A brief overview of the exemptions to the prohibition on circumvention of technological protection measures under the DMCA: any similar exemptions under the UAE legislation?

ABSTRACT

This study investigates the concept of technological protection measures (hereinafter referred to as TPMs), and the conditions required for the TPM, in addition to the levels of TPM under the UAE, US legislation and WIPO treaties. We explored the legitimate reasons for circumventing TPM under the Digital Millennium Copyright Act (hereinafter referred to as DMCA), and whether such exceptions are presented under the UAE legislation. We concluded that the UAE Copyright and Related Rights did not include specific exceptions that allow circumventing TPMs.

KEYWORDS:

• Circumvention
• technological protection measures
• UAE
• Digital Millennium Copyright Act
• WIPO treaties

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Article 38 of the UAE Federal Law No. 7 of 2002 amended by Law No. 32 of 2006 regarding Copyright and Related Rights states that:

“Without prejudice to any severer penalty provided for in any other law, a penalty of imprisonment for a minimum period of three months and a fine amounting to AED 50.000 at least and AED 500.000 at most shall be imposed upon any person committing any of the following acts:

1. Unduly manufacturing or importing, for the purpose of sale, rental or circulation, any counterfeited work or copies thereof, any apparatuses, equipment, devices or materials specially designed or prepared for defrauding protection or technology used by the author or holder of related right for transmitting, offering for circulation, regulating or managing such rights; or preserving a specific standard of purity of the copies.

2. Unduly disrupting or impairing any technical protection or electronic data aiming at regulating and managing the rights prescribed by this Law.

3. Downloading or storing in the computer any copy of the computer program or applications thereof or databases, without obtaining a license from the author or right holder or successors thereof.

   In case of recurrence, the penalty shall be imprisonment for a minimum period of nine months and a fine amounting to AED 200.000 at least”.

   See a case handled in Ajman (UAE), in which the infringers had developed decoders which were programed to be connected with external servers out of the UAE, and were used to record and store specific TV programs/ shows and upon connecting the decoders with the internet, external servers were allowed to share those TV programs/shows with the decoders in the UAE and broadcast the content to the decoders via the internet. (Al Azzeh 2016) Co. https://www.tamimi.com/law-update-articles/copyright-violation-can-lead-to-deportation-from-the-uae/#sthash.UE0v0KJB.dpuf

2 UAE is a member of the WCT since April 14, 2004, and US signature since April 12, 1997.

3 UAE is a member of the WPPT since March 9, 2005, and US signature since April 12, 1997.

4 U.S. District Court for the Northern District of California - 48 F. Supp. 2d 1212 (N.D. Cal. 1999) April 20, 1999.

5 Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974).

6 Atari Games Corp. and Tengen, Inc., Plaintiffs-appellants, v. Nintendo of America Inc. and Nintendo Co., Ltd., Defendants-appellees, 975 F.2d 832 (Fed. Cir. 1992). See regarding reverse engineering: Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992) ; Bowers v. Baystate Technologies, 320 F.3d 1317 (Fed. Cir. 2003).