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Contribution to Book

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Copyright User Rights: Contracts and the Erosion of Property

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copyright, technological protection measures, digital locks, WIPO Internet Treaties, copyright law, International copyright law, constitutional law, property, software, goods, services, access control, copy control, copyright infringement

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One of the greatest controversies in contemporary copyright law is the introduction of technological protection measures (TPMs) at the international and national level. By creating a separate parallel regime for digital copyright works, TPMs shifted the paradigm by redefining the rules of engagement of how users would increasingly access and experience digital copyright works.

In this chapter of my book Copyright User Rights, Contracts, and the Erosion of Property (Oxford University Press, 2017) I look at the implementation of TPMs as a regulatory tool from a multi-jurisdictional perspective. Initially mainly intended to protect copyright holders’ works made accessible online or to digital copyright works supported by a tangible embodiment (e.g. a CD or other disc) I query the regulatory regime of TPMs as it increasingly applies to physical objects in the internet of things (e.g. cars, tractors with integrated software) the primary purpose of which is not to embody a copyright work. This more recent development sheds new light on the concerns raised when TPMs were adopted at the international level over two decades ago. The increased application of TPMs to physical objects amplifies the encroachment of TPMs on the rights and privileges of users of copyright works. Arguments questioning the constitutionality of TPMs or their anti-competitive effects may become stronger. The regulatory response to an increased presence of TPMs in physical objects leads to a legal conundrum that may either provide a silver lining through adequate legal reform as a response, or legitimize even more the regime of TPMs altogether.

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