The future of digital rights management

The following is an excerpt from the first of two companion studies prepared for the Copyright Policy Branch of the Department of Canadian Heritage by the law firm Nelligan O’Brien Payne LLP. These studies address a range of policy considerations associated with the use of technological protection measures (TPMs) as a means of applying the law of copyright in digital environments. The future abounds with question marks. Still, one thing that is evident from the recent trends discussed above, is that the development of full scale DRMs requires the cooperation of a number of different stakeholders. Therefore, the success of new DRM technologies will likely require agreements to be reached amongst this motley crew of interest groups. The process of achieving acceptable standards and protocols could, in some instances, take a number of years. Consequently, the full-scale adoption of DRMs could be significantly delayed. It follows that the adoption of corresponding TPMs might also be delayed significantly. These delays might lead to the development of an unmanageable number of isolated, interim TPMs by those who are unwilling to wait for the culmination of the slow consensus-building process required for the development of more widespread DRMs. A proliferation of interim TPMs would significantly diminish the interoperability between the various technologies, something that consumers would find frustrating and unacceptable. While we are still at a stage where many TPMs exist and others will become available, the success of full-scale DRMs requires the development of uniform and interoperable information systems. Three possible approaches have been proposed for the creation of a more comprehensive copy protection architecture. These are: A set of cascading technologies and legal obligations, in which one TPM will only hand off a copyrighted work that it protects to another TPM when there is adequate assurance that the downstream TPM will handle the work securely; the development of a single comprehensive TPM architecture for handling TPMs that includes features such as encryption, authentication, watermarks, mechanisms that will only download to secure outputs, and other such mechanisms; A requirement that licensees who wish to build a product in a particular format adopt a corresponding TPM through linked grants of intellectual property rights from the licensor of the technologies. Although it is theoretically possible that, one day, one of the above proposals might possibly lead to the development of a full-scale DRM that manages to maintain copyright’s delicate balance between private rights and the public interest, it goes without saying that none of the above proposals could ever prevent the future circumvention of TPMs. Still, there are at least two general approaches that are thought to assist in minimizing the threat of circumvention. The first approach is technological. In the context of digital rights management, renewal refers to, "the process of issuing a new certificate using the same public key from the previous certificate." The second general approach is not technological but legal. This approach involves the creation of a prohibition on the circumvention of some or all types of TPMs (with a circumscribed range of possible exceptions). This approach is fraught with other difficulties that will be examined at length in our second study. There is an important observation to be gleaned from any attempt to predict the future of TPMs. Given the uncertainty of so many factors necessary to the long term success of using TPMs as a means of protecting intellectual property rights in digital content, it would seem that great caution should be exercised by policy-makers who are considering an immediate legal response to what is still a relatively unknown if not practically unborn technology. The policy implications of the legal approach in our second Study will to some extent be guided by this observation.

The future of digital rights management

Broadcast | April 3, 2003

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