exceptions provided for in UK and international copyright law.[1]
The deployment of DRM systems as envisaged by the Information Society Directive not only presupposes the application of technological protection measures to protected works, but it also entails the use of contractual agreements spelling out the acts that users are permitted to accomplish with respect to the licensed material. The digital network’s interactive nature has created the perfect preconditions for the development of a contractual culture. Through the application of technical access and copy control mechanisms, rights owners are capable of effectively subjecting the use of any work made available in the digital environment to a set of particular conditions of use.[2] While the Directive contains extensive provisions on the protection of TPMs and rights management information, it fails to deal with the use of contracts in the context of DRM systems or otherwise. At most, the Directive contains a few statements encouraging parties to conclude contracts for certain uses of protected material. Since neither the Directive nor the relevant international instruments on copyright and related rights, such as the WCT and the WPPT, prescribe any rules on the subject, the specific regulation of licensing contracts has been left to the Member States. Thus, the contractual framework generally remains voluntary and market-driven, knowing that the principle of freedom of contract constitutes a cornerstone of European contract law.
In effect, the licence terms often act in conjunction with technological measures as a substitute to the system of exclusive rights and limitations established by traditional copyright law.[3] A quick survey of the current licensing practices carried out by European website operators indicates that information providers increasingly tend to restrict or even to prohibit certain uses with respect to the content made available via the Internet, in
a manner that goes far beyond the bounds of copyright law.[4] Often, the wording of a click-wrap licence will seem to imply that the restriction on
- ↑ Gowers Review of Intellectual Property, London, HM Treasury, December 2006, p. 73.
- ↑ P. Bernt Hugenholtz, “Copyright, Contract and Code: What Will Remain of the Public Domain?”, Brooklyn Journal of International Law, 26 (2000), 77–90 (p. 79); Paul Goldstein, “Copyright and its Substitutes”, Wisconsin Law Review (1997), 865–71 (p. 867).
- ↑ Jacques de Werra, “Moving Beyond the Conflict Between Freedom of Contract and Copyright Policies: In Search of a New Global Policy for On-Line Information Licensing Transactions: A Comparative Analysis Between U.S. Law and European Law”, Columbia Journal of Law and the Arts, 25 (2003), 239–375 (p. 251); Haimo Schack, “Anti-Circumvention Measures and Restrictions in Licensing Contracts as Instruments for Preventing Competition and Fair Use”, University of Illinois Journal of Law, Technology and Policy (2002), 321–32 (p. 329).
- ↑ Lucie Guibault et al. (2007), pp. 141 et seq.
