Better a Sword Than a Shield: The Case for Statutory Fair Dealing/Use Right as Opposed to a Defence in the Light of the Disenfranchising Effect of Digital Rights Management and Anti-Circumvention Laws

Publication Type

Conference Paper

Publication Date



The use and abuse of technology and the relatively late entry into the scene of technology producers have thrown a spanner in the works gone into the constant recalibration of the rights of copyright holders on the one hand and the interests of individuals (not just consumers) on the other. Although some forms of technology, in particular peer-to-peer technology have empowered the exchange and re-use of works, other forms have emerged to constrain access and use of works, such as Digital Rights Management (DRM). Although self-help remedies have emerged for all parties concerned to promote their interests, often at the expense of the other, the law has remained the primary instrument of copyright regulation and in some senses an arbiter. However, inevitably politics and economics have skewed the quest for legislative equilibrium. Copyright law is a blunt instrument and has so far merely produced recent changes that are largely in favour of copyright holders. The problem lies not only in the existence of such laws but in their construction particularly where they relate to technology. It appears that the draftsmen of the Digital Millennium Copyright Act (DMCA), which have spawned replicates worldwide, have failed to produce laws relating to the use of DRM technology that are not broad-based but more purpose specific, unlike the tenuous but arguably yet more successful trend of maintaining balance in the use of P2P technology in the United States Supreme Court. In particular, the general and wide double protection offered by DRM and Anti-Circumvention Laws (ACL) have produced a widely acknowledged problem, namely the inadvertent (or otherwise) displacement of the US fair use exemption by preemptive preclusion. This has greater practical and policy concerns especially in jurisdictions that retain narrow purpose specific fair dealing exceptions to infringement. This is not merely an academic problem but it clearly shows the power of money politics and the disillusionment and disenfranchisement of the proletariat, who are users as well as creators in their own right, often through re-use.This paper will seek to endorse a significant reinvention and realignment of the status of the fair dealing/use carve-out through the simple powerful elevation of the exception to the status of a legal right, with all the benefits that it entails. This is not merely an exercise in semantics and the simple change in legal status of fair dealing/use will go very far in readjusting the scale and perhaps some way in offsetting the imbalances caused by the combined prohibitive effect of DRM/ACL on individual creative re-use and other fair uses. In the meantime, the existing general but unrefined DRM and ACL provisions themselves will also be critically examined and amendments suggested to temper the unfettered power to create and use Technical Protection Measures that have led to abuses such as the infamous Sony BMG CD Copy Protection scandal in 2005.


Intellectual Property Law | Internet Law

Research Areas

Intellectual Property and Technology-related Law


2nd International Conference on Legal, Security and Privacy Issues in IT, Beijing, 5-7 December 2007

City or Country

Beijing, China

This document is currently not available here.