Important legal developments regarding protection of copyrighted content against unauthorized copying (original) (raw)
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SHIELD………………………………………….31 VI. TPM IN EUROPEAN UNION AND OTHER JURISPRUDENCE…………….35 a. background……………………………………………………………………...35 b.balance in EU…………………………………………………………………....37 c. Normative commitment………………………………………………………...39 d. France…………………………………………………………………………..41 e.United Kingdom…………………………………………………………………42 f.Austrialia…………………………………………………………………………43 g.Malaysia………………………………………………………………………….45 VII. CONCLUSION……………………………………………………………………46 PART I INTRODUCTION. The importance of balancing interests in the light of technological advancement is manifest in Digital Millennium Copyright Act (DMCA) legislative history. Congress attempted to balance competing interests and endeavored to specify with as much clarity as possible, how the rights against anti-circumvention would be qualified to maintain the balance between the interests of content creators' and information users.[1]The interests that the DMCA set out to balance resulted in development of shields(defensive devices to protect legal rights) by these interest to enhance their position in the copyright regime. The advent of the digital age changed the protection and enforcement landscape of copyrights not just in the United States but globally. This paper will principally focus on the United States attempt to address the challenges of copyright protection in the digital technology age. In the United States the enactment of the DMCA[2] was a deliberate attempt to address the perceived inadequacies of the pre-existing Copyright Act[3] to prevail in the enforcement of copyright. The Copyright Act has been embedded with principles that balance the rights of the copyright owner against the public's interest in having appropriate access to innovative works[4].The interest of content creators and information users had to be balanced. The objective of copyright as expressed in the Constitution[5] demanded that the interest of copyright owners and users be taken into consideration in the DMCA environment. The courts are in the forefront of balancing these interests. We will review how the courts have attempted to achieve a balance. This paper is divided into seven parts. In part I the historical background of the DMCA will be analyzed. The position of the pre-DMCA will be discussed and the influence of the pre-DMCA environment on the DMCA will be reviewed. In part II, a discussion of the earlier and current copyright regime and the earlier cases that influenced the current regime. In part III, TPM will be reviewed through the cases. In part IV how the legislature attempts to balance the interests within the copyright regime is analyzed. In part V,the concept of copyright misuse as a shield in the copyright regime is analyzed. In part VI, a review of the position of EU and other non EU jurisprudence is conducted. An overview and comparative analysis will be conducted. Part VII will conclude with likely suggestions and solutions, the current position of the interests and other emerging interests. Suggestions will be offered on the way forward in view of new business models that are emerging.