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by Viveca Still, independent researcher at the University of Helsinki (faculty of law), Finland

In this paper the legal conditions for the development (and standardisation) of digital rights management systems will be explored. The legal provision regarding digital rights management systems in the Digital Millennium Copyright Act (DMCA) and the EC directive on the harmonisation of copyright and neighbouring rights in the information society (copyright directive) as well as the conditional access directive (98/84/EC) will be explored and compared with a view to outline the general conditions for the standardisation of digital rights management systems. Last but not least, certain principles for the elaboration of digital rights management systems based on the idea of free flow of information will be outlined.

The main challenge for copyright law at present is to preserve effective protection of intellectual property while safeguarding the availability of information (content) in the society. Legal protection of technological measures (TM) was initially provided with a view to assure the effective protection of intellectual property in the worldwide digital networks. Later on it was claimed that TM could have certain harmful effects on user rights.

Both the DMCA and the copyright directive prohibit the circumvention of TM and the removal or alteration of rights management information (RMI). They also prevent the appearance of markets for circumvention products and services.

For the sake of understanding the conditions and limits for standardisation of DRMS, there is a need to understand which requirements set by these pieces of legislation affects the design and features of DRMS.

In my presentation I will argue that:

The principle of free flow of information is used as a point of departure for outlining certain principles for the elaboration of DRMS. The principle of free flow of information is based on (at least) the following presumptions: 1) The efficient use and dissemination of information is beneficial for the society at large; 2) The free flow of information is a basic feature of a democratic society and is an essential part (and result) of the freedom of thought, expression and communication; 3) Measures has traditionally been taken to secure the free flow of information when elaborating copyright legislation and should be protected also in the future; 4) Unnecessary restrictions on the freedom of action and contract should be avoided. This also implies that information does not necessarily need to be available free of charge. Instead, market mechanisms are the primary means to achieve optimal efficiency of the information market; 5) Market mechanisms are, however, often blind to ethical requirements, which is a reason for legal regulation.

Based on these presumptions regarding the free flow of information the following principles which DRMS should be based on may be outlined:

  1. DRMS should be designed so as to enhance the secure operating environment for transactions with works and other subject-matter.
  2. DRMS should enhance the efficiency of information markets. This requires seamless operating environments and a sufficient security level. The global information markets require a sufficient level of harmonisation at legal, organisational and technological level. Due regard may and should be taken to the level of standardisation and application of DRM when defining the rights and duties of the parties involved.
  3. DRMS should take due regard of user interests and needs, especially so as not to unduly infringe the right of freedom of thought, expression and communication. Accessibility and usability concerns should be addressed.
  4. Considering the fact that the new operating environment and the broad freedom to apply technological measures may inhibit user rights, procedures and practices for establishement of fair conditions and procedures regarding user rights should be developed. This is important so as not to upset the balance between the different interests inherent in copyright, especially with regards to the free flow of information.
  5. Open standards regarding DRMS are to be favoured, since these normally implies large consultation by interested parties and reduces the risk of the measures being anti-competitive in nature. Furthermore open standards and common platforms increases the possibility to create seamless environments and enhances interoperability.