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1. Communia and the European Public Domain Project
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of the copyright term. Because circumventing tools are illegal, users will be incapable of accessing public domain material fenced behind TPMs. In addition, TPMs will affect the public domain by restricting or completely preventing fair dealings, privileged and fair uses.[1] TPMs cannot make any determination of purpose that is necessary to assess whether a use is privileged or not. In the absence of that determination, copyright will be technologically enforced regardless of the fairness of the use, the operation of a copyright exception or limitation, or a private use. As per Directive 2001/29/EC, as with many other pieces of international legislation, circumventing a digital right management technology that restricts acts permitted by the law is a civil wrong and perhaps a crime.[2] Exceptions and limitations, and in particular the limitations included in Article 6(4) of the Directive 2001/29/EC, will be of no avail to exclude infringement of the anti-circumvention provisions.[3]

In recent years, contract law has also been deployed to commodify and appropriate information supposedly in the public domain.[4] Contracts may be employed to restrict or prohibit uses of works that would otherwise be permitted

  1. ↑ See Lucie Guibault 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” (February 2007), report prepared for the European Commission, DG Internal Market, ETD/2005/IM/D1/91, pp. 102—33 (discussing the relation between limitation and TPMs); see also Mireille Van Eechoud, P. Bernt Hugenholtz, Lucie Guibault, Stef Van Gompel and Natali Helberger, Harmonizing European Copyright Law: The Challenges Of Better Lawmaking (Kluwer Law International, 2009), pp. 131—79
  2. ↑ See Common Position No. 48/2000 of 28 September 2000 adopted by the Council, with a view to adopting a Directive of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society, 2000 O.J. (C 344) 01, 19 (1 December 2000), available at http://eur-lex.europa.eu/LeeriServ/LeeriServ.do?uri=O]:C:2000:344:0001:0022:EN:PDF; see also Kamiel J. Koelman, “The Public Domain Commodified: Technological Measures and Productive Information Use”, in The Future of the Public Domain: Identifying the Commons in Information Law, ed. by Lucie Guibault and P. Bernt Hugenholtz (Kluwer Law International, 2006), pp. 108—09.
  3. ↑ Guibault et a1., Study on Directive 2001/29/EC, p. 106; see also Nora Braun, “The Interface Between The Protection of Technological Measures and the Exercise of Exceptions to Copyright and Related Rights: Comparing the Situation in the United States and the European Community”, European Intellectual Property Review, 25 (2003), 496-503 (p. 499).
  4. ↑ See Lucie Guibault, “Wrapping Information in Contract: How Does it Affect the Public Domain?”, in The Future of the Public Domain: Identifying the Commons in Information Law, ed. by Lucie Guibault and P. Bernt Hugenholtz (Kluwer Law International, 2006), pp. 87—104; Lucie Guibault, Copyright Limitations and Contracts: An Analysis of the Contractual Overridability of Limitations on Copyright (Kluwer Law International, 2002); Lydia Pallas Loren, “Slaying the Leather-Winged Demons in the Night: Reforming Copyright Owner Contracting with Clickwrap Misuse”, Ohio Northern University Law Review, 30 (2004), 495-535; Samuelson (2003), pp. 155—58, 163; P. Bernt Hugenholtz, “Copyright, Contract and Code: What Will Remain of the Public Domain?”, Brooklyn Journal of International Law, 26 (2000), 77-90; Niva Elkin-Koren, “Copyright Policy and the Limits of Freedom of Contract”, Berkeley Technology Law Journal, 12 (1997), 93-113.
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