Patricia Akester (University of Cambridge) undertook a project looking at the impact of technological measures on the ability of users to take advantage of the statutory exceptions to copyright. Based on a series of interviews with key organisations and individuals, involved in the use of copyright material and the development of DRM (Digital Rights Management), she provides a sober assessment of the current state of affairs.
When technological measures were under consideration in the mid 1990s two stark scenarios presented themselves: on the one hand, an ideal world where copyright owners could use DRM to make their works available under a host of different conditions in a way that responded to the diversity of consumer demand; on the other, a more bleak environment where all users of copyright material (and much non-copyright material) would be forced to obtain permission and pay to access material that previously would have been available to all.
In the face of these two extreme visions, the European legislature developed a compromise position, embodied notoriously in Article 6(4) of the Information Society Directive. The legislature appeared to be hoping that rightholders would voluntarily make material within certain specified exceptions available to users. Patricia Akester examines how these issues are working out in practice.
And the (surprising?) result is that present legislation may be fuelling a new generation of content pirates. Patricia Akester found that DRM introduces so many problems that even ordinary legitimate users of content can be turned to websites like the Pirate Bay to get what they need. One example provided was that of the blind. The Royal National Institute of Blind People’s Head of Accessibility, Richard Orme, told Akester that by law, people with sight problems have the right “to create accessible copies of works”.
The study recommends that European legislation be modified so to state that where access to works by beneficiaries of privileged exceptions is not facilitated, the protection of privileged exceptions (given their connection to core freedoms) prevails over the protection of DRM, even where works are supplied online on agreed contractual terms.
You can download the paper here.