RESOURCE(S)
INTRODUCTION
Concurrent with copyright’s foray into the digital environment is a reliance on technical means of protecting works or “technological protection measures” (TPMs). With marginal costs of copying near zero and the relative ease of reproduction and distribution online, rightsholders have since the mid-1990s been engaged in an arms race to suppress the perceived threat of digital technologies in various ways. Key in this battle has been the reliance on TPMs that monitor and enforce polices set by rightsholders. Supplementary to the exclusive rights guaranteed by copyright law, TPMs are tools that technologically enforce copyright (along with private contractual terms) in association with digital works.
The proliferation of TPMs has also produced numerous externalities, however. In certain instances, TPMs can restrict access and use of copyright works even when the purpose of that access or use is in furtherance of an exception or limitation to copyright. Similarly, TPMs may prevent public domain works from being freely accessed or may prevent non-infringing uses of works as part of analytical processes such as text and data mining (TDM), which may only incidentally touch upon exclusive rights. In other instances, the liability risks involved in circumventing TPMs can restrict activities that are entirely unrelated to copyright, including activities like reverse engineering, security research, and the repair of software-dependent devices.
TPMs therefore allow rightsholders to grant or deny access to information on a relatively individual or privately determined basis, often without regard to lawfully permitted uses or access to works. To an extent, TPMs can be regarded as tools for enforcing contractual override through technologically imposed restrictions. In all, the “public good” nature of information and the near zero marginal costs for rightsholders to invoke and assert TPMs has culminated in legitimate cause for concern about their widespread use and reliance, particularly in relation to digital content that is important for public knowledge, research, and education. These concerns over TPM overreach warrant a deeper look into their prevalence, status, and impacts.
In furtherance of the need for a deeper understanding, this report is the first of three analyses focusing on the impacts of TPMs on research, education, and preservation. The purpose of this report is to provide an overview of the legal status of technological protection measures in the law of select European and comparator jurisdictions, including a brief history and typology of TPMs and their relationship to copyright and related right exceptions. To this end, the primary focus of this report is centred on a doctrinal and comparative analysis of TPMs, including the scope of protections afforded to rightsholders and the applicability of exceptions and limitations to copyright and related rights.
KEY TAKEAWAYS
1. The Information Society Directive’s Article 6(4) should be amended to include all research-related copyright exceptions, including the temporary copying exception in Article 5(1) and the quotation right in Article 5(3)(d). This would ensure that the permitted grounds of TPM circumvention would extend to all research-related exceptions to copyright. This recommendation is consistent with the legal proposals put forward by the DG RTD Report;
2. EU Member States should implement all non-mandatory exceptions to copyright that relate to research and education, including Articles 5(1) and 5(3)(d) of the Information Society Directive as noted above. This would further reinforce the efficacy of recommendation (1) above;
3. European jurisdictions should adopt a broad and purposive interpretation of taking “appropriate measures” to ensure that rightsholders give effect to copyright exceptions by expanding the scope of permitted circumvention to include so-called “preparatory acts”, including offering circumvention services and the sale, distribution, or manufacture of circumvention tools. Relying on rightsholders to take action to facilitate access to TPM-protected works is insufficient, even at the behest of an administrative tribunal or complaint body. Technical knowledge, expertise, and capability should be diffused throughout research communities and related organisations across Europe to give practical effect to the guarantees provided by research exceptions in various Directives;
4. Drawing upon the New Zealand and Singaporean approaches, and consistent with recommendation (3) above, EU Member States should, as furtherance of their “appropriate measures”, empower research organisations and institutions (such as libraries) to facilitate circumvention of TPMs for lawful purposes on behalf of users and researchers; and
5. With only a few exceptions, EU Member States should impose clearer and shorter timelines in relation to rightsholders’ obligation to provide the means of accessing TPM protected works in furtherance of an exception or limitation to copyright. Empowering research organisations and institutions to facilitate circumvention may fall short of a comprehensive solution, particularly where TPMs are novel or emerging technologies for which there are no commonly known circumvention techniques. In these cases, there must remain a procedure by which rightsholders can be compelled to provide the means of circumvention to give effect to exceptions and limitations. These procedures must be accompanied by teeth. Namely, tasking administrative bodies to effectively and efficiently resolve complaints and disputes arising from rightsholders’ failure to comply with these timelines, and the ability to prescribe penalties and remedies.
WEBINAR
AUTHOR(S)
