Technological Protection Measures and Rights Management Information

• Author: Cameron Hutchison
• Pages: 123-143

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Technological Protection Measures and

Rights Management Information

A. INTRODUCTION

is chapter considers two kinds of measures whose intended purpose

is to ensure the eective 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]; WIPOPerformances 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 aorded 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 oence 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 diculty in detecting such activity, () technological pro-

tection measures are susceptible to circumvention, () intermediary

liability for anti-circumvention activities under indirect infringement

provisions is ineective, 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 oset 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.