DRMS, TCP and the EUCD: technology and law
Introduction
Computer technology and especially Internet constitute an increasing challenge to the copyright owners. Software can be copied infinitely and ‘pirated’, as is happening everywhere and, first and foremost, in economically poorer countries like China. And, digitized content can similarly be copied and transferred on Internet, as is increasingly done with P2P arrangements like Kazaa.
Copyright law already forbids illegal copying, however, the new technological possibilities for copying and transferring software and content pose a serious challenge to the owners of copyrighted material and, therefore, to the legislation protecting copyright. This is, in very broad terms, the background for the Digital Millennium Copyright Act of 1998 in the US and the EU Copyright Directive (EUCD) of 2001.
An important part of the new EUCD deals with the provisions for Digital Rights Management Systems (DRMS). DRMS aim to offer content owners a higher level of protection against unauthorized exploitation of copyright protected work in an environment which is characterized by digitization, easy and high-quality reproduction possibilities as well as global distribution platforms, and rapid roll-out of broadband Internet infrastructure. Additionally, DRMS aim at providing copyright holders the technological tools to enforce pre-determined usage rules and facilitate legal distribution of copyright protected work.
From a legal point of view, the discussions often focus on the allocation of rights and obligations of the copyright holders, on the one hand, and the consumers, on the other. More specifically, what kinds of rights can the purchaser of a copyright protected work claim (e.g. right to make a private copy) and to what extent can the content owner restrict the usage after the sale. In this respect, by December 2002, member states have had to implement into national laws the EUCD.1 The Directive contains two provisions regarding DRMS. First, the Directive obliges member states to ‘provide adequate legal protection against the circumvention of any effective technological measures’.2 Second, it obliges member states to enact legislation which adequately protects against the removal or alteration of rights management information (e.g. watermarks) and against the distribution of such altered copyright protected work. However, the usage of the vague term ‘adequate’ gives member states some leeway in the implementation of the Directive. With the adoption of new laws implementing the EUCD, the discussions about DRMS will intensify as national courts will begin to apply and define rights and obligations in practice.
From an economic point of view, the crucial questions, which companies face, relate to the business and payment models, which can succeed in this environment. For instance, ‘pay-per-view’ pricing schemes can be a viable solution for the movie industry, while for music producers subscription models may seem to be a more promising approach. Thus far, copyright holders have primarily been concerned with the Internet as a threat to their established distribution and business models. Only slowly, content owners are embracing the new technological possibilities to make use of the enormous cost savings that can be achieved. DRMS are crucial tools in this development, and TCP will be important for the implementation of DRMS.
TCP stands for Trusted Computer Platform, which is a set of technology platforms developed by TCPA (Trusted Computer Platform Alliance)3 with the official purpose of creating a more secure and trusted computer environment. However, the question is: secure for and trusted by whom? TCP may provide a foundation, for instance, for a more virus and spam free environment but is primarily developed to secure copyright on content and software. It is seen as a necessary basis for DRMS to be effectively implemented. At present, TCP is implemented in the so-called Fritz chip and Microsoft is, furthermore, developing their Next Generation Secure Computing Base (NGSCB) (formerly known as Palladium) project with the purpose of better protecting their software from copying. The perspective is that TCP will not only be confined to the hardware level allowing for an improved protection of copyrighted material, but will also lead to an environment where, e.g. non-certified software will not be able to communicate with TCP certified software and will not work on TCP certified hardware.4
The paper elaborates on the issues outlined above and seeks to provide guidance in the increasingly important fields of copyright protection and usage rules in a digital environment. The aim of the paper is to discuss the implications of DRMS and TCP from a legal perspective. This implies an explanation of what DRMS and TCP are and a discussion of the rationale and interests behind their implementation and the problems that they may create. Furthermore, the paper examines the relationship between the technological DRMS and TCP tools and the laws protecting copyright holders. There is a general tendency to argue for a substitution of legal provisions for technological solutions. The question is whether this is desirable––and possible. Is it a realistic assumption that code can substitute for law––to speak the language of Lawrence Lessig in his book on ‘Code and other laws in cyberspace’.5 And, how do code and law interrelate in the field of DRMS/TCP and copyright?
Section snippets
DRMS and TCP
Right management systems are not specific to the digital world and already exist in the analogue world. For instance, VHS tapes have been protected against illegal reproduction. But this Macrovision protection was rather easy to circumvent. However, while the Macrovision protection had a very limited functionality (i.e. prevention of copying), DRMS enable whole new business models (e.g. time limited viewing of content). This is mainly due to the increased control by the copyright holder over
Converged digital content protection pyramid
After this introduction to the technological side of DRMS and TCP, the present section discusses DRMS and TCP in a legal context. In this respect, one can refer to DRMS as the technological element in the converged digital content protection pyramid (Fig. 1) consisting of legal and technological elements. This pyramid can be divided into three parts: theoretical allocation, enforcement and sanctions.11 Before
Conclusions
As technology is more and more affecting the general public, whereby the owners of technologies, at the same time, gain capabilities to set rules and enforce them, and as law can be referred to as the setting of rules addressing the general public in a society, the relationship between technology and law, and more specifically the role of technology within the legal framework encompassing the setting and enforcing of general rules, increasingly needs to be examined. This question requires
References (2)
Commission Staff Working Paper Digital Rights––Background, Systems, Assessment
Code and Other Laws of Cyberspace
(1999)
Cited by (4)
A layered approach for exploring the relationship between law and technology
2010, ICMB and GMR 2010 - 2010 9th International Conference on Mobile Business/2010 9th Global Mobility RoundtableDigital Rights Management: A Librarian's Guide to Technology and Practise
2008, Digital Rights Management: A Librarian's Guide to Technology and PractiseThe impact of the internet on media policy, regulation and copyright law
2008, The Internet and the Mass MediaCopyright and artists: A view from cultural economics
2006, Journal of Economic Surveys