Conditional Access
Access Control and Innovation under the Emerging EU Electronic Commerce Framework
By Thomas Heide
Abstract
Recent legislative developments in the European Union and United States alike have sought to extend legal protection to access control technology. While the United States has chosen to legislate within the Copyright Act, the European Union, as part of its Electronic Commerce framework, has in part chosen to extend legal protection to access control mechanisms by a Directive having no connection with copyright law. This Article focuses on the Conditional Access Directive which extends legal protection to access control technology used in conjunction with certain services and argues that its legal recognition of interests in access control technology can affect the applicability of copyright law as a whole, or more importantly, it can affect the limitations and exceptions found under copyright law which are designed to promote creation and innovation. This Article argues that, given copyright law’s promotion of innovation-driven competition, its applicability must be ensured. The Article reveals that the international community and the European Union have previously dealt with similar threats to the integrity of copyright law in several treaty instruments and EU Directives. To avoid placing the applicability of copyright law into question, particularly as applied in the digital environment, this Article recommends that the legal relationship between the Conditional Access Directive and copyright law be more clearly set forth.
Table Of Contents
I. Introduction
Creation and protection of information products are often considered part of the same equation. As the following recital from the European Union (“EU”) Common Position on the Copyright Directive indicates, ensuring an effective level of protection is deemed to provide the necessary incentive to create:
[a]ny harmonisation of copyright and related rights must take as a basis a high level of
By Thomas Heide
Abstract
Recent legislative developments in the European Union and United States alike have sought to extend legal protection to access control technology. While the United States has chosen to legislate within the Copyright Act, the European Union, as part of its Electronic Commerce framework, has in part chosen to extend legal protection to access control mechanisms by a Directive having no connection with copyright law. This Article focuses on the Conditional Access Directive which extends legal protection to access control technology used in conjunction with certain services and argues that its legal recognition of interests in access control technology can affect the applicability of copyright law as a whole, or more importantly, it can affect the limitations and exceptions found under copyright law which are designed to promote creation and innovation. This Article argues that, given copyright law’s promotion of innovation-driven competition, its applicability must be ensured. The Article reveals that the international community and the European Union have previously dealt with similar threats to the integrity of copyright law in several treaty instruments and EU Directives. To avoid placing the applicability of copyright law into question, particularly as applied in the digital environment, this Article recommends that the legal relationship between the Conditional Access Directive and copyright law be more clearly set forth.
Table Of Contents
I. Introduction
Creation and protection of information products are often considered part of the same equation. As the following recital from the European Union (“EU”) Common Position on the Copyright Directive indicates, ensuring an effective level of protection is deemed to provide the necessary incentive to create:
[a]ny harmonisation of copyright and related rights must take as a basis a high level of