To Observe and Protect? How Digital Rights Management Systems Threaten Privacy and What Policy Makers Should Do About it

INTELLECTUAL PROPERTY AND INFORMATION WEALTH: ISSUES AND PRACTICES IN THE DIGITAL AGE, VOLUME ONE: COPYRIGHT AND RELATED RIGHTS, Peter Yu, ed., Praeger Publishers, 2007

26 Pages Posted: 20 Nov 2008

See all articles by Ian R. Kerr

Ian R. Kerr

University of Ottawa - Common Law Section

Abstract

The author begins the chapter by distinguishing between technological protection measures (TPMs) and digital rights managements (DRMs) systems, examining how such technologies are used to enforce corporate copyright policies and express copyright permissions imposed by a DRM through a registration process that requires purchasers to hand over personal information. Given DRM's extraordinary surveillance capabilities, the author argues that anti-circumvention laws must contain express provisions and penalties to protect citizens from organizations using TPMs and DRMs to pirate personal information, engage in excessive monitoring, and preclude people from exercising their right to access and control personal information. The author presents the view that any law which protects surveillance technologies used to enforce copyright must also protect people's privacy. Such laws must contain express provisions and penalties that protect citizens from organizations using TPMs and DRMs to engage in excessive monitoring or the piracy of personal information. In determining an appropriate balance, the author introduces three public policy considerations: (i) the Anonymity Principle; (ii) Individual Access; and (iii) Freedom From Contract. The author concludes with three corollary recommendations: (i) include an express provision prohibiting the circumvention of privacy by TPM/DRM, notwithstanding license provisions to the contrary; (ii) include an express provision stipulating that a DRM licence is voidable when it violates privacy law; and (iii) include an express provision permitting the circumvention of TPM/DRM for personal information protection purposes. These recommendations provide a set of counter-measures necessary to offset the new powers and protections afforded to TPM and DRM.

Keywords: technological protection measures, digital rights managements, surveillance, copyright, privacy

Suggested Citation

Kerr, Ian R., To Observe and Protect? How Digital Rights Management Systems Threaten Privacy and What Policy Makers Should Do About it. INTELLECTUAL PROPERTY AND INFORMATION WEALTH: ISSUES AND PRACTICES IN THE DIGITAL AGE, VOLUME ONE: COPYRIGHT AND RELATED RIGHTS, Peter Yu, ed., Praeger Publishers, 2007, Available at SSRN: https://ssrn.com/abstract=1303203

Ian R. Kerr (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada
613-562-5800 (Phone)

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