Copyright Anti-Circumvention & Free Trade

Abstract

The article examines the contrasting implementation of Intellectual Property Organization (WIPO) Internet Treaties’ anti-circumvention obligation and its free trade implications. While the US Digital Millennium Copyright Act (DMCA)’s implementation established a brand new exclusive right of access control for right holders, the EU’s InfoSoc Directive attempted to balance right holder’s access control with interests of fair use beneficiaries. Examination of copyright’s private right nature shows access control in anti-circumvention finds no support from traditional theory, and actually turns copyright into a negative right in rem. Further examination on copyright limitations and exceptions shows that the anti-circumvention mechanism sits right at the centre of the dynamics between the idea-expression dichotomy, and the tension between rights and obligations. Critical examination of the circumstances of treaty conclusion of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and Internet Treaties respectively shows that neither framework’s settlements have successfully balanced rights and obligations, or private rights and public access. New development of regional trade fragmentation from Trans-Pacific Partnership (TPP), to the Anti-Counterfeiting Trade Agreement (ACTA), to the Regional Comprehensive Economic Partnership (RCEP), brings the anti-circumvention diversity further into a terrain of uncertainty. The article concludes with a call for attention to access control’s negative impact on public information access and the balance of rights and obligations.