Technological Protection Measures: Part II - the Legal Protection of Tpms

Abstract

This is the second of two companion Studies prepared for the Copyright Policy Branch of the Department of Canadian Heritage.These Studies address a range of policy considerations associated with the use of technological protection measures (TPMs) as a means of extending copyright in digital environments. The Studies also investigate the various policy choices implicated in the decision to provide legal protection to TPMs in the context of Canadian copyright law. The objective of the first Study was to furnish a clearer understanding of what TPMs are, how they are used, and what their circumvention might entail. In the second Study, the authors provide a policy analysis of the use and legal protection of TPMs in the context of the decision regarding whether and/or how Canada might choose to implement the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT). The second Study commences with some basic background, including the reiteration of a few key points from the first Study. Part 3 provides a conceptual analysis of the basic elements stipulated in the WIPO mandate to provide legal protections to TPMs. The analysis includes an enumeration of possible interpretations of the conditions for compliance set out in the relevant WCT and WPPT provisions. In Part 4, the authors lay the groundwork for the ensuing policy analysis by briefly offering some key philosophical considerations underlying Canadian copyright law. The analysis in Parts 3 and 4 provide the context for a broader discussion in Part 5 of various considerations that might assist Canada in determining the appropriateness of affording legal protection to TPMs at this point in time. In Part 6, the authors examine in detail four classes of legal measures that might be implemented pursuant to WCT and WPPT to protect TPMs. The advantages and disadvantages of each are explored, with particular emphasis on their potential effects and interaction with copyright law. Part 7 provides a critical analysis of the implementation of legal measures to protect TPMs in various countries. Finally, Part 8 offers a number of concluding remarks. The authors end by stating that the best strategy for maintaining a balanced copyright law is to take an approach that best preserves the status quo until such time as the cultural norms surrounding the use of these technologies provide a clear indication of the need for reform, one way or the other.

Keywords: technological protection measures, TPM, copyright law