Advanced Copyright Issues on the Internet - Fenwick & West LLP

concerned that digital television broadcasts and movies copied from DVDs would soon be tradedover the Internet in high volumes. 10022. Anticircumvention Provisions Under the European <strong>Copyright</strong> DirectiveThe European <strong>Copyright</strong> Directive adopts the approach of the DMCA, in that it wouldoutlaw both conduct and the manufacture or distribution of devices that could be used to defeattechnological copyright protections. With respect to conduct, Article 6(1) provides that memberstates “shall provide adequate legal protection against the circumvention of any effectivetechnological measures, which the person concerned carries out in the knowledge, or withreasonable grounds to know, that he or she is pursuing that objective.” 1003 The language ofArticle 6(1) includes a knowledge requirement that is not expressly present in the prohibition ofSection 1201(a)(1)(A) of the DMCA. But unlike the DMCA, there are no enumeratedexceptions to the ban on circumvention in the European <strong>Copyright</strong> Directive. 1004Like the DMCA, the European <strong>Copyright</strong> Directive does not require that thecircumvention of the technical measures be done for the purpose of facilitating or engaging in anact of infringement. However, the commentary to Article 6 elaborates on the requirement ofknowledge by the party liable for the circumvention in a way that suggests a standard of liabilitythat may be somewhat akin to that of the Sony case in the United States: “This [requirement ofknowledge] would allow for the necessary flexibility – a fundamental element for the industry –not to cover activities which are related to devices which may serve a legal or illegal use and arecarried out without the actual knowledge that they will enable circumvention of technologicalprotection devices.” 1005 It remains to be seen how broadly this provision will be implemented bymember states.1002 Amy Harmon, “Music Industry Won’t Seek Government Aid on Piracy” (Jan. 15, 2003), available as of Jan.15, 2003 at www.nytimes.com/2003/01/15/business/15PIRA.html.1003 Notwithstanding the general prohibition on circumvention of effective technological measures, Article 6(4)provides that, “in the absence of voluntary measures taken by rightholders, including agreements betweenrightholders and other parties concerned, Member States shall take appropriate measures to ensure thatrightholders make available to the beneficiary of an exception or limitation provided for in national law inaccordance with Article 5(2)(a), (2)(c), (2)(d), (2)(e), (3)(a), (3)(b) or (3)(e) the means of benefiting from thatexception or limitation, to the extent necessary to benefit from that exception or limitation and where thatbeneficiary has legal access to the protected work or subject-matter concerned.”1004 Schollenberger, supra note 180, at 12. The European <strong>Copyright</strong> Directive attempts to deal with this issue viaArticle 6(4), which states that “Member States should promote voluntary measures taken by right holders,including the conclusion and implementation of agreements between rights holders and other parties concerned,to accommodate achieving the objectives of certain exceptions or limitations provided for in national law.” Itfurther states that in the absence of such voluntary measures or agreements, within a reasonable period of timeMember States are obliged to take appropriate measures to ensure that right holders provide beneficiaries ofsuch exceptions or limitations with “appropriate means” of benefiting from them, by modifying an implementedtechnological protection measure or by other means. What such “appropriate measures” would be remainsunclear. Id.1005 Commentary to Art. 6, 2.- 223 -