Licence to lock: the overextension of technological protection measures

ABSTRACT

As digital goods gain traction and technological advancements that enable and facilitate piracy develop, technological protection measures (‘TPMs’) have become indispensable tools for content-producers to safeguard their intellectual property (‘IP’) rights. Like other intellectual property laws, there is an inherent tension in TPM protection provisions between safeguarding the content-producers’ IP rights and the consumers’ collective legitimate right to access works. TPM protection may be overly broad in two major ways. Firstly, by an inefficacious transposition of the rights and authority requirements, which stems from Article 11 of the WIPO Copyright Treaty. Secondly, by an overly-broad protection of TPMs in domestic legislation. This article argues that circumventing TPMs should only be prohibited where this would also involve an infringement of existing IP rights. The first part of the article discusses the proper ambit of TPM protection provisions by comparing the scope of such laws in Australia and Singapore, concluding that the Singapore position effectively protects the content-producer's IP rights without extending the de facto enforceability of TPM rights. The second part considers the practical implications of TPMs, including how they affect parallel imports and related practices such as geoblocking, virtual private networks (‘VPNs’) and streaming.

KEYWORDS:

• Technological protection measures
• comparative law
• international Treaties

Acknowledgements

I would like to thank Elizabeth Ng, Saw Cheng Lim and the anonymous reviewers for their insightful comments.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 To illustrate, Person Z by way of a computer software resets the region code of a DVD so as to watch a film that has yet to be released in his country. Person Z may be in breach of the TPM protection provision via actual circumvention of a TPM, while the creator of the computer software may be liable for providing the software to circumvent to TPM.