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Copyright management systems (CMS)—technologies that enable copyright owners to regulate reliably and charge automatically for access to digital works—are the wave of the very near future. The advent of digital networks, which make copying and distribution of digital content quick, easy, and undetectable, has provided the impetus for CMS research and development. CMS are premised on the concept of "trusted systems" or "secure digital envelopes" that protect copyrighted content and allow access and subsequent copying only to the extent authorized by the copyright owner. Software developers are testing prototype systems designed to detect, prevent, count, and levy precise charges for uses that range from downloading to excerpting to simply viewing or listening to digital works. In a few years, for example, an individual seeking online access to a collection of short fiction might be greeted with a menu of options including:

  • Open and view short story A — $0.50, or $0.40 for students doing assigned reading (verified based on roster submitted by instructor)
  • Open and view short story B (by a more popular author) — $0.80, or $0.70 for students
  • Download short story A (encrypted and copy-protected) — $1.35
  • Download short story B — $2.25
  • Download entire collection — $15.00
  • Extract excerpt from short story A — $0.03 per 50 words
  • Extract excerpt from short story B — $0.06 per 50 words

CMS also loom large on the legislative horizon. Copyright owners have argued that technological protection alone will not deter unauthorized copying unless the law provides penalties for circumventing the technology. Although a bill to protect CMS against tampering failed to reach a vote in Congress last year, the World Intellectual Property Organization's recent adoption of treaty provisions requiring protection means that Congress must revisit the question soon. Part II describes these developments.

The seemingly inexorable trend toward a digital CMS regime raises two questions, which the author addresses in parts III and IV, respectively. First, broadly drawn protection for CMS has the potential to proscribe technologies that have indisputably lawful uses and also to foreclose, as a practical matter, uses of copyrighted works that copyright law expressly permits. How may protection for CMS be drafted to avoid disrupting the current copyright balance? Second, and equally fundamental, CMS may enable both pervasive monitoring of individual reading activity and comprehensive "private legislation" designed to augment—and possibly alter beyond recognition—the default rules that define and delimit copyright owners' rights. Given the unprecedented capabilities of these technologies, is it also desirable to set limits on their reach?

Publication Citation

12 Berkeley Tech. L.J. 161-187 (1997)