Technological accommodation of conflicts between freedom of expression and DRM: the first empirical assessment

Copyright incentives and rewards to producers of works have beenable to exist alongside other values, such as freedom of expression.However, changes in the way information products are beingdisseminated raises questions as to whether those values remaincompatible with the new modes of dissemination.So far, studies devoted to digital rights management (DRM) andcopyright exceptions have noted, theoretically, its legal implications.This research filled an existing gap by unveiling, through empiricallines of enquiry, (1) whether certain acts which are permitted by laware being adversely affected by the use of DRM and (2) whethertechnology can accommodate conflicts between freedom of expressionand DRM - linking, thus, policy conclusions to empirical findings.The survey concluded that some beneficiaries of privileged exceptionsare being adversely affected by the use of DRM and practical solutionsare required.Thus, it is proposed that, in the short term, with the help of theempirical findings and recommendations of this study, the ECCommission submits a proposal for two amendment of Article 6(4) ofthe Information Society Directive, as follows:(1) A definition of the expression ‘appropriate measures’ should beinserted in Article 6(4) of the Information Society Directive, statingthat for the purposes of that Directive such measures require theestablishment of a procedure to enable expeditious access to works bybeneficiaries of privileged exceptions, leading to the creation ofstandardized access to works portals across EC Member States.The existence of access to works portals would be made possible by aDRM deposit system, according to which the means to enablebeneficiaries of privileged exceptions to benefit from them would bedeposited and made available through access to works portals, inspecified circumstances.(2) It should be added to Article 6(4) of the Information SocietyDirective that where access to works by beneficiaries of privilegedexceptions is not facilitated, the protection of privileged exceptions(given their connection to core freedoms) prevails over the protection3of DRM, even where works are supplied online on agreed contractualterms.