Freedom Of Expression Vs. DRM — The First Empirical Assessment 25/05/2009 by Intellectual Property Watch 18 Comments Print This Post The views expressed in this column are solely those of the authors and are not associated with Intellectual Property Watch. IP-Watch expressly disclaims and refuses any responsibility or liability for the content, style or form of any posts made to this forum, which remain solely the responsibility of their authors.By Patricia Akester 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 raise 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 looking at the impact of DRM on the ability of users to take advantage of certain exceptions to copyright through empirical lines of enquiry. Based on a series of interviews with key organisations and individuals, involved in the use of copyright material and the development and deployment of DRM, the study examined how these issues are working out in practice. While a nightmarish vision of digital lock-up has not materialised, the survey concluded, nevertheless, that significant problems do exist, and others can readily be foreseen: Conclusion (1): Although DRM has not impacted on many acts permitted by law, certain permitted acts are being adversely affected by the use of DRM. Some beneficiaries reported limited or no enjoyment of a privileged exception but were not able to provide evidence in support of those claims. Other beneficiaries of privileged exceptions (such as, the British Library and the UK film lecturers and students/researchers community) are being adversely affected by the use of DRM. For example, data collection within the film lecturers and students/researchers community revealed two problems: DRM protection of cinematographic works is leading to difficulties in extracting portions of those works for educational use and those difficulties are triggering isolated acts of self-help for academic and educational purposes. Conclusion (2): This is in spite of the existence of technological solutions (enabling partitioning and authentication of users) to accommodate those permitted acts. This study uncovered that two of the DRM technologies under examination include flexible usage rules allowing for designation of users, user roles or group memberships. Sun Microsystem’s DReaM addresses, from a technological viewpoint, both user partitioning and authentication, highlighting the fact that certain permitted acts may be enabled by technology. In terms of architecture, Intertrust’s Marlin has a lot in common with Sun’s technology (including interoperability, user partitioning and authentication). Conclusion (3): Beneficiaries of privileged exceptions who have been prevented from carrying out those permitted acts (because of the employment of DRM) have not used the complaints mechanism set out in UK law. Amongst respondents of the study, it was found that user representatives were aware of the complaints mechanism but had not tested it, whilst individual respondents were not familiar with it. Certain beneficiaries found it too onerous to utilise the complaints mechanism and other beneficiaries were not aware of its existence. As a result, the UK complaints’ mechanism remains untested in spite of the existence of some problems, with some users finding it too impractical and others being unaware of its existence. Conclusion (4): Article 6(4) of the Information Society Directive put an onus on content owners to accommodate privileged exceptions voluntarily. Voluntary measures have emerged in the publishing field, but not all content owners are ready to act unless they are told to do so by regulatory authorities. In the music and film arenas, there is a strong awareness that there is not an obligation to accommodate permitted acts through DRM. This has not led to problems in terms of enjoyment of privileged exceptions in connection to music – unsurprisingly, given the phasing out of DRM in music. But, as reported above, the film lecturers and students/researchers community is being adversely affected by the use of DRM. Recommendations: Ultimately, some beneficiaries of privileged exceptions are being adversely affected by the use of DRM and practical solutions are required. Hence, the report proposes that, in the short term, with the help of the empirical findings of the study, the European Commission submits a proposal for two amendments 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 standardised access to works portals across EC Member States. Beneficiaries of privileged exceptions (such as libraries, lecturers, students and researchers) require access to works protected by DRM, so as to be able to carry out certain permitted acts (and, therefore, take advantage of certain copyright exceptions that are connected to core freedoms). This implies setting out a procedure (step-by-step and with a clear time-frame) to facilitate access to works by beneficiaries of privileged exceptions, thus enabling optimum use of those exceptions. It implies the need for access-to-works portals (rather than access to complaints portals). 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 the means to enable beneficiaries of privileged exceptions (such as libraries, lecturers, students and researchers) to benefit from them are not deposited, the protection of privileged exceptions prevails over the protection of DRM, whether or not works are supplied online. So, where access to works by beneficiaries of privileged exceptions is not facilitated, the protection of privileged exceptions (given their connection to core freedoms) should prevail over the protection of DRM. The 208-page report, entitled “Technological accommodation of conflicts between freedom of expression and DRM: the first empirical assessment,” is available here. Patricia Akester, PhD, is a researcher at the Centre for Intellectual Property and Information Law, University of Cambridge, where she also teaches. Her research interests lie particularly on the intersection between digital copyright law and human rights. 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