Should the use of DRM systems to protect lawful consumption of digital works remain absolute in scope? : TILTing perspectives 2017 Regulating a connected world, 17-19 May 2017, Tilburg, Netherlands

From a strict technological perspective copyright holders can today truly enforce their rights ex ante by creating closed environments in which the consumption of digital works is strictly controlled by DRM systems. The scope of such control is however usually attributable to a given business model rather than legal compliance because the copyright framework (and particularly Art. 6 InfoSoc Directive or Art. 11 WCT) does not regulate the use of self-enforcement technology other than generally prohibiting others from circumventing it. Although such protection of DRM systems is, arguably, needed to deter piracy and encourage rightholders to digitally distribute content, once a digital work has been acquired from a (legitimate) source, there is little to nothing that an acquirer (consumer) can do to arrange consumption around their own preferences. Instead, their consumption is subject to complicated, sometimes equivocal, terms regulating the legal relationship and device limitations which are imposed by the DRM system. The reasonable expectations of acquirers can often get misaligned with what they are actually allowed to do (both legally and technologically) and potential remedies available vary across the EU. Copyright law, both international and EU, does currently little to address this and to maintain a balance between the legitimate interests of rightholders and the legitimate interests of bona fide digital consumers (note for example the discretionary character of Art. 6(4) paragraph 2). Against this background is a framework of consumer protection law whose underlying aim is indeed to maintain a balance between contracting parties where one is in a clearly weaker (bargaining) position. The intersection of copyright and consumer protection law is however especially problematic because not only is there insufficient, or a general lack of subject-specific, legislation but, high costs of litigation in conjunction with small sums relating to disputes do not incentivise pursuing legal action. This potentially creates market failures on many levels and reinforces the unrestricted use of DRM systems, even though certain informational requirements were introduced by the Consumer Rights Directive in 2011. Although the EU Commission's copyright reform (DSM Agenda)in this context is commendable to the extent that it purports to encapsulate digital consumers into the consumer protection framework (proposal for a Directive on the supply of digital content) and clearly fill an existing gap, the question that transpires is whether the response ought lie in the 'simple' modernisation of consumer protection law only or instead in the clearer alignment of consumer protection law and copyright law (such as is indirectly done in the current proposal for a Regulation ensuring the cross-border portability of online content services), for example through more direct regulation of the use of DRM systems. The paper addresses consumer expectations and the change in the consumption pattern before the arrival of the 'digital market proper', the functioning and use of DRM systems in the 'digital market proper', the regulation of the use of DRM systems in copyright law, and finally the EU Commissions recent proposals in light of some of the failures of the legal framework concerning the use of DRM. See generally: Kubesch, A.S., Wicker, S., Digital Rights Management: The Cost to Consumers (2015) 103(5) Proceedings of the IEEE 726 Dussolier, S., The protection of technological measures: Much ado about nothing or silent remodelling of copyright? In Dreyfuss, R.C. and Ginsburg, J.C. (eds), Intellectual Property at the Edge. The Contested Contours of IP, Cambridge University Press (2015), pp.253-268 Loos, M., et. al., Analysis of the applicable legal frameworks and suggestions for the contours of a model system of consumer protection in relation to digital content contracts, Final Report Digital Content Contracts for Consumers, CSECL, IViR and ACLE, 2011, Chapter 6 Bradgate, R., Consumer Rights in Digital Products, Research and Analysis Report, Department for Business Innovation and Skills, 2010 European Commission, Staff Working Document, Report to the Council, the European Parliament and the Economic and Social Committee on the application of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society SEC(2007) 1556 Guibault, L., et. al., Study on the Implementation and Effect in Member States’ Laws of Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society, IViR, 2007, Chapter 4 Helberger, N., Hugenholtz, P. 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