Digital Rights Management and Fair Dealing

Nick Scharf


The recent controversies surrounding Amazon’s removal of George Orwell’s ‘1984’ from Kindle readers , the BBC’s proposal to encrypt Freeview High Definition (HD) content and Microsoft’s permanent ban on Xbox Live users who have modified or ‘chipped’ their consoles have all served to highlight the debate over Digital Rights Management (DRM) and digital copyright. In particular, these incidents highlight the emerging and novel possibility of ‘remote’ content management resulting from an arbitrary decision made by the relevant rights holder(s). The blocking of content to users in particular raises important tensions between DRM and the defences under the fair use/fair dealing doctrine of copyright law which enables users to make use of copyrighted content for certain purposes. The very goal of copyright law, and the fair dealing doctrine contained therein, is the advancement of knowledge and the creation of new works. Copyright’s exclusive rights facilitate this by providing incentives to create, while fair dealing allows users to engage with creative content; thus forming the basis for inspiration and creation of new works. As such, this amounts to recognition of the role existing works play in the creation of new content. However, these divergent interests have been exacerbated by digital technology. The issue of whether DRM is an appropriate method for regulating digital copyright is open to debate. Indeed, when the idea that ‘the answer to the machine is the machine’ was proposed in 1995 , it is questionable whether such prevention of access and use was envisaged. The fair use/dealing doctrine has been crucial in mediating the tension between copyright law and technology , and has an inherent degree of flexibility in its application. Arguably, with DRM, there is no such flexibility and there exists an inherent conflict between the vagueness of the doctrine and the precise nature of the technological code required for DRMs implementation. The aim of this paper is to outline a coherent definition of DRM and provide a brief background of its legislative history and content. Following from this, the doctrine will be analysed in the context of DRM in order to examine whether such defences can continue to operate; specifically regarding the seemingly irreconcilable differences between the inherent nature of the legal doctrine and the technological (and legal) code of DRM.

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