Copyright or Access Right?

(IPRinfo 3/208)

Mikko Huuskonen (1)

The reviewed book: Kristoffer Schollin: Digital Rights Management; The New Copyright. Jure Förlag Ab, Stockholm 2008. P. 380, ISBN 978-917-22-3317-1

Kristoffer Schollin defended his doctoral thesis in Gothenburg University on the 28th of March this year. The title Digital Rights Management suggests a contemporary issue whereas the following expression The New Copyright indicates a broad approach to copyright law.

Schollin is a philosophically orientated researcher. In the opening pages he informs to be using no less than four different methods (although I managed to count the artillery up to 5). And there are themes (3) and motives (4). Perhaps the end product does not only benefit from this vast arsenal of scientific categorization. But after all, we are discussing scientific activity…

DRM (digital rights management ) as a phenomenon is important and topical. Not long ago did Viveca Still doctorate with the same theme. Still’s approach was built around the idea of “copyright balance”. Schollin has a wider techno-economic emphasis but returns in his conclusions to the question of balance (p. 364).

TPM more efficient than law?
Although Schollin’s book is about copyright law on broad terms, it is more about the development and the potential of the actual technology-based DRM systems. Schollin maintains that copyright legislation may be facing a new kind of challenge from technological development – that copyright law becomes secondary or even obsolete because technological control may surpass it.

This would also indicate a need – because of the rich criticism of DRM which he widely describes (e.g. pp. 322-328) – to discuss “balance and wider interests” (p. 364). By the way, Schollin refers frequently to Still (I managed to find 12 footnotes and main text on page 242) but due to some technicality there are no documents from Still listed in “Sources”. I have assumed it is Viveca Still’s thesis Schollin is referring to.

Technology allows more control over copyright protected material than what is granted through legislation; Schollin sees the future of copyright as addressing this “lock-in” instability. Whether this issue in fact is more about technological protection measures (TPM) rather than DRM related matter – as the latter concept is much broader – would perhaps require some terminological clarification.

Schollin’s book would perhaps not offer final answers to the many questions he seeks to answer (e.g. the list on p. 40), but it approaches legal, technological and economic interaction which is a sound – albeit difficult -starting point. We must ask questions of business-models and their interaction with legal frameworks in order to understand the totality of DRM we are dealing with.

Especially chapters 2 and 3 make interesting reading because of their insight to the current operation of several new technologies/services in the internet. These include file sharing (including the topical Swedish Bittorrent -issue) and the explanation of the functioning of the iTunes -music store (chapter 3). Chapter 4, sections 2 and 3 discuss the circumvention technologies.

In the actual legal analysis (chapter 4), my main comment would be with regard to the question of efficient TPMs. Schollin does not seem to address to the “circularity” critic put forward by e.g. Hugenholtz.

For example, in the examination of the prosecutor’s request for statement in the Finnish Copyright Council regarding the so-called Rauhala case (Schollin pp. 226-228), the Council made this observation of the circular nature of the “effectiveness” criteria in the Infosoc Directive.

Copyright or access right?
An interesting book gives leads for further research. Although DRM should be a rising alternative to platform levies (see e.g. Infosoc directive art. 5(2)(b)), the development in general seems to be in reverse and go towards “rough justice” in the form of taxation-like lump sums for use of copyrighted material where the individual right holder may remain unidentified and unpaid for.

DRM systems of about zillion transactions and tremendous individual invoicing – read: transaction costs – may find it very difficult to compete with the “one-size-fits-all” platform levies. And to add to the complexity, DRM must have not one but two important interfaces: that of licensing, and that of acquiring rights.

I believe Schollin is right when he identifies the need to bring the discussion on DRM to the level of techno-economic-legal interplay, as difficult as it may prove to be. What I probably would look forward to in the future research regarding DRM, is the broadening of the critical questions to the relation between market guidance (“the invisible hand”) and the law.

Do we need DRM legislation after all and from which perspective: industry (TPM protection) or customer (“lock-in” instability)? That is, copyright or access right? On the other hand, if the customers don’t dig products with TPM, the products will simply fail in the market. There is no legal protection against customer dissatisfaction.

(1) “External reader” in Kristoffer Schollin’s Ph.D. seminar in Gothenburg University, 7th June 2007