead the legislators followed a teleological approach to define which technological measures would be protected by the anti-circumvention provisions.  Thus TPM and ERM inserted with the purpose to provide protection to authors and rights holder under copyright. 

According to Severine Dusollier, the outcome of using technology towards the protection of copyright and further supplying the technological protection a legal protection of its own is the multiplication of the layers of monopoly surrounding the copyrighted works. Currently an intellectual work will be governed by three cumulative tiers of protection. The first tier will correspond to the classical protection granted by copyright and related rights law that supply the author or rights holder with a defined power to control the use of the work. The second tier will correspond to the technological measure implemented in the work, that will further check the use thereof. The legal protection provided the anti-circumvention laws, that protect the technology that embodies the second tier, will correspond to the third tier of protection.

The authors and rights holders now enjoy three levels of protection, Law-Technology-Law over the product of their intellectual work.  

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¹ The invention of the printing press is attributed to the Chinese (c. 600 DC), however the hieroglyphic characters hindered the expansion of that invention both in china and in the eastern world. In Europe, the use of Phoenician alphabet was one of the determining factor for the success of the “Chinese invention of Modern Europe” (see Levinson, Paul. The soft edge: A natural history and future of the information revolution. Routledge, 1997).

² Ghosh, Shubha, et al. “Intellectual Property: Private Rights.” The Public Interest, and the Regulation of Creative Activity (2007), pp. 810.

³ Albeit the term Piracy is more closely connected with high-seas robbery and kidnaping, historically the term has been used in relation to acts which were later codified as types of copyright infringement. “Theft” is also another term colloquially associated with copyright infringement.

⁴ By legislative option software is protected as a literary work, (in MSAR, see Article 2, no. 1 subheading a) Copyright and Related Rights Ordinance), although the lack of a legal definition on what constitutes software makes the issue of the protection of software by copyright no less controversial (Leitão, Luís Manuel Teles de Menezes, Direitos de Autor, Almedina (2011) pp. 96)  

5 From the Latin “plagiarius”. In reality “Lex Fabia ex plagiariis” concerned the theft of pregnant slaves and animals, application to copyright began with the interpretation by the Irish King Dermott “to every cow her calf, and consequently to every book its copy”.

 ⁶ “Corpus Iuris Civilis”, Mommsen and Krueger Edition

⁷ Such as paper, vinyl, magnetic tape and optical disc.

⁸ As Rui Bebiano (see Bebiano, Rui, “A Biblioteca Errante: Itinerários da Leitura na era digital”. O Livro e a Leitura, RHI 1999, pp. 473) notes, between the publication of Mainz Psalter in 1457, printed using a moveable type press, until 1500 about 15 million copies were produced in the European presses at a ratio of 1,300 copies per day.

⁹ Ghosh, Shubha, et al. “Intellectual Property: Private Rights.” The Public Interest, and the Regulation of Creative Activity (2007), pp.810

¹⁰ Ghosh, Shubha, et al. “Intellectual Property: Private Rights.” The Public Interest, and the Regulation of Creative Activity (2007), pp.  811

¹¹ Ghosh, Shubha, et al. “Intellectual Property: Private Rights.” The Public Interest, and the Regulation of Creative Activity (2007), pp.808.

¹² Prior to Napster (June 1999), there existed already networks which allowed the distribution of works over the internet, but it was the work of Shawn Fanning, John Fanning and Sean Parker that carved the path that would be followed, and still is, by other P2P systems like Gnutella, KaZaA, Grokster, eDonkey and bitTorrent, only to name the more (in)famous offenders. 

¹³ Clark, Charles. The Answer to the Machine is in the Machine. The future of copyright in a digital environment, 1996, 139.

¹⁴ Samuelson, Pamela, “Technological protection for copyrighted works”, available at http://people.ischool.berkeley.edu/~pam/courses/cyberlaw97/docs/techpro.pdf , p. 1  

¹⁵ Leitão, Luís Manuel Teles de Meneses, Direito de Autor, Almedina, 2011, p. 364.

¹⁶ Dusollier, Séverine, “DRM at the intersection of copyright and technology: a case study for regulation”, Governance, Regulations and Powers on the Internet, Cambridge University Press, 2012, p. 3.

¹⁷ For the purposes of this research paper, we will use the Digital Rights Management (DRM) terminology when referring generally to Technological Protection Measures (TPM) and Electronic Rights Management Information (ERM). However the central focus of analysis will point towards the TPM models, vastly due to the difference in the scopes of protection regarding copyright that offered by TPM when compared to ERM.

¹⁸ Betchold, Stefan, “Digital Rights Management: Between Author Protection and the Protection of Innovation”, “E-Merging Media” p. 331.

¹⁹ Pereira, Alexandre Libório Dias, Direitos de Autor e Liberdade de Informação, Almedina, Coimbra 2008, p. 623.

²⁰ Ghosh, Shubha, et al. “Intellectual Property: Private Rights.” The Public Interest, and the Regulation of Creative Activity (2007), pp.888

²¹ Digital technology being a recent technology bears a relative concept of “old”. “Spiradisc” was one of the earliest of these type of devices was implemented by Sierra Entertainment Inc. (formerly On-Line Systems) on their floppy-discs releases for the Apple II, can be traced back to the early 1980’s.  

²² Dusollier, Severine. “Electrifying the fence: the legal protection of technological measures for protecting copyright.” European Intellectual Property Review 21 (1999): pp. 285-297.

²³ Bechtold, Stefan. “Digital Rights Management: Between Author Protection and the Protection of Innovation.” E-merging media [electronic resource]: communication and the media economy of the future (2005): pp. 332

²⁴ A notable example is the videogame “Game Dev Tycoon” released by Greenheart Games Pty. Ltd. In December 2012. The purpose of this simulation game is to manage a video game studio, players using a pirated copy of this game would enjoy the game normally for a certain amount of hours, playing and growing their video game studio until the games they created in their virtual company began to be pirated at a scale that quickly lead to the bankruptcy of their virtual video game company. (see Good, Owen, “A Video Game in Which You Make Video Games Fights Pirates with Piracy”, Kotaku 29/04/2013 http://kotaku.com/a-video-game-in-which-you-make-video-games-fights-pirat-484327325 last visited on 31/08/2013)  

²⁵ As we will see further on this will also be the approach used by the international and national legislator to grant legal protection to technological measure of protection (TMP) and electronic rights management information (ERM).

²⁶ Enacted in Geneva, 20th December 1996, and entered into force in 2002, 6th March. 

²⁷ The Berne convention for the Protection of Literary and Artistic Works of September 9, 1886

²⁸ Enacted in Geneva, 20th December 1996, and entered into force in 2002, 20th May.

²⁹ Koelman, Kamiel J., and Natali Helberger. “The Protection of Technological Measures.” Copyright and Electronic Commerce. Legal Aspects of Electronic of Electronic Copyright Management (2000): 165-228.

³⁰ A medium were the work will be imprinted.

³¹ The rights management information, such as CIS (Common Information System) developed by the CISAC «http://www.cisac.org» or DOI (Digital Object Identifier) developed by the Association of Publishers «http://www.doi.org», enables a proper identification of the work, the author of the work, the owner of any right in the work, or provides information about the terms and conditions of use of the work, serving for the most part an identification function.

³² As the work is an expression of the author’s personality, as the product of his freedom of cultural creation, the personal link between the work and the author are worthy of protection. The moral rights provide that protection to the honor and reputation of the author by securing the identification of authorship, authenticity and integrity of the work and preventing acts of modification, mutilation or destruction of that creation (v. Dias Pereira pp. 480). The moral rights are independent from the economic rights, and are inalienable, irrevocable and indispensable (v. article 41 CDADC Macau).

³³ This particular scope of protection, according to Menezes Leitão, is the reason why TPM which focus on this protection are so rare. (see Leitão, Luís Manuel Teles de Meneses, Direito de Autor, Almedina, 2011 pp. 367)

³⁴ Namely paid on-line distribution of copyrighted contents.

³⁵ Bechtold, Stefan. “Digital Rights Management: Between Author Protection and the Protection of Innovation.” E-merging media [electronic resource]: communication and the media economy of the future (2005): pp. 333.

³⁶ “Building a technical fence around works was not considered as sufficient. Electrifying it by criminalizing its circumvention was needed.” Dusollier, Severine. “Electrifying the fence: the legal protection of technological measures for protecting copyright.” European Intellectual Property Review 21 (1999): pp. 285.

³⁷ Speaking solely of software, despite many other trends in the videogame industry which are financially promising (online subscriptions, freemium games and games for mobile phones) revenue from software sales reached USD$55.5 billion in 2010, ahead of the music industry, but lagging behind the filmed entertainment industry (Egenfeldt-Nielsen, Simon, Jonas Heide Smith, and Susana Pajares Tosca. Understanding video games: The essential introduction. Routledge, 2013, pp. 16).

³⁸ Sony Computer Entertainment v Owen, EMLR 34 (2002).

³⁹ Sony v Ball, FSR (9) 159, (2005).

⁴⁰ Sony Computer Entertainment America, Inc. v. Divineo, Inc., 457 F.Supp.2d 957, N.D.Cal. 2006, September 11, 2006.

⁴¹ For the case details and the applications submitted by the parties: http://ia700401.us.archive.org/35/items/gov.uscourts.cand.235965/gov.uscourts.cand.235965.docket.html last accessed on 03.08.2013.

⁴² Leitão, Luís Manuel Teles de Meneses, Direito de Autor, Almedina, 2011 pp. 59

⁴³ Dusollier, Séverine, “DRM at the intersection of copyright and technology: a case study for regulation”, Governance, Regulations and Powers on the Internet, Cambridge University Press, 2012 pp. 299.

⁴⁴ As 28th July the WTC has 90 Contracting Parties [http://www.wipo.int/wipolex/en/wipo_treaties/parties.jsp?treaty_id=16&group_id=1], and as of the same date, the WPPT has 91 Contracting Parties [http://www.wipo.int/wipolex/en/wipo_treaties/parties.jsp?treaty_id=20&group_id=1]. 

⁴⁵ Article 11 of the WIPO Copyright Treaty, the counterpart in the WPPT, article 18, uses a similar wording to convey its obligations regarding measures used by performers or producers of phonograms in connection with the exercise of their rights under the Treaty. 

⁴⁶ Leitão, Luís Manuel Teles de Meneses, Direito de Autor, Almedina, 2011 pp. 368

47 Marks, Dean S., and Bruce H. Turnbull. “Technical protection measures: The intersection of technology, law and commercial licenses.” J. Copyright Soc’y USA 46 (1998): 563.

⁴⁸ Leitão, Luís Manuel Teles de Meneses, Direito de Autor, Almedina, 2011 pp. 368.

⁴⁹ See Article 12 of the WCT and article 19 of the WPPT

⁵⁰ The DMCA, enacted on October 28, 1998, amended Title 17 (Copyright) of the United States Code by adding a new Chapter 12 (Copyright Protection and Management Systems). 

⁵¹ Published in the Official Journal of the European Communities, L 167, Volume 44, 22.06.2001, pp. 10-19.

⁵² National Execution Measures communicated by the Member States concerning the Directive 2001/29/EC (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:72001L0029:EN:NOT), last visited on 31.07.2013.

⁵³ 17 USC § 1201 – Circumvention of copyright protection systems – (a) Violations Regarding Circumvention of Technological Measures – (1) (A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

⁵⁴ 17 USC § 1201 – Circumvention of copyright protection systems – (b) Additional Violations – (1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that – (A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.

⁵⁵ 17 USC §1201 (a) (2).

⁵⁶ 17 USC §1201 (a) (2), (A), (B) and (C).

⁵⁷ 17 USC §1201 (b) (1), (A), (B) and (C).

⁵⁸ Reese, R. Anthony. “Will merging access controls and rights controls undermine the structure of anticircumvention law.” Berkeley Tech. LJ 18 (2003): 623

⁵⁹ 17 USC §1201 (a) (1), (A).

⁶⁰ U.S. Copyright Office summary of the Digital Millennium Copyright Act, pp. 4 (available at http://www.copyright.gov/legislation/dmca.pdf) 

⁶¹ Ginsburg, Jane C., From Having Copies to Experiencing Works: the Development of an Access Right in U.S. Copyright Law. Journal of the Copyright Society of the USA, Vol. 50, 2003.

⁶² The only limitation to the means how access to a work may be controlled is the technological state-of-the-art or, as demonstrated by the recent reversal of the Microsoft Xbox One DRM policy, public outcry (http://news.xbox.com/2013/06/update last accessed on 02.08.2013) 

⁶³ Ginsburg, Jane C., From Having Copies to Experiencing Works: the Development of an Access Right in U.S. Copyright Law. Journal of the Copyright Society of the USA, Vol. 50, , 2003 pp. 120

⁶⁴ 17 USC §1201 (a) (2), (A), (B) and (C) and 17 USC §1201 (b) (1), (A), (B) and (C).

⁶⁵ Hayes, David L. “INTERNET COPYRIGHT: ADVANCED COPYRIGHT ISSUES ON THE INTERNET—PART III.” Computer Law & Security Review 17.2 (2001): 75-91.

⁶⁶ Marks, Dean S., and Bruce H. Turnbull. “Technical protection measures: The intersection of technology, law and commercial licenses.” J. Copyright Soc’y USA 46 (1998): 563.

⁶⁷ Leitão, Luís Manuel Teles de Meneses, Direito de Autor, Almedina, 2011 pp. 368

⁶⁸ Marks, Dean S., and Bruce H. Turnbull. “Technical protection measures: The intersection of technology, law and commercial licenses.” J. Copyright Soc’y USA 46 (1998): 563.

⁶⁹ Young, David M. “CONGRESS MODIFIES COPYRIGHT PROTECTIONS FOR THE DIGITAL AGE.” WORLD AFFAIRS 104 (1997): pp. 2.

⁷⁰ European Commission. “Green paper on copyright and the challenge of technology: Copyright issues requiring immediate attention.” COM (88) 172 (1988).

⁷¹ Published in the Official Journal of the European Communities, L 122, 17.05.1991, pp. 42-46.

⁷² Pereira, Alexandre Libório Dias, Direitos de Autor e Liberdade de Informação, Almedina, Coimbra 2008 pp. 628.

⁷³ It should be noted that the Directive 91/250/EEC was not replaced by the Directive 2001/29/EC, in accordance with the latter Directive preamble it should not apply to the protection of technological measures used in connection with computer programs, which is exclusively addressed in the first Directive (Whereas no. 50).

⁷⁴ Pereira, Alexandre Libório Dias, Direitos de Autor e Liberdade de Informação, Almedina, Coimbra 2008, pp. 629

⁷⁵ Pereira, Alexandre Libório Dias, Direitos de Autor e Liberdade de Informação, Almedina, Coimbra 2008, pp. 629

⁷⁶ Chapter III of the Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, published in the Official Journal of the European Communities, L 77, 27.3.1996, p. 20–28.

⁷⁷ One example will be the recent technique developed by investigators in the Fraunhofer Institute which introduces minute changes in the content of an electronic book which do not alter the spirit of the text but make each copy to be a unique copy of the copyrighted work. This would allow the identification of the person responsible for a copy illegally made available on the internet and as such be used as deterrent for copyright infringements.

⁷⁸ The notion of effectiveness also implicitly brings alongside an access right (similar to the one established by the DMCA) see Dias Pereira, pp. 630.   

⁷⁹ Pereira, Alexandre Libório Dias, Direitos de Autor e Liberdade de Informação, Almedina, Coimbra 2008, pp. 630.

⁸⁰ Leitão, Luís Manuel Teles de Meneses, Direito de Autor, Almedina, 2011, pp. 369

⁸¹ Article 1 no. 1 of the Directive 91/250/EEC. 

⁸² Pereira, Alexandre Libório Dias, Direitos de Autor e Liberdade de Informação, Almedina, Coimbra 2008, pp. 631

⁸³ Tritton, Guy, et al. “Intellectual property in Europe, 2008 Thomson.” (2008).

⁸⁴ In accordance with the Article 138 no. 1 of the Basic Law of Macau SAR, the People’s Republic of China has decided that both the WCT and the WPPT shall not be applied to the territory, which was not the case with the neighboring Hong Kong SAR, where both Treaties shall be applied with effect from October 1^st 2008.

⁸⁵ Enacted by the Decree-Law no. 43/99/M of 16^th August, published in Boletim Oficial n.º 33, Iª Série, in 16^th August 1999, pp. 2890.

⁸⁶ Preamble of the Decree-Law no. 43/99/M, of 16^th August

⁸⁷ In the Explanatory Note of the Draft Law no. PPL/11/2010/IV on the Amendment to the Copyright and Related Rights Ordinance the raison d’ etre for this need to update laid with the MSAR Government intention to have these international instruments – WCT and WPPT – fully applicable in the Macau Special Administrative Region. This reasoning was not supported by the 3^rd Permanent Commission of the MSAR Legislative Assembly in their Opinion no. 1/IV/2012, who state that the WIPO Internet Treaties “não são aplicáveis a Macau, não resultando deles quaisquer obrigações internacionais para a RAEM”.

⁸⁸ Opinion no. 1/IV/2012 by the 3rd Permanent Commission of the MSAR Legislative Assembly, pp. 5

⁸⁹ Recommendations issued by the GBDe in Paris in September 1999 with respect to intellectual property

⁹⁰ Opinion no. 1/IV/2012 by the 3^rd Permanent Commission of the MSAR Legislative Assembly, pp. 9

⁹¹ Opinion no. 1/IV/2012 by the 3^rd Permanent Commission of the MSAR Legislative Assembly, pp. 9

⁹² Published in Boletim Oficial n.º 15, Iª Série, in 10^th April 2012, pp. 310-388. 

⁹³ Opinion no. 1/IV/2012 by the 3rd Permanent Commission of the MSAR Legislative Assembly, pp. 12

⁹⁴ Opinion no. 1/IV/2012 by the 3rd Permanent Commission of the MSAR Legislative Assembly, pp. 33

⁹⁵ Opinion no. 1/IV/2012 by the 3rd Permanent Commission of the MSAR Legislative Assembly, pp. 35

⁹⁶ Opinion no. 1/IV/2012 by the 3rd Permanent Commission of the MSAR Legislative Assembly, pp. 35. TPM used in broadcast will always be protected, and the circumvention of those TPM will constitute a semi-public crime (Article 214-B).

⁹⁷ A crime punishable by imprisonment up to two years or a fine calculated up to 240 days (Article 214-B no. 1 CRRO).

⁹⁸ “De forma privada, ocasional e sem remuneração”, the expression used by the 3rd Permanent Commission of the MSAR Legislative Assembly in the quoted Opinion no. 1/IV/2012 at pp. 36, provides an insight into what should constitute the economic benefit or commercial purpose that criminalize the conduct.    

⁹⁹ Pursuant to Article 477 of the Macau Civil Code, for tort, or Article 787 of the Macau Civil Code for contractual default.

¹⁰⁰ A crime punishable by imprisonment up to one year or a fine calculated up to 120 days (Article 214-B no. 2 CRRO).

¹⁰¹ In accordance with Macau Penal Law, criminal offenses assume the nature of Public Crimes, Semi-public Crimes or Private Crimes, depending with whom lies the power to initiate a criminal procedure. If it is a public crime (i.e. homicide, punishable under Article 128 of the Macau Penal Code), the Public Prosecutor may initiate the criminal proceedings upon notice by the judiciary or police authorities or complaint by any person. If it is a Semi-Public Crime (such as the Circumvention of a Technological Protection Measure or Theft punishable under Article 197 of the Macau Penal Code), then in order for the criminal proceedings may be initiated a complaint must be filed by the person with the capacity to do so (Article 105 of the Macau Penal Code), if the complaint is dropped, the criminal procedures cannot continue. Finally, if it is a Private Crime (a normal example are the crimes against honor punishable under Articles 174 et. Al. of the Macau Penal Code) the criminal procedure is dependent of the injured party’s request to be appointed as “Assistente” to the proceedings and the timely submission of the private accusation by the “Assistente”.  

¹⁰² Punishable with imprisionment up to two years or a fine calculated up to 240 days (Article 214-C CRRO).

¹⁰³ Opinion no. 1/IV/2012 by the 3rd Permanent Commission of the MSAR Legislative Assembly, pp. 37

¹⁰⁴ For all intents and purposes, the idea or objective of deactivating or suppressing a TPM is to circumvent it, also, the word used in the Portuguese Código do Direito de Autor e dos Direitos Conexos is “neutralizar” literally translated into neutralize, once again the prevailing sense is to circumvent the technological protection measure. 

¹⁰⁵ “Crime de perigo abstracto”, abstract crime of danger or “abstraktes Gefahrdungsdelikt” describes a type of criminal offense where the danger to a legal property, rather the damage to a legal property is persecuted, but where that danger is the ratio legis rather than an element of the crime (see Costa, José de Faria, Comentário Conimbricense do Código Penal, Tomo II, pp. 866 ss). There is a conclusive presumption that the doing of the act itself creates the required danger, as such punishability will operate regardless of whether the act created any danger or not (see Binavince, Emilio S. “Crimes of Danger.” Wayne L. Rev. 15 (1968): 683.)  

¹⁰⁶ Opinion no. 1/IV/2012 by the 3rd Permanent Commission of the MSAR Legislative Assembly, pp. 37

¹⁰⁷ 17 USC §1201 (c), (3).

¹⁰⁸ This option is explained by the clear perception that the distribution of the tools for circumvention of TPM carry a greater potential to harm copyright than the individual act of circumvention (See Note 69 above). 

¹⁰⁹ Article 214-F, no. 1 CRRO, a criminal offense punishable with imprisonment up to one year or with a fine calculated up to 120 days.

¹¹⁰ Article 214-F, no. 2 CRRO, a criminal offense punishable with imprisonment up to two years or with a fine calculates up to 240 days. The raison d’ etre of the harsher punishment lies with the fact that this conduct is more damaging to the author’s right than the mere individual circumvention.

¹¹¹ Opinion no.1/IV/2012 by the 3rd Permanent Commission of the MSAR Legislative Assembly, pp. 38.

¹¹² Dusollier, Séverine, “DRM at the intersection of copyright and technology: a case study for regulation”, Governance, Regulations and Powers on the Internet, Cambridge University Press, 2012, pp. 4

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