Academic

Akester on Empirical Assessment of Conflicts Between DRM & Free Expression

By Lawrence Solum

Patricia Akester (University of Cambridge - Faculty of Law) has posted Technological Accommodation of Conflicts between Freedom of Expression and DRM: The First Empirical Assessment on SSRN. Here is the abstract:

Copyright incentives and rewards to producers of works have been able to exist alongside other values, such as freedom of expression. However, changes in the way information products are being disseminated raises questions as to whether those values remain compatible with the new modes of dissemination.

So far, studies devoted to digital rights management (DRM) and copyright exceptions have noted, theoretically, its legal implications.

This research filled an existing gap by unveiling, through empirical lines of enquiry, (1) whether certain acts which are permitted by law are being adversely affected by the use of DRM and (2) whether technology can accommodate conflicts between freedom of expression and DRM - linking, thus, policy conclusions to empirical findings.

The survey concluded that some beneficiaries of privileged exceptions are being adversely affected by the use of DRM and practical solutions are required.

Thus, it is proposed that, in the short term, with the help of the empirical findings and recommendations of this study, the EC Commission submits a proposal for two amendment of Article 6(4) of the Information Society Directive, as follows:

(1) A definition of the expression ?appropriate measures? should be inserted in Article 6(4) of the Information Society Directive, stating that for the purposes of that Directive such measures require the establishment of a procedure to enable expeditious access to works by beneficiaries of privileged exceptions, leading to the creation of standardized access to works portals across EC Member States.

The existence of access to works portals would be made possible by a DRM deposit system, according to which the means to enable beneficiaries of privileged exceptions to benefit from them would be deposited and made available through access to works portals, in specified circumstances.

(2) It should be added to Article 6(4) of the Information Society Directive that where access to works by beneficiaries of privileged exceptions is not facilitated, the protection of privileged exceptions (given their connection to core freedoms) prevails over the protection of DRM, even where works are supplied online on agreed contractual terms.

Full post as published by Legal Theory Blog on September 11, 2009 (boomark / email).