DRM Interoperability and Intellectual Property Policy in Europe

Abstract

Apple's dominating music downloading service iTunes Music Store has brought interoperability debate once again on the table. To be sure, Apple's music downloading service is just one example of a closed Digital Rights Management system controlled by a single company or organization in a given market. For example, the so-called copy protected CDs have typically had proprietary DRM systems meaning that the discs can be played only on record label-specific software players. Interoperability is also a matter of degree. In some cases interoperability information is available but only under restrictive and somewhat expensive licensing terms. This is for example the case of DVD format, where DVD Copy Control Association controls the necessary information to produce compatible DVD players. Arguably, proprietary DRM systems are in general problematic to both consumers and competitors. This article analyses DRM interoperability in the light of EU copyright, competition and consumer laws. First, it is asked why copyright directive lacks an explicit interoperability provision and to what extent the directive, however, may allow the development and marketing of compatible devices. Then, the interoperability provisions in the 1991 software directive and their applicability to DRM systems are discussed. The situation is briefly compared to the United States and the possibility of national copyright policies is mentioned following the French example. Second, the article considers EC competition law as a means to enforce interoperability in DRM systems. Analogies are drawn from existing case law. Third, the role of consumer protection regulation in the DRM interoperability debate is discussed following the lead of Scandinavian consumer protection authorities. In the end, the article discusses whether there is a need to recognize interoperability as a general principle in the EU intellectual property policy and what measures could be used to strengthen such policy. Competition policy approach is suggested to provide a formal legal doctrine that could be in the long term implemented in intellectual property laws. In the meantime, consumer protection law can be used as a transitional tool for opening up the most far-reaching DRM systems.