Tenth Annual Student Human Rights Conference
Beyond Words: Freedom of Expression and its Contemporary Challenges
Saturday 14th March 2009
Panel Theme:
Media and New Technologies
Paper Title:
Private Power over the Information Environment as a Threat
to Freedom of Expression
Author:
Margaret Devaney
This paper will discuss technological development as a risk to freedom of expression. In
particular the threat which certain technological developments pose to the right of the
public to receive information is at issue. Traditionally, the right of the public to receive
information for specific purposes has been reflected in copyright law. Thus, in certain
situations use can be made of copyrighted material without requiring permission from the
copyright holder (fair use). Examples of situations in which these fair use rights arise
include use for illustration, for teaching or non-commercial scientific research, use by
people with a disability, use in connection with reporting of current events and fair
practice use of quotations for purposes such as criticism or review. However, in recent
years, technological developments have begun to threaten established fair use rights.
Copyright holders, due to technological developments including the advent of digital
copying, have begun to use technological protection measures (TPMs) to provide an extra
layer of protection against copyright infringement. The use of such measures as part of a
larger set of technological tools that not only protect the content but also monitor
consumer behaviour and facilitate payment for content usage has become known as
‘digital rights management’ (DRM). Most DRM systems do not make sufficient allowance
for the fair use rights of users.1 Moreover, their use is legally protected as the World
Intellectual Property Organisation (WIPO) has adopted treaties requiring signatory
nations to provide stronger statutory protections for DRM. In Europe, the Information
Society Directive was enacted in response.2
Article 6(1) of that Directive states that Member States must provide adequate legal
protection and effective legal remedies against the circumvention of technological
protection measures which the person concerned carries out with the knowledge or with
reasonable grounds to know that he is pursuing that objective. This goes beyond the
Fair use in the offline world does not require authorization from the copyright holder, does not require the
payment of compensation to the copyright holder and is mostly anonymous. However, existing DRM systems do
not allow fair use rights to be exercised in the same way as in the offline world.
2
Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the
Information Society O.J. L 167 22/06/2001 P. 10-19.
1
Author: [Margaret Devaney]
Institution: [Law Reform Commission of Ireland]
Tenth Annual Student Human Rights Conference
Beyond Words: Freedom of Expression and its Contemporary Challenges
Saturday 14th March 2009
terms of Article 11 of the WIPO Copyright Treaty which it sought to implement by not
making an exception, as the WIPO treaty does, for acts of circumvention which are
permitted by law. Moreover, Article 6(2) of the Directive also prohibits secondary acts
such as “the manufacture, import, distribution, sale, rental….or possession for
commercial purposes of” such devices. Thus far therefore, the fair use rights of the user
appear to be ignored by the Directive if a technological protection measure is employed
by the copyright holder. Article 6(4) attempts to redress this balance by providing that
Member States should promote “voluntary measures” taken by right holders to
accommodate fair use rights provided for in national law and that in the absence of such
measures, Member States are obliged to take “appropriate measures” to ensure that
users can benefit from such fair use rights by modifying an implemented technological
measure or by other means. While this provision seems at first glance adequate to
protect users’ rights to receive information, it is unclear what the provision envisages
either by “voluntary measures” or by “appropriate measures”. The term “voluntary
measures” may leave copyright holders with room essentially to contract around the
protections which the Directive is meant to supply. Moreover, the Directive provides little
guidance to Member States on what measures they should take should the copyright
holder’s voluntary action prove inadequate or on how to ascertain whether the
protections provided are adequate or not. Moreover, Article 6(4) applies only to Article
6(1) and not to Article 6(2). As a result while Member States must ensure the possibility
for users to rely on specific copyright exceptions, circumventing devices or services are
still not permitted. Thus, the practical means by which a user might exercise his rights
remains outlawed. Thus, there is a distinct danger that Article 6 could allow
technological protection measures to override fair use, thus threatening the right to
freedom of expression and other related rights such as the right to education.
However, whether Article 6 of the Directive could be challenged on the basis of Article 10
of the European Convention on Human Rights (ECHR) is debatable. Some academics take
the view that the European Court of Human Rights will be likely to favour freedom of
expression where copyright holders use TPMs to protect their work, without assuring that
the beneficiaries of the exceptions listed in Article 6(4) of the Information Society
Directive are able to benefit from them, especially where users are not able to take
advantage of existing exceptions that would grant them access to political, artistic,
literary or journalistic speech. Another related right which could perhaps be coupled with
Author: [Margaret Devaney]
Institution: [Law Reform Commission of Ireland]
Tenth Annual Student Human Rights Conference
Beyond Words: Freedom of Expression and its Contemporary Challenges
Saturday 14th March 2009
the freedom of expression right to challenge the Information Society Directive is the right
to participate freely in cultural life, to enjoy the arts and to share in scientific
advancement and its benefits.3 Contracts which purport to override fair use rights have
been used by some copyright holders in addition to or as an alternative to TPMs and such
contracts could perhaps also be challenged on the basis of these rights.4
From a legal perspective therefore, TPMs which do not allow users to exercise their fair
use rights could perhaps be challenged under certain human rights doctrines, principally
Article 10 ECHR. From a technological perspective, proposals have also been made as
regards ‘fair use friendly’ DRM systems, which would for example take into account user
input and would ensure user anonymity.5 It remains to be seen whether copyright
holders will embrace ‘fair use friendly’ DRM systems. While many have called for changes
in the anti-circumvention legislation to force copyright holders to take into account users’
fair use rights, the move towards ‘fair use friendly’ DRM systems may well have to be
market-led. Thus, increasing public awareness of the issue may help in changing
copyright holders’ business models in a way which ensures that private power over the
information environment does not threaten users’ right to receive information and thus
their right to freedom of expression.
This right is contained in both Article 27 of the Universal Declaration on Human Rights (UDHR) and Article 15
of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
4
See Lucie Guibault, Copyright Limitations and Copyright: An Analysis of the Contractual Overridability of
Limitations on Copyright (The Hague: Kluwer Law International, 2002)
5
See Timothy K. Armstrong, ‘Digital Rights Management and the Process of Fair Use’ (2006) 20 Harv. J.L. &
Tech. 49
3
Author: [Margaret Devaney]
Institution: [Law Reform Commission of Ireland]