Digital Rights Management and Fair Use
Nick Scharf · 2010
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 the past, DRM measures have been embedded in the content they are designed to protect; however, importantly, these incidents highlight the emerging and novel possibility of 'remote' content management resulting from an arbitrary decision made by the relevant right holder(s). The blocking of content to users in particular raises important tensions between the application of DRM and the fair use defences under copyright law which enable users to make use of copyrighted content for certain purposes. Fair use is dependent on access to content and is serves to facilitate the dissemination of information and ideas that arise from interacting with copyrighted works. Interaction, by its very definition, involves making 'use' of a work and increasingly, this use now occurs on networks. A commonly pleaded goal of copyright law, and the fair use 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 use 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 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, no such flexibility exists and there is an innate conflict between the vagueness of the doctrine and the precise nature of the technological code required for DRMs implementation. The overall aim of this article is to demonstrate how the current implementation of DRM can have a negative effect on users. Firstly, a definition of DRM will be proposed, followed by a brief outline of its scope and rationale. Following this, the fair use doctrine will be examined in light of DRM and having regard to the economic underpinnings of copyright law; specifically adopting a market-based approach. Finally, some practical problems of effectively implementing DRM will be highlighted.