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Pushing the envelope : digital rights management and the limits of copyright

English Abstract

Copyright grants the intellectual creator or author certain rights or privileges, some of which inalienable such as moral rights, over the exploitation of his or her creative work. The purpose of the system of exceptions and limitations of copyright is to bring about a balance between the interests of the copyright holders and copyright users. DRM or Digital Rights Management can disrupt that balance. When digital creative content is protected by technological protection measures, and in its turn technological protection measures are protected by law against circumvention, copyright users who would normally rely on an exception or limitation to copyright to access or use a copyrighted work must seek for alternatives. 1 In the words of PAMELA SAMUELSON “DRM has more than one potential relationship with the law: it can enforce legal rights; it can displace legal rights; it can override legal rights; and the law can constrain the design of DRM”. 2 DRM or Digital Rights Management are remarked as a reinforcement of the exclusivity granted to authors. Traditional exceptions and limitations inherent to copyright were not construed to thrive in a digital environment, and their enforcement may be impaired or denied by DRM systems and technological protection measures. If, for example, there is an original work that belongs to the public domain, and the access or use of such in the public domain is restricted by technological 1 BENČOVÁ, Jana. "DRM and Consumer Protection in E-commerce Transactions: A Comparative Study of the EU and the US Legal Framework." (2015), pp. 17. 2 SAMUELSON, Pamela, “Digital Rights Management (and, or, vs.) the Law” Communications of the ACM 46.4 (2003), pp. 45. 2 protection measure recent case law in both the United States (hereinafter “US”) and European Union (hereinafter “EU”) argue that that technological protection measures might, under certain circumstances, be circumvented. However, one thing is a “right to circumvent”, 3 a completely different thing is the capacity or ability of the beneficiary to circumvent the impeding technological protection measure. Even more so as in the jurisdictions we propose to analyze in the present thesis, the manufacture, sale, distribution and any other acts that promote the dissemination of circumvention methods, tools or devices are prohibited. Hence, the aforesaid statement that technologies, tools and systems that comprise DRM can be regarded as an instrument to increase of exclusivity of copyright holders. As a consequence to the flexibility provided by these technological advances, copyright holders have also used DRM, and the new forms of control over the use of the copyrighted work that those technologies allow, as enforcer of contract terms entered into with copyright users or copyright consumers. This combination of code and contract lead scholars like P. BERNT HUGENHOLTZ to question, in 1999, if copyright could not be made redundant by an association of user licenses and technological measures. 4 In this thesis, I will adopt a comparative approach. A comparative approach will allow to seek out how different legal systems, subject to different culture backgrounds and different experiences, have resolved a problem which, by its nature, is global. As object of comparison I have elected the jurisdiction of the US and the EU, for their noted relevance in the field of copyright production, and also the jurisdiction of the Macau Special Administrative Region of the Peoples’ Republic of China (hereinafter “Macau SAR”). The choice of Macau SAR as object of comparison is justified not only because it is the local jurisdiction, but also in light of the recent declared support to the creative industries by the Macau SAR Government, in its attempt to diversify the gaming based economy of the SAR. The author hopes that this thesis may in some serve these industries by providing them with the proper legal tools, whit which they can be expected to thrive. 3 YU, Peter K. "Region codes and the territorial mess." Cardozo Arts & Entertainment Law Journal 30 (2012), pp. 245. 4 HUGENHOLTZ, P. Bernt. “Code as code, or the end of intellectual property as we know it.” Maastricht J. Eur. & Comp. L. 6 (1999), pp. 308. 3 Therefore, by comparing how the copyright legal systems of the US, the EU, and Macau SAR have embraced DRM and how has their case law and lawmakers balanced the interest of copyright holders and copyright users in the digital environment, in particular in cases where DRM implementation and protection have eroded some of the rights copyright users would be able to exercise under a traditional or analog copyright frame work. We hope to conclude whether or not DRM and the legal framework supporting DRM have succeeded in reshaping copyright from what was perceived in an analog environment to what it is now and will continue to be in a digital environment. In Chapter II we will begin by briefly stating the importance of copyright exceptions and limitations as the tool to promote the progress of science and the useful arts by fostering creative expression. This chapter will provide a more in depth analysis of the Three Step Test, as a benchmark to the exceptions and limitations of copyright. Proceeding afterwards to a cursory breakdown of the exceptions and limitations to copyright in place in the elected legal systems. In an attempt to historically position DRM as tools in the fight against copyright infringement and the concepts that are identified over as analog copyright and digital copyright, Chapter III introduces the historical developments in the fight carried out by copyright holders against the infringement of their economic (and moral) rights first in an analog age and recently in a digital, electronic and on-line environments until the inception of DRM as technological form of copyright enforcement and protection. Chapter IV will describe how DRM were implemented in the protection of copyright, and, based on the nature and function of the DRM technologies and the legal protection that was endued over technological protection measures and digital rights management systems, attempt to establish a definition for DRM. In Chapter V we will analyze the anti-circumvention provisions present in the World Intellectual Property Organization Internet Treaties and the result of their transposition into the law of the Contracting Parties, specifically the Digital Millennium Copyright Act of the US, and the 4 Information Society Directive of the EU, and, in a cart before the horse fashion, 5 the 2012 revision of the Macau SAR Copyright and Related Rights Ordinance. 6 Concluding with a small commentary on the penalties established for copyright infringement and anti-circumvention violations. In Chapter VI we will address how the legal systems of the US, the EU, and Macau SAR, either by recourse to case law or statutory provision, have managed the balance of interests of copyright holders and copyright users in the digital environment and in light of the implementation of restrictive DRM by copyright holders. Finally, in Chapter VII we will present the conclusion of the present thesis, where we hope to provide a meaningful insight to subject matter of the thesis, if DRM and the legal protection that furnished to technological protection measures have “pushed the envelope” of exceptions and limitations that defined copyright.

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Xavier, Daniel Jorge Martins


Faculty of Law




Digital rights management

Digital rights management -- Macau

Copyright and electronic data processing

Copyright and electronic data processing -- Macau


Neuwirth Rostam J.

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