Anticircumvention Laws

Abstract

This chapter provides a broad overview and analysis on anticircumvention laws in the U.S. and Europe. It underscores one persistent question of crucial importance concerning the nature of anticircumvention regulation and its place within the legal fabric of copyright. The statutory anticircumvention texts reviewed in this chapter do not provide straightforward answers to the nexus problem, that is, the relationship between anticircumvention bans and conventional copyright infringement.

Some courts have been trying to classify anticircumvention laws within the more established framework of copyright protections and violations. In parallel, and in light of such judicial attempts and the law they were making, many observers identified the classification/nexus problem as a Punctum Archimedis that reflects on virtually every aspect of the attempts to analyze anticircumvention laws as copyright regulation.

Unlike the teleological approach discussed in this chapter, the access-right model (chapter 8 infra) will attempt to confront the challenge not by denying the access-based nature of digital copyright. Instead, the idea is to achieve a better match between copyright protection and the relentless market transition to access-based exploitations while adding the necessary safeguards. This model will endorse the legal and technological shift toward an access-right regime in a very real and radical sense, yet in combination with introducing new conditions to the enforcement of exclusivity over access-conducts and communication-conducts.

Keywords: Anticircumvention Law, Access-Right, Copyright