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Digital Rights Management: The End of Collecting Societies - PDF (Downloadable Electronic Product)
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Copyright and Access – a Human Rights Perspective
Christoph Beat Graber1
1. Introduction
Copyright has traditionally been perceived as a catalyst for intellectual
freedom. 2 One of the most famous statements in support of this view
originates from the Supreme Court of the United States. In Harper & Row the
Supreme Court held in 1985:
«... it should not be forgotten that the Framers intended copyright itself to
be the engine of free expression. By establishing a marketable right to the
use of one’s expression, copyright supplies the economic incentive to
create and disseminate ideas».3
The assumptions on the relation between copyright and free speech underlying
the judgment of the Supreme Court seem to have changed remarkably since
1985. Due to an evolution towards digital networked environments, the
possibility to control inputs to creation and communication have increased
dramatically. As Julie Cohen puts it: «[a] combination of technology and
strengthened legal protection enables vendors of digital content to exert tighter
control over access to and use of that content...». 4 Legal protection of
copyright considerably increased with the establishment of the Agreement on
Trade Related Aspects of Intellectual Property Rights (TRIPs) in 1995, as one
of the three pillars of the World Trade Organisation (WTO).5 Because of the
unique dispute settlement system of the WTO, which secures binding and
enforceable Panel and Appellate Body Decisions, it became possible to
enforce high standards of copyright protection on a multilateral level
effectively. In regard to technological developments, the crucial step is the
advent of Digital Rights Management Systems (DRMs). 6 DRMs will
empower owners of cultural content to exclude users from access to (protected
and unprotected) cultural information or grant access to it on a conditional
base (e.g. that consumers pay for use of content). Intellectual freedom not
only requires access to information but – prior to this – knowledge about the
existence of information: «The rules governing information ownership and
access must enable individuals to identify and locate relevant or desired
information, and must facilitate informed decisions about whether to read
further».7 Thus, to the extent that DRMs inhibit individuals from browsing
information directly, such a technology has a negative impact on intellectual
freedom.
Christoph Beat Graber
Legal studies at the University of St. Gallen and the University of Berne. Postgraduate
studies in legal theory, sociology of law and European law at the European University
Institute (EUI), Florence. PhD thesis on system theoretical aspects of the relation
between Art, Economy, State and the Law at the EUI. Habilitation at the University of
Berne on the subject «Trade and Culture in the Law of the WTO». Christoph Beat
Graber was Managing Director of the Swiss Independent Complaints Authority for
Radio and Television. Since 2000 he is responsible for the course on global media and
communications law at the World Trade Institute in Berne. Since 2001 Prof. Graber is a
member of the founding team of the Faculty of Law at the University of Lucerne. As a
tenured professor, his teaching and research activities focus on communications and art
law, international trade law and theoretical sociology of law. Christoph Graber is the
head of the i-call (International Communications and Art Law Lucerne) Research
Centre of the University of Lucerne.
Presently, he is co-editor of the Swiss journal for communications law «medialex», as
well as member of the Committee on Cultural Diversity of CIFDUF (International
Conference of French Speaking Law Faculties). Since the beginning of 2004, Christoph
Graber is also a member of the Federal Arbitration Commission for the Exploitation of
Author’s Rights and Neighbouring Rights.
