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