Approximation and DRM: Can Digital Locks Respect Copyright Exceptions?

Technological Protection Measures (TPMs) are the hard core of Digital Right Management (DRM) systems, which enforce the rights of the copyright owner in the digital environment. Copyright scholars expressed concerns that TPMs do not comply with copyright exceptions and limits (Hugenholtz 2000; Koelman 2000; Dusollier 2003; Westkamp 2004).A few solutions to this problem have been proposed in the field of internet services (Mulligan and Burstein 2002; Erickson 2003; Cohen and Burk 2001; Sobel 2003). However, none of these proposals is tailored to optical disks (CDs and DVDs). Yet, the report "Digital Broadband Content: Music" of the OECD (2005) states that TPMs implemented on optical disks hinder copyright exceptions more often than those applied to internet services. Moreover, in Europe the Copyright Directive exempts TPMs implemented on internet services from compliance with copyright exceptions. This paper therefore outlines possible ways to implement TPMs on optical disks in Europe, in order to achieve their compliance with a list of fundamental copyright exceptions, as identified by previous research (Favale 2008).