Can hyperlinks and digital rights management secure affordable access to information?

Abstract

Digital Rights Management Systems (DRMs) related control mechanism, which are analogous to and augment the exclusive rights, have been the subject of debate since the early 1980s. DRMs, which function like an electronic security guard that ‘never leaves its post, never takes a break and never sleeps,11Cameron, Alex, Digital Rights Management: Where Copyright and Privacy Collide (2004) 2 Canadian Privacy Law Review 14, p. 17. can invade the privacy of individuals, prevent competition and/or control access to a work that is not or is no longer copyright protected. Hyperlinks are citations of an electronic address, but when clicked they navigate the user to the source of further information, including codes circumventing DRMs. This article accepts that the excesses of DRMs can outreach copyright and/or contract law, but argues that DRMs provide an opportunity for innovative business models, which can both protect digital works and promote free use of hyperlinks. Part 1 outlines the background and legislative provisions related to DRMs. It contrasts the WIPO Copyright Treaty (WCT) 1996,22The WCT, (and the WIPO Performances and Phonograms Treaty – WPPT, containing similar provisions), are available at http://www.wipo.int/treaties/en/ [22/04/2012]. Articles 11 and 12, with corresponding provisions found in the implementing legislation of the US Digital Millennium Copyright Act (DMCA) 1998,33Digital Millennium Copyright Act, 1998 at http://copyright.gov/legislation/hr2281.pdf [18/04/2012]. and the EU Copyright Directive (EUCD) 2001.44[Copyright] Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, Official Journal L 167, 22/06/2001 P. 0010–0019. It also examines the intellectual property aspects of the Trans-Pacific Partnership (TPP) and Europe's Anti-counterfeiting Trade Agreement (ACTA).55The TPP, also known as the Trans-Pacific Strategic Economic Partnership Agreement, which came into effect on 28 May 2006 and was initially between Singapore, New Zealand, Chile and Brunei is currently negotiated by other countries in the region including Australia, Canada, Japan and United States; negotiations are conducted in secret and the text is not publicly available.ACTA is between the EU and Australia, Canada, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the US and is available at http://register.consilium.europa.eu/pdf/en/11/st12/st12196.en11.pdf [26/6/2012]. Part 2 debates opposing academic opinion and comments on case law relating to DRMs, including the use of hyperlinks as a way of trafficking circumvention technology and/or facilitating unauthorised access to a copyright work. It assesses the extent to which DRMs might inhibits the development of new products, prevents competition, or invades the privacy of individuals, and points to the opportunities a consumer group-rightholder negotiated model end user licence can offer. Part 3 concludes that DRMs bolsters the clutches of the rightholder, but reduce unauthorised access to information thus minimising revenue loss, which can make hyperlinked ‘consumer’ access to information ‘affordable,’ or even free.