The review of the DSM Directive is just around the corner. To mark the occasion, we’ve invited several experts to reflect on the issues the Directive aimed to fix—but didn’t. Kristofer Erickson’s guest post reviews new research highlighting the the failure of Articles 6 and 7 to solve the constraints posed by technological protection measures.
Open knowledge communities have contended with copyright technological protection measures (TPMs) for more than 25 years. Because their effects persist beyond their initial usefulness to rightsholders, TPMs have been compared to environmental pollution. The failure of policy, including the Copyright in the Digital Single Market Directive (CDSMD), to fully account for the negative impacts of TPMs prevents society from realizing the full benefit of our digital society.
In an influential article, legal scholar John Rothchild likened the economic impact of TPMs to environmental pollution, because policy fails to take full account of their negative effects beyond their application at the point of manufacture. The social cost of TPMs (on preservation, research, private study and other uses benefitting from exceptions) is usually unaccounted for in the bargain struck between rightsholders and the initial consumers of works. TPMs linger in the information environment, creating unforeseen costs when later unearthed by new users not anticipated at the original point of sale.
Research in CREATe at the University of Glasgow examined how TPMs impact real-world knowledge communities. The purpose of our research was to identify and add up the social costs arising from TPMs, to give policy makers a clearer idea of the downsides of strong legal protection in the form of anti-circumvention prohibitions which exist in Europe and other jurisdictions. We found two main sources of costs from TPMs: (1) cumbersome legal burdens placed on use prevents research support institutions like libraries, archives and universities from fulfilling their mandates to benefit society (a social cost borne by everyone); (2) TPMs further reduce the utility of materials for researchers, preventing society from gaining the full benefit of innovative and legally permitted uses by the public. The CDSMD, while a step in the right direction, unfortunately has not solved these two issues.
Inhibiting the public mission of libraries and archives
One study in 2024 comprised of a survey and interviews with 92 libraries and archive institutions across Europe (including the UK). The impacts for these institutions were stark. Most commonly, TPMs inhibited research, lending, learning, teaching, text-and-data-mining and on-site access for visitors.
A prominent finding was that institutions have limited human and technical resources to assess legal options or to engage with publishers to request removal of TPMs, and this is borne out in the low rate of interaction with rightsholders or government administrative processes. Most European jurisdictions provide a formal procedure for beneficiaries of exceptions to request removal of TPMs by contacting rightsholders. Only 38% of the institutions surveyed engaged with such a process, and outcomes for those that did were not encouraging: 51.7% of requests took a month or longer to resolve. Some 10% of requests received no response at all from rightsholders and 9% of requests were denied. Overall, respondents (both institutional and individual) complained that existing formal procedures were opaque, unresponsive and inadequate to the intended purpose of permitting lawful uses via exceptions – issues that the CDSMD sought to resolve, for example by preventing override-by-contract in Article 7.
TPMs further reduce the utility of materials for researchers
In addition to preventing institutions from carrying out their core mission, we found that TPMs were a source of disutility for researchers, with 48% of institutions and 80% of individuals reporting they would avoid acquiring TPM-protected materials in the future. That is because those materials were often inferior to equivalent non-TPM protected materials, even from unauthorized (pirate) sources. Materials without TPMs enable users to copy, manipulate, format shift, bibliometrically explore and otherwise use them in ways benefitting a diverse range of research needs.
One research library put it succinctly: “Publishers’ attempts to ensure the security of ebook services frequently result in a deterioration of user-experience and there is a lack of consistency on pricing or redress for changes in licensing terms within license periods.”
Preservation and use of out-of-commerce digital materials emerged as a major frustration for institutions dealing with TPMs. These materials include images, electronic records, and audiovisual works on legacy hardware formats. Digital preservation does not only consist of making copies (a function itself inhibited by TPMs) but may involve other processes such as migrating an object from one file structure to another to avoid obsolescence or emulating a software environment to enable access to content otherwise inaccessible. On certain types of media, the expertise required to circumvent a TPM, even when legally permitted, no longer exists. Manufacturers of legacy TPMs may have gone out of business, encryption techniques and keys are lost to the sands of time. Only through the labor of skilled experts can certain endangered digital works be preserved. This was highlighted in our report that examined the economic cost of overcoming TPMs by volunteer developers of the MAME emulation project.
Conclusion
TPMs are akin to ecological damage for open knowledge systems. They remain in the information environment for decades beyond their practical use, slowing innovation and preventing productive use of old materials by new audiences. Similarly to pollution, the costs of TPMs are not borne by the publishers who applied them to works, but rather future generations of researchers and students who encounter their negative effects, and whose costs were never considered in the initial policy calculus. We should be wary of introducing new forms of technological protection, even when the short-term benefits seem appealing. A longer-term view should consider the impacts on future communities and the costs they will incur. In light of the research findings, we have the following specific policy recommendations:
First, we recommend that Europe more widely adopt a standard of 72-hour time limits for rightsholders to respond to user requests (already in place in Bulgaria and Slovenia). Beneficiaries of exceptions should then be legally empowered to circumvent or seek removal of TPMs to accomplish the intended lawful use.
Second, we recommend that Articles 6 and 7 CDSMD be updated or clarified to cover circumvention of TPMs. Currently, Article 6 helpfully enables cultural heritage institutions to “make copies of any works or other subject matter that are permanently in their collections, in any format or medium, for purposes of preservation of such works or other subject matter and to the extent necessary for such preservation.” However, without explicitly clarifying the status of TPMs, the Directive remains ambiguous about whether this provision permits circumvention. Through the mechanism of legal deposit, certain jurisdictions have gone further: France and Germany both require that items not be incumbered by TPMs at the moment of deposit.
Even though modest, these recommendations would go some way to re-balancing the dynamic between rightsholders and lawful users, by creating small incentives to reduce the use of TPMs or maintain ‘clean’ versions that keep access available in the case of a legal request.
