Code, Copying, Competition The Subversive Force of Para-Copyright and the Need for an Unfair Competition based Reassessment of DRM Laws after Infopaq

Abstract

There has been much debate on the interface between protection by technological protection measures (TPM) and substantive copyright law, and particularly so following the implementation of Article 6 of Directive 2001/29/EC in national laws, 1 which provides the general framework for TPM protection in the European Union. Digital rights management's (DRM's) technological protection measures afford, on a factual level, absolute protection to information, functioning as a code to distinguish exclusion and inclusion. Normative rules endorsing and, indeed, supporting their application can hardly co-exist with a normative system that allocates rights only where certain clear conditions are met. It will be argued here that regulating TPMs as a means of enforcing copyright law is misguided, shifting the debate towards topoi relating exclusively to copyright as a system protecting individual creativity against what may roughly be identified as a public domain debate. This risks missing the fundamental distinction between protecting market interests in general and protecting individual works of authorship.