This property's mine; or the point missed entirely? The coevolution of copyright and technological protection measures; a framework for analysis

Abstract

Through the location of the mechanisms and forms that support our current state of being, I seek to illustrate imbalances in legal scholarship pertaining to Technological Protection Measures ('TPM'). In the process of this undertaking, a second intention can be ascertained, namely the inaugural formulation of an analytical framework that not only vitalises TPM scholarship, but other areas of the law grappling with the same technological problems posed by late modernity. This framework is ultimately described as Deleuzo-Foucauldian, emanating from the critical theories of Gilles Deleuze and Michel Foucault and a subset of academics that have either made similar observations, or elaborated on their legacies. After introducing the central preoccupation of this thesis in chapter one, chapter two will outline the critical theories underpinning the Deleuzo-Foucauldian framework I wish to advocate. In chapter three I describe the historical evolution of TPM, and illustrate how the general academic perception that TPM are a distinctly late- modem phenomenon is an illusory myth. Advocating that we undertake the writing of a Foucauldian 'genealogy' of TPM, in this process, will enable us to observe the contingencies that have brought about changes in copyright law and technological development and to observe power relations and diagrammatic shifts that have rendered a correlative evolution of copyright and technology problematic. In chapter four I attend to a strict legal analysis of the law on books, redressing what I perceive to be a predominantly US-centric approach to legal academia pertaining to TPM and copyright, drawing an analysis between US and European legislation. In chapter five I discuss the peculiar relationship of the role of law, with respect to those seeking to pursue legitimate fair use rights or permitted exceptions to copyright prevented by TPM. I also address oft-overlooked rhetorical tropes pertaining to IP generally, and TPM specifically. Finally, in chapter six I offer a conclusion.