Nicolo Zingales (17/12/2021). Technological Protection Measures. In Belli, L.; Zingales, N. & Curzi, Y. (Eds.), Glossary of Platform Law and Policy Terms (online). FGV Direito Rio. https://platformglossary.info/technological-protection-measures/.
Author: Nicolo Zingales
Due to the easy duplicability of information transmitted in digital form, copyright holders regularly resort to technical protection measures (TPMs)1, such as encryption-based paywalls, to prevent acts that are not authorized by the right holder of any copyright or any right related to copyright. The legal system reinforces this type of protection by explicitly outlawing not only any acts of circumvention of TPMs, but also the manufacturing and sale of devices that have the primary purpose or effect of enabling such circumvention.
In the EU, in particular, Member States2 are required as part of the EU Copyright Directive3 to provide adequate legal protection against the knowing circumvention of any “effective technological measures”, thereby referring to any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter4.
According to the Directive, technological measures shall be deemed “effective” where the use of a protected work or other subject-matter is controlled by the rightsholders through application of an access control or protection process, such as encryption, scrambling, or other transformation of the work or other subject-matter or a copy control mechanism, which achieves the protection objective. Furthermore, adequate legal protection is required against the manufacture or sale of any device which (a) has the purpose of circumventing a TPM; (b) has a limited commercially significant purpose other than such; or (c) is primarily designed to do so.
There are two critical aspects of this type of legal protection: first, although it is intrinsically related to copyright, it is also independent from it – specifically, any unlawful circumvention constitutes a breach regardless of whether it led to an actual copyright infringement. Second, it may interfere with the ability of users of copyrighted works to benefit from exceptions and limitations that are specifically provided in copyright legislation.
In principle, the continued application of these exceptions and limitations is guaranteed through article 6 (4) of the Directive, which requires the Member States to provide adequate measures to that end. However, Member States are only required to act in the absence of voluntary measures taken by rightsholders, including the conclusion and implementation of agreements between rightsholders and other parties.
References
- Gasser, U. (2006). Legal frameworks and technological protection of digital content: Moving forward towards a best practice model. Fordham Intell. Prop. Media & Ent. LJ. 17, 39.
- Gasser, U., Girsberger, M. (2004). Transposing the Copyright Directive: Legal Protection of Technological Measures in EU-Member States – A Genie Stuck in the Bottle?. Available athttp://cyber.law.harvard.edu/media/files/eucd.pdf.
- Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society. OJ L 167. 22/06/2001.
- Zingales, N. (2015). Of coffee pods, videogames, and missed interoperability: Reflections for EU governance of the internet of things. TILEC Discussion Paper. Available at: https://ssrn.com/abstract=2707570 or http://dx.doi.org/10.2139/ssrn.2707570.