In the information society or, if you prefer, in what Jeremy Rifkin has already defined the Age of access, access to digital content plays a role of absolute centrality in relations between individuals, those between private and public administration and in the diffusion and circulation of cultural heritage through the many forms of literature, photography, music and film.The existing rules - that think the law of contracts, antitrust rules or, rather, the new Code of the digital age - contains probably answers and solutions to the problems which the digitisation of the most progressive part of the legal relationships can give rise. In recent years, however, has witnessed the gradual overlap of technical regulations to those legal. This

is a worrying phenomenon because while the rules of law - although the second dynamic certainly improved and not always free from undue influences - are the fruit of reconciliation of conflicting interests which is realized through the process of rulemaking entrusted to the legislature, the rules techniques are developed and unilaterally imposed by holders of technology outside of each dynamic balance of conflicting interests and bearing in mind - in the almost exclusive - aims of the market or, better profit. In this reasoning there is no doubt that a major deal, at the increasing use by the holders of rights (in particular intellectual property) on digital content and by producers of devices playing such content and the owners / operators of communications infrastructure, technology known as DRM (Digital Rights Management). The DRM are, in principle, the most natural solution to transpose in the new digital rules of law.  However, possible - and that is what has happened in recent years - that these technologies are used abstractly neutral to impose in market dynamics different rules and often conflicting with those of law, rules, as is anticipated, unilaterally established by producers technology to protect their exclusive interests. In this context assists - now on a daily basis - to (a) repeated violations of contract law, (b) episodes that could define abuse of intellectual property rights and (c) repeated violations of the competition. Some examples: (a) install the majors Observatory on CD / DVD containing their products to preclude that DRM content playback on all the players but not inform the consumer of what the player through which the work can be purchased listened to / viewed. This is a blatant violation of contract law under multiple profiles ranging from new provisions of the Code of consumption than traditional referred to the Civil Code regarding in particular the vices of the thing sold and / or possession of the essential qualities. In a word, this practice has an impact unduly on the process of forming the negotiating consumer desire that leads to the purchase of a medium containing digital products with the legitimate expectation of being able to use any device through what is intended. The problem at the root of these violations can be summarized in the lack of transparency of technical rules incorporated into DRM. (b) the existing rules of copyright recognises the legitimate users of an audiovisual law / the right (this is not yet resolved the question unambiguously and final at European level) to play for your personal use only Provided that non-profit and not-for directly or indirectly commercial, the work itself. In recent years, major media have progressively limited that right / faculty on installing CD / DVD containing their works, DRM bearing protection systems suitable to prevent the user - even if legitimate - the reproduction of purchased. The existing rules of copyright recognizes the holders of rights (Article 102 quater LDA) the possibility of putting on works or materials protected technological protection measures but - although the principle is expressed in very ambiguous wording in . 71 e LDA - provided, however, to allow legitimate users of their works to the right / right of reproduction for personal use. The problem at the root of this phenomenon can be summed up in expression abuse of intellectual property rights. (c) producers of readers audio / video and some distributors of digital content install on their products or content distributed DRM that enable content playback only through its own devices and / or which do not allow play on your device content distributed by third parties. This is obviously of technical solutions for defence and strengthening of positions in markets dominated linked. Consider the case Apple (Itunes-Ipod) or, rather, the case Sony (www.connect-europe.com - NWhd1). This phenomenon may give rise - in relation to the characteristics of those involved - to conduct abuse of dominant position and / or, in any violation of discipline in competition matters affecting so undue negotiating on the choices of consumers. I'm participating for some months now to the Dmin.it and I am convinced that the solution being developed in that forum would make the best use of the DRM technology and eliminate distortions and problems thus far emerged. Sin so that solution will not be reality, however, I believe it is important to keep our guard high, and circulation any useful information about how distorted that, too frequently, the major media are technologies of protection and management rights. Notify, segnaliamoci each case and that episode attentive to free access to digital content in the information society. The technology should broaden the audience for our cultural heritage and not reduce it on the basis of economic parameters such as, unfortunately, is happening…

Tags: between, contract, Copyright, Drm, market

Posted on: August 30, 2008

Filed under: Copyright