Last June, Portugal enacted Law No. 36/2017 which bans putting DRM on public domain media or government works, and allows the public to break DRM that interferes with their rights in copyright, including private copying, accessibility adaptation, archiving, reporting and commentary and more.



Regrettably, the law doesn't go so far as to authorize the creation of tools to break DRM that has been improperly used, so the public is forced to hunt around online for semi-legal tools with anonymous authors of unknown quality.





That said, this is the first remotely balanced DRM law I've heard of since the passage of the DMCA in 1998, which bans breaking DRM under any circumstances, and has gotten in the way of accessibility, competition, fair use, first sale, archiving, security research and innovation.

The amendments to Articles 217 and 221 of Portugal's Code of Copyright and Related Rights do three things. First, they provide that the anti-circumvention ban doesn't apply to circumvention of DRM in order to enjoy the normal exercise of copyright limitations and exceptions that are provided by Portuguese law. Although Portugal doesn't have a generalized fair use exception, the more specific copyright exceptions in Articles 75(2), 81, 152(4) and 189(1) of its law do include some key fair uses; including reproduction for private use, for news reporting, by libraries and archives, in teaching and education, in quotation, for persons with disabilities, and for digitizing orphan works. The circumvention of DRM in order to exercise these user rights is now legally protected. Second and perhaps even more significantly, the law prohibits the application of DRM to certain categories of works in the first place. These are works in the public domain (including new editions of works already in the public domain), and to works published or financed by the government. This provision alone will be a boon for libraries, archives, and for those with disabilities, ensuring that they never again have to worry about being unable to access or preserve works that ought to be free for everyone to use. The application of DRM to such works will now be an offence under the law, and if DRM has been applied to such works nevertheless, it will be permitted for a user to circumvent it. Third, the law also permits DRM to be circumvented where it was applied without the authorization of the copyright holder. From now on, if a licensee of a copyright work wishes to apply DRM to it when it is distributed in a new format or over a new streaming service, the onus will be on them to ask the copyright owner's permission first. If they don't do that, then it won't be an offence for its customers to bypass the DRM in order to obtain unimpeded access to the work, as its copyright owner may well have intended.

Portugal Bans Use of DRM to Limit Access to Public Domain Works

[Jeremy Malcolm/EFF]