Digital Rights Management Systems and Exploitation Analysis Under Article 102 TFEU Revisiting the Interaction Between Intellectual Property and Competition Law

Digital rights management (DRM) systems have traditionally been analyzed under copyright law. However, with the increase of digitalization, the application of DRM systems to restrict certain uses of digital goods has also increased, going beyond the boundaries of intellectual property law. The article argues that, when DRM systems are adopted by a dominant undertaking, competition law should be applied, since such conduct can be qualified as an abusive use of market power. This abuse is analyzed as an exploitative one, pursuant to Art. 102(a) of the Treaty on the Functioning of the European Union (TFEU), based on the argument that the restrictions imposed by DRM degrade the quality (as "functionality") of the digital goods, thus diminishing their economic value and revealing their prices as excessive (or their trading conditions as unfair). The article also explains that certain normative quality parameters established in three EU directives (Directive (EU) 2019/770, Directive 2009/24/EC and Directive 2001/29/EC) can be used jointly to assess the economic value of digital goods.