Digital Copyright, 'Fair Access' and the Problem of DRM Misuse
Boston College Intellectual Property & Technology Forum (2012)
36 Pages Posted: 12 Oct 2013
Date Written: November 27, 2009
The advent of the digital age and the wide diffusion of copyrighted works over the Internet have brought about a drastic challenge to the pre-existing rules and legal standards governing the exchange of information. This article points out one of the ways the development of these new technologies has altered the boundaries of copyright, specifically by enabling copyright holders to strategically expand the scope of protection through the strategic use of Digital Rights Management (hereinafter, DRM). After a brief overview of these technologies and their contribution to the development of online markets for copyrighted works, the article discusses the risks of using DRM as a means of stretching the legal protection conferred by Intellectual Property law.
As a potential solution to such problem, the article looks at the role of the courts and the approach embraced vis a vis specific cases of abuse of DRM in the copyright context. In carrying out this analysis, some considerations are made on the pro-competitive benefit that may derive from these practices, and thus the different outcome that would result from an application of a pure antitrust scrutiny to the same situation. The article then concludes recommending a two-fold approach to the assessment of the legality of such practices, where antitrust analysis and IP principles are intermingled, proposing a legal test to facilitate this complex assessment.
Keywords: DRM, Copyright, IP Misuse, Antitrust
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