“Should Law Protect the Technologies that Protect Copyright?” in Information Ethics in an Electronic Age: Current Issues in Africa and the World, ed. Thomas Mendina and Johannes Brtiz (Jefferson, North Carolina: McFarland Press, 2004.
This chapter provides a critical analysis of anti-circumvention legislation with a special focus on the extent to which the legal protection of copyright-protecting technologies might be said to undermine traditional copyright policy. While Technological Protection Measures (TPMs) hold the promise of ensuring legitimate access to digital work, when coupled with the ability to set licensing terms, TPMs provide copyright owners a much greater degree of control over work than copyright law historically allowed. After establishing the philosophical context of the protection of TPMs, I survey the four classes of technological protection: (i) general access control measures, (ii) limited access control measures, (iii) use control measures, (iv) anti-device control measures. Then I look at three available means copyright owners have of ensuring authorized access to their works: TPMs, existing copyright law, and the law of contract. I then review some of the US case law to illustrate the social consequences of adding as a fourth layer of legal protection (the Digital Millennium Copyright Act). I conclude the chapter by briefly examining how the American style of legal protection for TPMs could upset copyright law’s delicate balance between the private rights of creators, copyright owners, and the public’s interest in using works subject to copyright and suggest that there are potentially serious implications for public access to information, consumer privacy and freedom of expression.
