Abstract
The increased ability to copy and distribute information, knowledge, and entertainment in the digitally networked age has provoked a series of responses. In order to gain back control, copyright holders have made use of so-called technological protection measures (TPM) - including, for instance, Digital Rights Management (DRM) schemes - that are aimed at regulating the copying, distribution, and use of and access to digital works through code (code is law). Activists, in turn, have immediately taken counter-measures and designed tools that enable the hacking of technological protection measures such as copy and access controls. In response, law makers at both the international and national level have enacted legal provisions aimed at banning the act of circumvention of TPM on the one hand and the production and dissemination of circumvention tools on the other hand. Prominent examples of such legislation, among others, are the WIPO Internet Treaties (WCT art. 11 and WPPT art. 18), the Digital Millennium Copyright Act (DMCA sec. 1201), the European Copyright Directive (EUCD, art. 6 and art. 8), and the respective implementations of the EUCD into the laws of EU Member States. Against this backdrop, this paper takes it as its baseline that many countries have already enacted legislation or will soon legislate on TPM in order to comply either with international obligations under WIPO, or with international free trade agreements involving a party that has powerful content industries such as the U.S. Thus, the immediate question before us is no longer whether the second and third layer of protection of digital works is appropriate or viable. Rather, at this stage, attention should be drawn to the alternative design choices that remain with countries that face the challenge of drafting or revisiting a legal regime aimed at protecting TPM. Consequently, the purpose of this paper is to identify different legislative and regulatory approaches and to discuss them in the light of previous experiences with TPM legislation in the U.S. and in Europe. Ultimately, the paper seeks to formulate basic design (or best practice) principles and to sketch the contours of a model law that aims to foster innovation in the digitally networked environment and minimize frequently observed spillover effects of TPM legislation.
Highlights
Digitization in tandem with the emergence of electronic communication networks has changed the ways in which we create, distribute, access, and use information
In the field of legal protection of technological protection measures (TPM), the World Intellectual Property Organization (WIPO) Internet Treaties on the one hand and bilateral trade agreements on the other hand can be seen as the main drivers of a larger trend towards harmonization—or convergence—of copyright laws in the broader sense
The rough overview provided in the first section of this Article illustrates that the WIPO Internet Treaties create a level playing field, but leave significant leeway to the parties as to the exact manner in which they implement the anti-circumvention provisions
Summary
Digitization in tandem with the emergence of electronic communication networks (the Internet) has changed the ways in which we create, distribute, access, and use information. Lawmakers at both the international and national level have enacted legal provisions aimed at banning the WORLD ANTI-CIRCUMVENTION LEGISLATION act of circumvention of TPM on the one hand and the production and dissemination of circumvention tools on the other hand.[1] Prominent examples of such legislation, among others, are the World Intellectual Property Organization (WIPO) Internet Treaties,[2] the Digital Millennium Copyright Act (DMCA) section 1201,3 the European Copyright Directive (EUCD) articles 6 and 8,4 and the respective implementations of the EUCD into the laws of EU Member States.[5] Against this backdrop, this Article[6] takes it as its baseline that many countries have already enacted legislation or will soon legislate on TPM in order to comply either with international obligations under WIPO, or with international free trade agreements involving a party that has powerful content industries such as the U.S the immediate question before us is no longer whether the second and third layer[7] of protection of digital works is appropriate or viable. This Article is a work in progress and subject to change
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