Introduction
Copyright is created by an independent branch of power based on wide discussions as a legal monopoly limited by rules to protect different legitimate interests. In contrast, control provided by so-called DRM systems is based on a technical monopoly unilaterally adopted by the "content owner", hardly limited by legal regulations. Table 1 below points out essential differences between the copyright regime and a digital content control regime:

Table 1: Comparing the properties of copyright and DRMs

 

properties of copyright

properties of DCCE systems

material scope

Yes. The law defines what content is protected by authors’ rights and related rights.

No. It can be applied to any digital content, irrespective of its copyrighted nature.

term of validity

Yes. After the expiry of the protection term, works belong to the public domain.

No. It can be applied to any digital content, irrespective of how “old” it is.

restricted acts

Yes. Only certain activities are subject to the exclusive right of the rightholder.

No. It can restrict any digital acts, irrespective of its relevance in copyright.

exhaustion

Yes. The rightholder can no longer control the distribution, if the copy of the work has been lawfully put into circulation in an EEA member state.

No. Although the distribution of physical copies can not be prevented by DRMs, the consumer can be kept from accessing the works, practically evading the law.

conditions of exercising rights

Yes. In some cases the copyright law provides for a mere right to remuneration without an exclusive right to license the use – see for example Article 12, Rome Convention on the communication to the public of a sound recording released for commercial purposes

No. The mere rights to remunerations can be turned to an exclusive right through a DRM technology.

conflicts with other priorised interests

Yes. Exceptions, limitations from the exclusive right of the rightholder, in some countries these limitations are called “free” or “fair” uses – see Article 5, EUCD.

Partly. The EUCD appointed 7 paramount exceptions, the beneficiaries thereof can benefit from them – even against the technical protection.


This table clearly shows that use of DRMs tends to overstretch copyright. This topic was already subject in the INDICARE article "It’s not a right, silly..." by Natali Helberger (2004). While I have already commented online on the case she makes in her article (see comment to http://www.indicare.org/tiki-read_article.php?articleId=48), in this article I will discuss the tension between copyright and DRMs more strictly. There are two theoretical aspects that need attention:

1.) Firstly, the barriers of copyright are the outcome of long debates. If we think, that these debates were not in vain, some elements of these solutions should be applied to DRMs as well, as a legal regulation.

2.) Otherwise: if – with the wide, unlimited recognition of DRM systems – we accept, that these barriers are not necessary, then we should consider, whether they are needed at all in copyright. Should we erase the definition of "public domain" from copyright?

The consumer protection issues addressed in the INDICARE State-of-the-Art Report (2004) are important, but they cannot answer the above questions. The purpose of that branch of law is different of copyright, and is only applicable to “consumers”, although the DRM-problem affects all kind of users. Copyright Law must continue to create a balance of interests.

In the following I will first present the areas where the European legislator tried to solve the problem, before I will share some comments on those fields which the European legislator has not dealt with in order to find a balance of conflicting interests.

Regulation in effect
First I would like to present the current legislation contained in 2001/29/EC, the European Copyright Directive (EUCD), Art. 6.4. This regulation deals with the situation, when a technological protection measure (TPM) – and therefore the DRM system based on it – conflicts with the exceptions provided for by the Directive. The problem is evident: in these cases the copyright holder would have no right to claim for remedies against the user, but with a technical action he can nevertheless prevent him from this use.

As every legislator, the European one also tries to balance the interests of copyright holders, of users and of other interested stakeholders. Therefore it grants exceptions from the exclusive rights to some beneficiaries with (theoretically) well-defined conditions. This effort could remain fruitless if the rightholders (or in this case we should rather call them “content owners”) simply make this balancing technically impossible.

At this point we need to mention that the exceptions – although in some countries formalized as "rights" – basically give no enforceable right to users, they only mean the simple limitation of the exclusive rights under copyright (see e.g. Helberger 2004). In other words: when a country’s Copyright Act states that someone "may freely make a copy…", it means, that if someone is able to make a copy, the rightholder cannot protest against it.

The European legislator tried to solve this problem as follows:

1.) The Directive, Art. 6.4, appoints seven priorised exceptions:
  • reproductions by reprographic means; Art 5(2)(a);
  • reproductions made by libraries, schools, museums, archives; Art 5(2)(c)
  • ephemeral recordings of broadcasting organisations; Art 5(2)(d)
  • reproductions of broadcasts made by social institutions; Art 5(2)(e)
  • illustration for teaching or scientific research; Art 5(3)(a)
  • uses for the benefit of people with a disability; Art 5(3)(b)
  • uses for the purposes of public security; Art 5(3)(e)

It also appoints another priorised exception separately:
  • private copying of natural persons; Art 5(2)(b)

2.) The regulation continues as follows: in these 7+1 cases, when technological measures make the exception unavailable to the public, "the rightholders should make available to the beneficiaries of these exceptions the means of benefiting from that exception". In other words, the member states are to give a first chance to the rightholders to deal with this matter, and only after they have failed to do so, legislators have to interfere. By the way, in appr. 14 "other cases" the directive specifies when rightholders are not required to make the exercise of such limitations possible.

3a) In the first seven cases, if the rightholder does not make these exceptions available, the member states shall take "appropriate measures" to ensure their realization. It means that in cases when technological measures and exceptions conflict with each other, the latter triumphs. As the law finally can not give any other means to solve a legal dispute – in case the rightholder and the beneficiary of the free use can not agree in these questions –, the final solution of any such "appropriate measure" can only be a court decision on the case.

3b) In the case of private copying, if the rightholder does not make this exception available, the member states may take appropriate measures to ensure its realization. If a member state does not take any such measures to ensure private copying, nothing happens. The only “sanction” is that the member state will have to take into account the application or non-application of TPMs in the levies compensating rightholders for the private copying (see Art. 6.4 and 5.2(b) of the EUCD).

4.) The above regulations are not applied, i.e. TPMs prevail by all means, if the works are made available to the public on agreed contractual terms, for example through "online music shops". With the shift of copyright-related commerce to online solutions, this surprising regulation of the European legislator will become more and more discriminative and unjustifiable.

Regulations needed
The broad collision of technological measures and uses irrelevant to copyright is of course not a new discovery. “With the advent of technological measures for the control of access to and use of works, and with the beginning of the actual application of such measures, the question emerged quite logically whether these measures would – or should – allow the continued application of exceptions and limitations recognized by international treaties and national law” (Ficsor 2002, pp. 556-557).

However, up to now, all regulations addressed only the conflict of exceptions or limitations and technological measures. As I tried to demonstrate in the introduction, this topic covers only a small part of the problem. The controversy caused by DRMs is however much broader: what happens, if it prevents uses that are not relevant to copyright? What happens if it prevents uses of works not protected by copyright (e.g. news, folklore works, works of authors died more than 70 years ago)? These technical barricades also cause conflicts of interests.

What is the current answer to these questions?

  • Under the WIPO Copyright Treaty (Art. 11) only technological measures "that are used by authors in connection with the exercise of their rights" are protected.
  • Under the EUCD (Art. 6) only those technological measures are protected "that are designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorised by the rightholder of any copyright (...)".

It means (somewhat simplifying) that if a technological measure is applied for not-protected works, it can be circumvented legally. This solution is not a good one for those who could otherwise freely use these contents: they must become hackers to enjoy the public domain. But this solution is also bad for the “content owners” using DRM technology to prevent acts: they will use the same technology to protect contents, and if someone freely hacks these measures, all their measures would become unprotected. And finally, it is not a good solution for the public at large, because it leads to an “armaments race” outside the rule of law.

The solution could therefore be a comprehensive re-thinking of the question. The simpler answer would be the total ban of using technological protection measures where no copyright exists.

Another option could be a general anti-circumvention protection to all technological measures. This would previously require a thorough investigation of every barrier of copyright: should they remain dead letter, or should we fight for their continued application? In my view however, at least the already existing regulation of the EUCD could be extended to DRMs which prevent acts that are otherwise not relevant from a copyright point of view. In the present situation it is quite absurd, that a library can ask publishers for copies of protected copyrighted works, but if a non-copyrighted content (e.g. an old poem or a court decision) is protected by technical measures, they can't. Again, the legislator should address the already mentioned 7+1 beneficiaries, and should priorise them also against those TPMs which are preventing non-uses, or any acts regarding already-non-protected-works and non-protected-contents.

Bottom line
My – maybe unorthodox – conclusion contains a question and a request. The copyright legislation of the Community solved somehow the conflict between exceptions and technological measures. I would like to ask the INDICARE community (if any such exists) to help thinking out of the box and to address the following question: Does the conflict of otherwise freely accessible and exploitable contents and DRM systems need further legal regulation?

Sources

About the author: Dr. Péter Benjamin Tóth is a legal counsel at the Hungarian musical collecting society ARTISJUS. He is also a member of the Hungarian Copyright Expert Group. Contact: ptoth@artisjus.com

Status: first posted 25.02.2005; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=79