4.0/Technical protection measures

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This page presented an issue for consideration in the CC license suite 4.0 versioning process. The discussions have now concluded with the publication of the 4.0 licenses, and the information on this page is now kept as an archive of previous discussions. The primary forum for issues relating to the 4.0 versioning process was the CC license discuss email list. You may subscribe to contribute to any continuing post-launch discussions, such as those surrounding compatibility and license translation. The wiki has been populated with links to relevant email threads from the mailing list where applicable, and other topics for discussion were raised in the 4.0/Sandbox. See the 4.0 page for more about the process.

In Version 3.0, there is TPM language in 4(a) and similar in 4(b) in the SA licenses:

You may not impose any effective technological measures on the Work that restrict the ability of a recipient of the Work from You to exercise the rights granted to that recipient under the terms of the License.

This has been controversial for a long time, potentially unnecessarily (and paradoxically, given anti-DRM clause meant to protect) limiting users' freedoms and complicating use of CC-licensed material in widely used platforms that have DRM built in. The addition of a "parallel distribution" (of non-TPM version) was discussed for Version 3#DRM, but decided against.

Some think a more elegant, freedom-compatible approach is to be found in GPLv3:

3. Protecting Users' Legal Rights From Anti-Circumvention Law.
No covered work shall be deemed part of an effective technological measure under any applicable law fulfilling obligations under article 11 of the WIPO copyright treaty adopted on 20 December 1996, or similar laws prohibiting or restricting circumvention of such measures.
When you convey a covered work, you waive any legal power to forbid circumvention of technological measures to the extent such circumvention is effected by exercising rights under this License with respect to the covered work, and you disclaim any intention to limit operation or modification of the work as a means of enforcing, against the work's users, your or third parties' legal rights to forbid circumvention of technological measures.

See explanation and summary of some discussions leading to this clause in the GPL here.

Proposals for 4.0

For ease of reference on discussion lists, please do not alter proposal numbers.

TPM Proposal No. 1: Drop prohibition of effective technical protection measures, add permission to circumvent, possibly using GPLv3's well vetted language as closely as possible.

  • Pros: Compared to parallel distribution obligation, or any other that requires proactive step, this type of clause makes license compliance easier.
  • Cons: Some, if not many, TPMs are simply not easy to circumvent for lay people. Circumvention is difficult when sales of devices for circumvention is legally prohibited. (In Japan, such sales, manufacturing, and other acts related to circmvention device are a crime punishable up to 3 years in prison, etc., according to Art.120bis of Japanese copyright law). Under this kind of legal circumstance, the permission may become not very effective.
  • Other comments: Art.3 of GPLv3 "Protecting Users' Legal Rights From Anti-Circumvention Law." is presumably what this proposal is referring to.
    • Strictly speaking, prohibition of effective TPM is not mutually exclusive of permission of circumvention. For example, a video game program under this license could be technically protected by a TPM, but the license would allow circumvention, and the license could still prohibit any TPM for any copy or redistribution of the work.

TPM Proposal No. 2: Allow parallel distribution in place of total TPM prohibition.

  • Pros: Allow copying of a digital image under CC-BY into a TV program. CC Japan receives inquiries about this type of usage monthly, if not more frequently. But all terrestrial digital TV broadcasting is protected by a TPM so one of the points in our answers is "you cannot use the image without creating adaptation, (or find a way not to impose TPM for the segment)" When the image is CC-BY-ND, it is impossible to comply.
  • Cons: It was received negatively by CC's affilate teams around the world. Please see Version_3#DRM.
    • One might characterize this as a problematic compromise in the fight for freedom/ against DRMs.
  • Other comments: This conflict between the anti-TPM clause and digital TV was raised in 2008 Summit's Legal Day. At the time, the problem was expected but somewhat theoretical. Now that all terrestrial TV broadcasting became digital-only for most of Japan, it is real. Some at the time pointed out that TPM would not be sustainable so we could simply wait and the TPM would disappear. That prediction is not right so far.
    • I heard from an industry source that not imposing a TPM for Japanese terrestrial broadcasting is technically possible, but practically impossible.

Please add other TPM proposals here, and number them sequentially.

Related debate

We encourage you to sign up for the license discussion mailing list, where we will be debating this and other 4.0 proposals. HQ will provide links to related email threads from the license discussion mailing list here.

  • DRM proposals for 4.0 are also discussed here.

Relevant references

Please add citations that ought inform this 4.0 issue below.