Technological Protection Measures: Tilting at the Copyright Windmill

Canada's imminent decision whether to ratify the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) raises questions about the extent to which Canadian law ought to protect the technologies that protect works subject to copyright in a digital environment. In addressing this question, the authors commence with a detailed description of the current state of the art in technological protection measures (TPMs). The authors demonstrate that an attempt to provide a simple description of TPMs has been complicated by the introduction of more sophisticated information systems designed to protect intellectual property, known as digital rights management systems (DRMs). Following their technological description of TPMs and DRMs, the authors analyze the TPM concept and investigate the legal implications of Canada's commitment as a signatory of the WCT and WPPT to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures. After situating their analysis in a broader philosophical context, the authors consider the consequences of affording an additional layer of protection over and above the existing protections offered by copyright law, contract law and the technologies themselves. They then examine various possible implementations of the WIPO treaties as well as legislative responses from Australia, Japan, and the European Union, with particular emphasis on the United States and the cases and commentary that it has produced. The authors conclude that, until the market for digital content and the norms surrounding the use and circumvention of TPMs become better known, it is premature to ascertain the appropriate legal response. Consequently, they suggest that Canada should not implement any new legal measures to protect TPMs at this time. Recognizing the possibility that such measures might need to be adopted in the face of new empirical evidence, the authors recommend that the legislative creation of access-control right must be counter-balanced by a newly introduced access-to-a-work right. Under this approach, copyright owners would have a positive obligation to provide access-to-a-work when persons or institutions fall within the exceptions or limitations that would be set out in the Copyright Act. Such an obligation might entail the positive obligation to allow access to works in the public domain, or to provide unfettered access-to-works to educational institutions and other organizations that are currently exempted from a number of the provisions in the Copyright Act. Finally, the authors end by pointing out that the approach to the TPM issue has thus far neglected a question that is logically prior to those raised by the current debate about anti-circumvention laws. They point out that, before asking whether and under what circumstances copyright legislation ought to protect TPMs, perhaps it is necessary to first ask whether and under what circumstances TPMs should be permitted to flourish.

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