You've just hit the limit of my knowledge, care to explain?
Burnsy
Promusicae was a case about transfer of confidential data from ISPs to groups such as the IFPI/RIAA etc. It's important in this particular instance though because the ECJm made a more general comment that '
a fair balance [must]
be struck between the various fundamental rights protected by the Community'. In this instance it would be easily arguable that stopping a backup copy, in cases where TPM/DRM technology is used, is taking away a fundamental right under Protocol 1 ECHR (right to property specifically). It would, IMHO, thus be very simple to say that this was prime area for S50A to be creating a caveat in s296ZA. Promusicae was only decided at the end of January so people are still discussing this so it's not completely clear, but certainly that's my take on it.
Perhaps more important than this is the prevailing wind amongst both academics and judges that TPMs have been given far far to much protection than they should have been given. Indeed I was at an event only yesterday where Rob Hamadi, head of e-crime at the Publishers Association (basically the RIAA for books) and he was ripping in to DRM. Even John Kennedy (CEO of IFPI) all but said that over the next year + they're moving away from suing people and putting most their eggs into the decidedly un-watertight basket of ISPs monitoring users (presuming the consultation comes back in October(ish) with agreement of a move towards that).
The Gowers review asked for the frankly ridiculous alteration that it be made easier to contact the Patent Office in cases where consumers feel DRM is stopping them using any other rights. Whilst any system based around the average consumer contacting the Patent Office every time they want to break DRM is unworkable at least it showed again that the prevailing wind is against TPMs.
DRM really shouldn't have ended up in the CDPA - just like the Database directive really shouldn't even exist. Adrian Brazier seems at least hopeful, however, that the EU might start getting its house in order - certainly he kept talking about them moving towards a more evidence based legislation approach (which in both the cases of DRM and Databases, they went against).