IPR protection in terms of online diffusion is ambiguous in theory and is closely related with jurisdictional and other cross-border issues. This has facilitated the emergence of various technological measures used by right holders to ensure their work is exploited digitally in a manner consistent with their own artistic or economic preferences.

Article 11 of WIPO Copyright Treaty mentions that ‘effective technological measures can be used by authors in connection with the exercise of their exclusive rights’. Such technological measures can restrict acts in respect of the author’s work which are not authorized by him/her or permitted by law. What’s more the relevant article also postulates that adequate legal protection and effective legal remedies against the circumvention of those measures should be granted to the right holder. The European Directive 2001/29/EC of the European Parliament and of the council of May 22, 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (the InfoSoc Directive) brings the protection one step further by granting legal protection against the manufacture, import, distribution, sale, rental, advertisement and possession of any tools or the provision of services which are able to circumvent such copyright defensive technological measures.

Copyright enhancing technologies may provide access control (by password protection, time access control, which limits the duration of the allowed use, and other) or introduce other protection measure, such as encryption, scrambling or other transformation of the work or a copy control mechanism. The circumvention of such technologies in order to receive access to the protected work would constitute a violation of the author’s exclusive rights and will be subject to direct liability.

Nonetheless, according to the InfoSoc Directive technological measures cannot impose an unreasonably wide restriction in the use of the work. Article 6 (4) of the Directive sets forth that right holders are obliged to make available their work to the beneficiaries in certain cases of copyright exceptions, such as the use of the work by libraries, public institutions, people with disabilities, schools, pursing teaching purposes, etc. Regardless of the restrictive technological measures utilized by the right holder, the latter will have to provide access to his/her work to the extent necessary to benefit from that exception or limitation.