Technological Protection Measures and Rights Management Information
| Author | Cameron Hutchison |
| Pages | 123-143 |
[123]
Technological Protection Measures and
Rights Management Information
A. INTRODUCTION
is chapter considers two kinds of measures whose intended purpose
is to ensure the eective control and management of copyrights in the
digital sphere: technological protection measures (TPM) and rights
management information (RMI). e obligation to implement these
measures appears in the two “Internet” treaties of the World Intellectu-
al Property Organization (WIPO): the WIPO Copyright Treaty (WCT) and
the WIPO Performances and Phonograms Treaty (WPPT), and thus the
measures are already implemented in many national copyright systems.
Technological protection measures — more colloquially referred to as
“digital locks” — are the means by which copyright holders can control the
copying or use of work. eir appearance in copyright law is nothing if
not controversial as these locks raise justifiable fears of obliterating user
rights in copyright. e protection of rights management information is
decidedly less controversial as these provisions merely ensure that users
of works are notified of the author, owner, and terms of use pertaining
to a work. Both TPM and RMI regimes raise a number of interesting and
important interpretive issues.
1 WIPO Copyright Treaty, Can TS 2014 No 20 [WCT]; WIPO Performances and Phono-
grams Treaty, Can TS 2014 No 21 [WPPT].
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B. TECHNOLOGICAL PROTECTION MEASURES: SECTION
Section of the Copyright Act has many pivotal interpretive issues that
determine the scope aorded to anti-circumvention measures. In seek-
ing to understand them, important guidance is to be gained by consid-
ering the international legal context of the measures and, in particular,
the interpretation by US courts of the Digital Millennium Copyright Act.
is Act sheds light not only on the interpretation of specific provisions
but also on the purpose behind these measures.
e heart of this chapter is an analysis of key language in section
pertaining to the oence of anti-circumvention, the targets of these
measures, the remedies, and exceptions.
1) The International Legal Context
A US Green Paper rationalized the implementation of anti-circum-
vention measures on the following grounds: () there is a need to coun-
teract the ease of committing infringement on the Internet and to help
address the diculty in detecting such activity, () technological pro-
tection measures are susceptible to circumvention, () intermediary
liability for anti-circumvention activities under indirect infringement
provisions is ineective, and () greater dissemination of works (since
copyright holders would be confident to put works online) and reduced
prices (since the price of works legitimately purchased would not have
to be oset by massive losses through online piracy) would promote the
public interest. In , anti-circumvention measures were passed into
law under the US DMCA. US caselaw has reiterated some of these factors
as the policy goals underlying anti-circumvention provisions. In Univer-
sal Studios v Corley, the US Court of Appeals for the Second Circuit stated:
Fearful that the ease with which pirates could copy and distribute a
copyrightable work in digital form was overwhelming the capacity
of conventional copyright enforcement to find and enjoin unlawfully
2 Pub L No 105-304, 112 Stat 2860 (1998) (codified in scattered sections of 17 USC)
[DMCA].
3 Zohar Efroni, Access-Right: The Future of Digital Copyright Law (New York: Oxford
University Press, 2011) at 293. Number (3) is the concern that the sale of technology
that can be used for both infringing and non-infringing purposes does not attract
liability. This principle is also found in Canadian law under the “authorization”
jurisprudence: see Chapter 2.
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