Technological Protection Measures
| Autor | Nicolo Zingales |
| Páginas | 303-304 |
303
Technological Protection Measures
91 Technological Protection Measures
Nicolo Zingales
Due to the easy duplicability of information transmitted in digital
form, copyright holders regularly resort to technical protection
measures (TPMs), such as encryption-based paywalls, to prevent acts
which are not authorized by the right holder of any copyright or any
right related to copyright. The legal system reinforces this type of
protection by explicitly outlawing not only any acts of circumvention
of TPMs, but also the manufacturing and sale of devices which have
the primary purpose or effect of enabling such circumvention. In
the EU, in particular, Member States are required as part of the EU
Copyright Directive to provide adequate legal protection against the
knowing circumvention of any “effective technological measures”,
thereby referring to any technology, device or component that, in
the normal course of its operation, is designed to prevent or restrict
acts, in respect of works or other subject-matter. According to the
Directive, technological measures shall be deemed “effective” where
the use of a protected work or other subject-matter is controlled
by the rightsholders through application of an access control
or protection process, such as encryption, scrambling or other
transformation of the work or other subject-matter or a copy control
mechanism, which achieves the protection objective. Furthermore,
adequate legal protection is required against the manufacture or
sale of any device which (a) has the purpose of circumventing a
TPM; (b) has a limited commercially significant purpose other than
such; or (c) is primarily designed to do so.
There are two critical aspects of this type of legal protection: first,
although it is intrinsically related to copyright, it is also independent
from it- specifically, any unlawful circumvention constitutes a breach
regardless of whether it led to an actual copyright infringement.
Second, it may interfere with the ability of users of copyrighted
works to benefit from exceptions and limitations that are specifically
provided in copyright legislation. In principle, the continued application
of these exceptions and limitations is guaranteed through article 6 (4)
of the Directive, which requires Member States to provide adequate
measures to that end. However, Member States are only required
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