Technical Protection Measures such as Digital Rights Management systems can have adverse effects on the Public Domain. Access restrictions imposed on works can remain in effect even after a work has passed into the public domain and over time Protections Measures can become orphaned making access to protected works impossible. Most current TPM 'solutions' do not take into account user rights created by Exceptions and Limitations thereby limiting their effectiveness and undermining the inherent checks and balances of the copyright system. Given the above, circumvention of TPMs must be allowed when exercising user rights created by Exceptions and Limitations or when using Public Domain works.
The crucial driver of the modern drift towards commodification of the public domain is a mix of technology and legislation. Technology and architecture of control have a central role in the commodification of information, culture, and the public domain. Technology was able to appropriate and fence informational value that was previously unowned and unprotected. That value was appropriated through the adoption of technological protection measures (TPMs) or digital right management (DRM) systems to control access and use of creative works in the digital environment. TPMs served as a tool to empower copyright holders to control any use of copyrighted works, including uses that previously could not be restrained.
The seal on a policy of control was set by the introduction of the so called anti-circumvention provisions. The WIPO Internet Treaties first, the Digital Millennium Copyright Act in the United States and the Directive 29/01/EC in Europe later, enacted provisions aimed to forbid the circumvention of copyright protection systems. In addition, the law banned any technology that may be designed to circumvent technological anti-copy protection measures.
Anti-circumvention provisions may have negative effects both on the structural and the functional public domain. The foremost concern with this legal and technological bundle is that DRM and anti-circumvention provisions, as they are programmed so far, can make copyright perpetual. The legally protected encryption, in fact, would continue after the expiration of the copyright term. Because circumventing tools are illegal, users will be incapable of accessing public domain material fenced behind DRM technologies. The persistence of technological protection measures after the expiration of copyright will impoverish the digital public domain greatly by precluding new works to enter it.
A more subtle point is related to the danger that the architecture of the networks will make the law irrelevant. This change will affect greatly our ecology of creativity and the public domain. In a very obvious way, DRM technologies will affect the public domain by restricting or completely preventing fair dealings, privileged and fair uses. DRM technology cannot make any determination of purpose that is necessary to assess whether a use is privileged or not. In the absence of that determination copyright will be technologically enforced regardless of the fairness of the use, the operation of a copyright exception or limitation, or a private use. It is worth noting that, as long as technological protection measures will prevent the application of exceptions allowing copying in news media and quotations, they may be viewed also as hampering freedom of expression.
As matter of the fact, the pristine wording of the WIPO Internet Treaties stated that sanctions had to be applied to the circumvention of effective technological measures that restrict acts in respect of works of authorship which are not authorized by their authors or permitted by law. Nevertheless, few regional implementations make any specific exceptions to the anti-circumvention provisions when digital rights management technologies restrict acts that are permitted by the law. In particular, European law, as embodied in Art. 6(4) of Directive 2001/29/EC, more narrowly provides that
Member States shall take appropriate measures to ensure that rightholders make available to the beneficiary of an exception or limitation provided for in national law [ . . . ] the means of benefiting from that exception or limitation, to the extent necessary to benefit from that exception or limitation and where that beneficiary has legal access to the protected work or subject-matter concerned.
This is to say that rights holders should make available the means to benefit from copyright exceptions and limitation, fair uses, and fair dealings, but if they do not, any circumvention is still punishable. A team of scholars from the Institute for Information Law at the University of Amsterdam (IViR) has noted that “for even if article 6(4) creates an obligation to provide the means to exercise a limitation, this obligation is imposed on rights owners and does not give users any authority to perform acts of circumvention themselves.” Circumventing a digital right management technology that restricts acts permitted by the law is a civil wrong, and perhaps a crime, as such. This conclusion is supported by the preparatory works that introduced the Directive 2001/29/EC and the definition of technological measures. The Council made clear that
Art. 6(1) protects against circumvention of all technological measures designed to prevent or restrict acts not authorized by the rightholder, regardless of whether the person performing the circumvention is a beneficiary of one of the exceptions provided for in Article 5.
Further, according to paragraph 4 of Art. 6(4) of Directive 2001/29/EC, the obligation of the rights holder, and Member States, to provide users with the means to exercise exceptions and limitations against TPMs, “shall not apply to works or other subject-matter made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.” Given that Recital 53 of the Directive 2001/29/EC specifically excludes “non-interactive forms of online use” from this last provision, the obligation to provide users with the means to exercise exceptions and limitations against TPMs shall not apply to any work transmitted “on demand” over the Internet.
Additionally, the open-ended nature of the Information Society Directive exceptions and limitations regime further concerns users in terms of lack of legal certainty. Article 5 of the Directive 2001/29/EC provides mostly for optional limitations and grant the Member States ample discretion on how implement the limitations. As foreseeable, this regime has led to dissonant implementations in the Member States. In particular, Article 5(2) c) of the Directive 2001/29/EC, permitting specific acts of reproduction by public libraries and archives, has been transposed inconsistently throughout the European Union. Some countries have applied the limitation for purposes of preservation and restoration to all types of works. Some other countries have restricted the limitation to specific works. Finally, other countries have not implemented the limitation at all. Such a diverse legal framework is an hindrance to digitization projects by heightening the level of legal uncertainty and the consequential transaction costs. To this regard, Professor Lucie Guibault has noted at the 1st COMMUNIA Conference that
All in all, the regime of limitations and technological protection measures established by the Information Society Directive does not appear to offer the necessary legal certainty to support the deployment of a cross-border European library project as advocated in the Recommendation on the digitisation and online accessibility of cultural material and digital preservation. It is fair to conclude that the goals of the Information Society Directive are not compatible with those of the Recommendation on digitisation and accessibility of material.
The described legal framework is at odds with users prerogatives as well as the public interest to preserve and exploit European cultural heritage. Those tensions need to be redressed as a matter of urgency, especially in light of their long standing inclusion in the European agenda for the information society. In 2005, the i2010 strategy already prioritized the issue of TPMs by providing that “the Commission will also seek to establish a comprehensive approach for effective and interoperable digital rights management.” Effective and inter-operable digital rights management should necessarily take into proper account the characteristics of the digital public domain and users’ prerogatives.
Preliminary, it is worth noting that the European protection against circumvention activities goes further than any other international legislation. It is the only legislation that does not require an express link to copyright infringement and prohibits acts of circumvention of both access control and copy control mechanisms. Therefore, firstly, following the requirements of the WIPO Internet Treaties, any comprehensive approach related to digital right management should redress this extreme approach of the European legislation by précising that
In general terms, to protect the public domain against the adverse effect of TPMs, there are two options: either (i) legalizing circumventions to exercise users’ rights and use public domain works or (ii) outlawing TPMs that restrict public domain and privileged uses. Indeed, the optimal solution to strengthen the public domain and protect users’ prerogatives, would be to adopt both measures by legalizing “good” circumvention and outlawing “bad” TPMs. Implementing both measures would be advisable because circumventing TPMs is, however, an action entailing some degree of technological literacy. Absent a positive protection against structural and functional public domain enclosure operated by TPMs, the large majority of the users will be left without an effective redress. TPMs will prevent in practice privileged uses and access to public domain works to all those users short of the required technical literacy to circumvent TPMs. The fact that circumvention is lawful is of no avail if sanctions are not in place to discourage private parties from fencing the public domain and making extremely burdensome for the users to access it.
In this regard, COMMUNIA draws attention to other jurisdictions that are taking seriously the impact of DRM on the public domain and are arranging the necessary countermeasures. Europe should not lag behind. A recent proposed update to Brazilian copyright law is aimed to assure that technological protection measures have time limited effects that will not surpass the expiration of copyrights over the work and do not hinder or impede fair or privileged uses of a protected work. To foster this goal, the new proposed legislation shall allow the circumvention of DRM technologies to make fair or privileged uses of a work or in cases where the copyright has expired. Further, the proposal establishes sanctions for hindering or preventing the users from exercising their fair dealing prerogatives, through whatever means, thus including DRM technologies.
On a final note, further action to be undertaken to protect the public domain against TPMs may entail the harmonization of the observatory bodies monitoring the use of TPMs. Several European Member States have implemented the obligation provided by Art. 6(4) of the Directive 2002/29/EC by setting up observatories to provide individual redress in case TPMs prevented the exercise of a limitation or exception on copyright and related rights. Since the diversity, or the absence all together in some jurisdictions, of these monitoring bodies has disharmonizing effects, one option would be to set up a pan-European observatory body in the area of TPMs and copyright. However, more analysis is needed to determine the powers that may be attributed to the pan-European observatory body and whether it should co-exist with the national bodies.
 See WIPO Copyright Treaty, Art. 11 (December 20, 1996), available at http://www.wipo.int/treaties/en/ip/wct/ trtdocs_wo033.html#P87_12240.
 See Digital Millennium Copyright Act of 1998 § 103, 17 U.S.C.A. § 1201 (a) (1) (A) (West 2008), available at http://www.copy right.gov/legislation/pl105-304.pdf.
 See Council Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society, Art. 6(1), 2001 O.J. (L 167) 10, 17 (May 22, 2001), available at http://eur-lex.europa.eu/LexUriSe rv/LexUriServ. do?uri=OJ:L:2001:167:0010:0019:EN:PDF.
 See Common Position No. 48/2000 of 28 September 2000 adopted by the Council, with a view to adopting a Directive of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society, 2000 O.J. (C 344) 01, 19 (December 1, 2000), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2000:344:0001:0022:EN:PDF.
 Lucie Guibault, Evaluating Directive 2001/29/EC in the light of the Digital Public Domain, paper presented at the 1st COMMUNIA Conference (July 1, 2008), at 11 [hereinafter Guibault, Evaluating Directive 2001/29/EC].
 See Lei No. 9610, de 19 de Fevereiro de 1998, Atualizada com as mudanças da Minuta de Anteprojeto de Lei que está em Consulta Pública [updated with the changes to the draft law which is under public consultation] (June 12, 2010), at Art. 107, IV, § 2 and 3, available at http://www.cultura.gov.br/consultadireitoautoral/lei-961098-consolidada [hereinafter Lei 9610/98 Atualizada].
 Id., at Art. 107, IV, § 1, a) and b).
 See Lucie Guibault et al., Study on the Implementation and Effect in Member States' Laws of Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society 124-133 (February 2007) (report prepared for the European Commission, DG Internal Market, ETD/2005/IM/D1/91), available at http://www.ivir.nl/publications/guibault/Infosoc_report_ 2007.pdf.