Advanced Copyright Issues on the Internet - Fenwick & West LLP

With respect to the manufacture or distribution of devices that could be used to defeattechnological copyright protections, Article 6(2) provides that member states “shall provideadequate legal protection against the manufacture, import, distribution, sale, rental,advertisement for sale or rental, or possession for commercial purposes of devices, products orcomponents or the provision of services which:(a) are promoted, advertised or marketed for the purpose of circumvention of, or(b) have only a limited commercially significant purpose or use other than tocircumvent, or(c) are primarily designed, produced, adapted or performed for the purpose ofenabling or facilitating the circumvention of, any effective technologicalmeasures.”The foregoing three criteria are very similar to the criteria enumerated in the prohibition oftechnology, devices and services contained in Sections 1201(a)(2) and 1201(b) of the DMCA.However, by prohibiting preparatory activities to circumvention, Article 6(2) goes further thanthe WIPO <strong>Copyright</strong> Treaty requires. 1006One possible difference between the European <strong>Copyright</strong> Directive and the DMCA maylie in the scope of what types of technological measures are prohibited from circumvention.Specifically, the prohibitions of the DMCA are expressly directed toward technology, devicesand services that circumvent technological measures that effectively control access to acopyrighted work and protect rights of a copyright holder. By contrast, the definition of“technological measures” in the European <strong>Copyright</strong> Directive, at first glance, seems directedonly toward protecting rights of a copyright holder, and not restricting access. Article 6(3)defines the expression “technological measures” to mean “any technology, device or componentthat, in the normal course of its operation, is designed to prevent or restrict acts, in respect ofworks or other subject-matter, which are not authorized by the rightholder of any copyright orany right related to copyright as provided for by law or the sui generis right provided for inChapter III of Directive 96/9/EC.”However, the concept of access control seems to come into the European <strong>Copyright</strong>Directive indirectly, through the definition of “effective.” Specifically, Article 6(3) provides thattechnological measures shall be deemed “effective” where “the use of a protected work or othersubject-matter is controlled by the rightholders through application of an access control orprotection process, such as encryption, scrambling or other transformation of the work or othersubject-matter or a copy control mechanism, which achieves the protection objective” (emphasisadded). Thus, through the interaction of these definitions of “technological measures” and“effective,” it appears that the European <strong>Copyright</strong> Directive effectively prohibits thecircumvention of technological measures that both control access and that protect the rights of acopyright holder, just as does the DMCA.1006 Harrington & Berking, supra note 179, at 6.- 224 -