Technological protection measures and copyright 

What is a technological protection measure?

Technological Protection Measures (TPMs) are often used to protect copyright works, for example, through encryption on DVDs. The protection for the TPM 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 TPM. 

Under Art 6(3) of Directive 2001/29/EC (the directive), a TPM is defined as any technology (software or hardware) which restricts access to a copyrighted material without the consent of the copyright holder.

Examples of a TPM 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 console to run games from a given geographical location. 

When is a TPM effective?

The effectiveness of a TPM 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 for a TPM to lose effectiveness over time. For example, in case number R07/1004 (25 May 2007), the Helsinki District Court held that the prevalent availability of the DeCSS code meant the CSS code used to safeguard DVD content could not be viewed as an effective technological measure. The effectiveness of a TPM is therefore considered in relation to the average user at the time of the alleged infringement.

Legitimate by-passing of TPMs

One problem with TPMs is that they may prevent the legitimate use of a copyright work by, for example, a person making use of one of the copyright exceptions. The directive states that in the absence of voluntary measures taken by copyright owners, countries abiding by this law shall take appropriate measures to ensure that copyright owners make the copyright work available to legitimate users by providing access past any TPMs.

A number of problems can, however, can arise with these measures:

  • In the absence of voluntary measures

As long as there is some attempt to allow legitimate users of the work access through the TPM, the state generally does not have to get involved. This can lead to the TPM owner creating a system that covers most, but not all, of the legitimate users, which would in turn exclude legitimate users of the copyright work from accessing it. This is clearly not what the law intends as, in a way, it adds additional protection to works which may not deserve that level of protection. It also has the potential to give the copyright owner more power over who has access to their work above that which copyright law normally allows. 

  • Timescale

Article 6(4) of the directive does not make mention of any time constraints for the access to be granted, and likewise there are no time constraints on when the member state should get involved to sort out any abuses of a TPM. Further, there are no guidelines as to how appropriate the voluntary measure must be. This leaves scope for TPM owners to provide what ostensibly looks like a usable circumvention for legitimate users, while actually taking longer than necessary to provide access and possibly even refusing access where it should be granted. 

Complaints procedure

Under UK law, if the TPM owner does not provide for the ability to by-pass the TPM a person with a legitimate right to access the protected material may a ‘notice of complaint’ to the Secretary of State.  

To be eligible for the complaints process the following conditions must apply:

  • The work complained about must be a work that is protected by copyright (but is not a computer program).
  • The complainant must have lawful access to the work. For example, they may own a lawful copy of the work having bought it or been given it as a gift.
  • The TPM must be preventing the claimant from benefitting from one of the eligible exceptions.