A New Study on DRMs and their Impact on Privileged Use

Patrícia Akester from the Centre for Intellectual Property and Information Law at the University of Cambridge has just published a new study on DRM. Here’s the abstract:

Copyright incentives and rewards to producers of works have been able to exist alongside other values, such as freedom of expression. However, changes in the way information products are being disseminated raises questions as to whether those values remain compatible with the new modes of dissemination. So far, studies devoted to digital rights management (DRM) and copyright exceptions have noted, theoretically, its legal implications. This research filled an existing gap by unveiling, through empirical lines of enquiry, (1) whether certain acts which are permitted by law are being adversely affected by the use of DRM and (2) whether technology can accommodate conflicts between freedom of expression and DRM - linking, thus, policy conclusions to empirical findings. The survey concluded that some beneficiaries of privileged exceptions are being adversely affected by the use of DRM and practical solutions are required.

Thus, it is proposed that, in the short term, with the help of the empirical findings and recommendations of this study, the EC Commission submits a proposal for two amendment of Article 6(4) of the Information Society Directive, as follows:
(1) A definition of the expression ‘appropriate measures’ should be inserted in Article 6(4) of the Information Society Directive, stating that for the purposes of that Directive such measures require the establishment of a procedure to enable expeditious access to works by beneficiaries of privileged exceptions, leading to the creation of standardized access to works portals across EC Member States. The existence of access to works portals would be made possible by a DRM deposit system, according to which the means to enable beneficiaries of privileged exceptions to benefit from them would be deposited and made available through access to works portals, in specified circumstances.
(2) It should be added to Article 6(4) of the Information Society Directive that where access to works by beneficiaries of privileged exceptions is not facilitated, the protection of privileged exceptions (given their connection to core freedoms) prevails over the protection of DRM, even where works are supplied online on agreed contractual terms.

I could not agree more with the conclusion that art. 6(4) of the European Information Society Directive begs to be amended (this provision does not have a real equivalent in U.S. copyright law). I also agree that safeguarding “appropriate measures” (that is, steps taken by Member States to ensure that certain copyright exceptions remain exercisable despite technological protection measures) must be extended to works that are offered online under contractual terms – what else!?

I believe that the idea of access portals is a good one, at least in theory. But it would achieve too little, since access entitlements remain tethered to old-style copyright privileges, which is a consequence of the structure of the Directive. The proposed instrument would not cover instances where users simply need access (read, observe, listen) to digitally locked-up material. In other words, the proposed amendment cannot remedy curtailment of the constitutional “right to receive information” – a right the Supreme Court once called “an inherent corollary of the rights of free speech and press.”

Even subject to a more robust “appropriate measures” mechanism, rights of access to works would remain contingent, fragile, invisible. They will continue to have the status a background assumption, one that in the DRM environment often proves fallacious. To me, the need to secure adequate opportunities to receive information is in some respect even more basic than supporting the exercise of copyright exceptions, and for that matter, protecting fair use interests within the framework of the U.S. rulemaking process. In an ideal world, and to the extent that exclusivity seriously abridges rights of access to copyrighted information, rights of access should rank equally as other explicit exceptions and be manifested clearly in copyright law itself. This requires a much more fundamental change in the law, one that in the current political economy of copyright lawmaking falls under science fiction rather than considered an operative route. In this respect, incremental efforts to fix art. 6(4) in Europe or to expand the jurisdiction of the U.S. rulemaking process are welcome, as they point in the right direction. Something is better than nothing, at least in this context.