Implementation of DRM Systems under the EU Legal Framework

Abstract

Digital Rights Management (“DRM”) systems face the task of reflecting different, sometimes diverging interests, including those of authors and creators of works protected by copyrights, end users seeking access to such works and their own interests. While authors have an interest in establishing licensing policies and in tracking the use of their (licensed) works on the internet on the basis of DRM systems in order to ensure revenue streams in return for providing access and to prevent illegal copying of their works (including piracy), operators of DRM systems may have an interest to process data on usage pattern of customers for marketing purposes and to tie in customers into their own content distribution chains rather than providing for interoperability with other DRM system operators or content providers. By contrast, end users are concerned that DRM systems intrude into their privacy, that DRM may unduly restrict access to content where the provision of access is mandatory by law and that DRM systems are not interoperable. In a broad brush overview, it will be highlighted how provisions under EU laws reflect such different concerns and how those provisions determine the framework within which DRM systems must operate. In particular, the article highlights relevant provisions included in EU Directives on data protection as well as relevant provisions in EU copyright Directives addressing the protection of copyrighted works and of Rights Management Information against unauthorized access. The extent to which DRM must cater for access to content where copyright is limited by national laws of EU Member States will be discussed. The article will further highlight where and to which extent EU laws provide DRM operators with the freedom to take the initiative in shaping DRM systems further and where they leave open questions. Against the background of recent case law, it will further address whether EU competition laws can have an impact on enforcing interoperability. It will suggest practical approaches as to how DRM can provide viable solutions for copyright owners and DRM operators while catering for customer concerns. It will briefly point at the actual and potential impact that an increasing success of DRM will have on the position of Collective Rights Management Societies and on existing systems of copyright levies imposed on technical devices involved in the process of copying content.