The Suitability of the Regime of Technological Measures for Copyright Protection in the Face of Modern Cybersecurity Risks

Technological protection measures (TPM) are Information and Communication Technologies (ICT) applications, devices or other technologies used to block, limit or perform any sort of control to the access to certain protected works or performances made available digitally. They represent a way for holders of copyright and related rights to control the economic exploitation of their works in the digital environment. Given the risks posed by the Information Society to unauthorised access, sharing and use of protected works and performances, TPM’s play a central role in protecting the interests of the holders of these rights. The international protection of TPM’s was initially recognised in the 1996 WIPO International Treaties on Copyright and on Performances and Phonograms. Later in Section 1201 of the Digital Millennium Act of 1998 in the US. And finally, in Article 6 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001, it has been made compulsory for the member states of the European Union to implement it. This directive was transposed by Portugal through Law No. 50/2004 of 24 August 2004. In this chapter we analyse the provision made in EU law on TPM’s (in Sect. 2) and their transposition into Portuguese law (in Sect. 3). In Sect. 4 we analyse the risks that the digitalisation of works and performances pose to their protection, and in Sect. 5 we present our conclusions on the adequacy of the legal regime established for the protection of TPM’s as a legal mechanism that seeks to reconcile the exclusive ownership of copyright owners and related rights with citizens’ rights of access to education, culture and information.