Digital rights management solutions helps protect against copyright infringement, but has it gone too far?
About 75% of internet traffic is generated by peer-to-peer, so-called P2P, networks, much of which consists of unlicensed copyrighted material. In response, content providers have developed a number of “technological protection measures” (“TPMs”) aimed at restricting users’ ability to copy digital material. These technological protection measures are usually referred to under the umbrella term “digital rights management” (“DRM”). However, these technological protection measures are often vulnerable to circumvention, and laws have been passed worldwide making it illegal to circumvent the protections. Critics claim DRM systems and their legal protections prevent legitimate use of copyrighted works, stifle freedom of expression, and tilt the balance of power too far in the direction of rights holders.
In November 2005, the All Party Parliamentary Internet Group (“APIG”) launched an investigation to examine the issues surrounding DRM and its impact on copyright law. In June of this year, the APIG published its findings in Digital Rights Management: Report of an Inquiry by the All Party Internet Group (“the APIG report”).
The APIG report describes DRM as a “generic term for a set of technologies for the identification and protection of intellectual property in digital form”. DRM systems fall into two main categories:
- “technological protection measures” – “systems and technologies which can be used to prevent unauthorised copying”; and
- “rights management information” (“RMI”) – mechanisms that identify a digital work and which are used to manage how it is provided to customers.
As one submission to the APIG put it, “RMI expresses the rights owners’ intent, and TPMs ensure that this is honoured”.
The international framework for anti-circumvention laws protecting DRM systems was established by two treaties adopted by the World Intellectual Property Organisation (“WIPO”) in 1996 – the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (“the WIPO treaties”). These treaties require contracting states to provide “adequate legal protection and effective legal remedies” against the circumvention of TPMs. The WIPO treaties have been implemented in many jurisdictions and were brought into EU Law by the 2001 directive on the harmonisation of certain aspects of copyright and related rights in the information society which the UK implemented with the Copyright and Related Rights Regulations 2003 (SI 2003/2498). Some have questioned whether the UK legislation adequately implements the relevant provisions of the copyright directive.
The main findings and recommendations APIG report:
- DRM benefits consumers: including giving rise to new business models that increase consumer choice.
- Loss of perceived “rights”: consumer objections to DRM often stem from ignorance of copyright law.
- Permitted circumvention?: allowing for increased circumvention of TPMs to exercise rights under copyright exemptions is unlikely to bring much benefit.
- Warning labels: content industries expressed their support for clear labelling, so consumers know what rights they are acquiring when purchasing a DRM-protected download or a copy-protected CD.
- Competition law: recommended that the Department of Trade and Industry investigate the competition law aspects of DRM.
- Other issues: recommendations include calling for further reviews and for future policy oversight. The APIG rejected calls from some content providers to make the use of DRM mandatory for all digital content.
It remains to be seen what action will be taken in response to the APIG report. However, if the APIG’s recommendations are taken seriously, this could go a long way in ensuring that the interests of consumers and content providers are kept properly in balance as we enter a world in which many people’s entire music collections are purchased via digital downloads.
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