The evolution of anti-circumvention law

Abstract

Countries around the world have since 1996 updated copyright laws to prohibit the circumvention of ‘Technological Protection Measures’, technologies that restrict the use of copyright works with the aim of reducing infringement and enforcing contractual restrictions. This article traces the legislative and treaty history that lies behind these new legal provisions, and examines their interaction with a wide range of other areas of law: from international exhaustion of rights, through competition law, anti-discrimination measures, regulation of computer security research, constitutional rights to freedom of expression and privacy, and consumer protection measures. The article finds that anti-circumvention law as promoted by US trade policy has interfered with public policy objectives in all of these areas. It picks out key themes from the free trade agreements, legislation and jurisprudence of the World Trade Organization, World Intellectual Property Organization, USA, EU member states, and South American, Asian and Australasian nations. There is now a significant movement in treaty negotiations and in legislatures to reduce the scope of anti-circumvention provisions to ensure their compatibility with other important policy objectives.