Technological Protection Measures and Copyright 

What is a Technological Protection Measure

A technological protection measure is a system put in place by the owner of a piece of copyright material which can be used to restrict access to the piece of copyright material. This is protection for a copyright work in addition to the standard legal copyright protection. It is an offence to by-pass the technological protection measure without permission. The protection for the technological protection measure under law is stand alone and therefore infringing it is an offence in addition to any copyright infringement that may occur after by-passing the technological protection measure. 

The legal definition of a technological protection measure is given under Article 6(3) Directive 2001/29/EC of the European Parliament otherwise known as the ‘Infosoc Directive’. This basically states that a technological protection measure is any technology (software or hardware) which restricts access to a copyrighted material without the consent of the copyright holder.

Examples of a technological protection measure could range from a piece of software requiring a password to gain access to a website containing scientific papers to a chip in a games console that only allows that consol to run games from a given geographical location. 

The strict definition requires that the technological protection measure is effective, meaning that it not easily circumvented. Bypassing a technological protection measure is an offence in addition to any copyright infringement carried out.

When is a technological protection measure effective?

The effectiveness of a technological protection measure will vary depending on who it is meant to keep out. For example a computer hacker will find it easier to bypass a software security system than the average computer user. It is also possible that a technological protection measure looses effectiveness over time. This is obvious when considering the amount of computing knowledge the average person in the country will have. Case law has shown that the courts will consider both these as valid arguments (for example Helsinki District Court, 25 May 2007 case number R07/1004). The conclusion that has to be drawn is that the effectiveness of the technological protection measure is considered in relation to the average user at the time of the alleged infringement.

Does a technological protection measure have to protect a valid copyright work?

There is an inherent problem with the wording in Article 6(3) of the Infosoc directive in that a number of approaches can be taken in interpreting it. If the technological protection measure had stand alone rights against bypassing, it could essentially lead to protection for subject matter that does not warrant protection as such, by erecting a fence around the subject matter that cannot be overcome. This doctrine is known as Absolute protection, and obviously leads to unwanted effects in the exploiting of technological protection measures 

Another approach interprets Article 6(3) of the Infosoc directive as requiring the technological protection measure to be protecting a valid copyrightable work. This is known as the Copyright Nexus Approach. In the UK this position is still uncertain, however, the Nexus approach was successfully tried in the case Sony v Ball in 2004 

Legitimate by-passing of technological protection measures

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For more information on:

  • “In the absence of voluntary measures” 
  • Timescale