Digital Rights Management and Privacy – Legal Aspects in the European Union

Abstract

As legal phenomena, intellectual property rights and privacy rights have tended to live separate lives. At the same time, regimes for protecting intellectual property have had, up until lately, only a marginal practical impact on the privacy of information users. However, recent developments in Digital Rights Management Systems (DRMS) are bringing to the fore considerable tension between the enforcement of intellectual property rights and the maintenance of consumer privacy. This tension arises not so much out of differences between the basic nature of intellectual property and that of privacy. Rather, it arises from a push by the holders of intellectual property rights (and their intermediaries) to secure their interests by utilising DRMS with the potential to facilitate an unprecedented degree of surveillance of consumers’ reading, listening, viewing and browsing habits. The basic purpose of this chapter is to explore this tension and discuss how it is likely to be resolved in terms of European Community (EC) law.

Much of this chapter is based on work published in Bygrave (2002a) and Bygrave, Koelman (2000). Thanks to Kamiel Koelman and Graham Greenleaf for helpful commentary along the way. All following references to Internet addresses were current as of 1st March 2003.