Advanced Copyright Issues on the Internet - Fenwick & West LLP

An important thing to note is that the anti-circumvention provisions of Article 6 of theEuropean <strong>Copyright</strong> Directive do not apply to computer programs. Instead, a different, and morelimited, set of anti-circumvention provisions apply to computer programs under Directive91/250/EEC on the Legal Protection of Computer Programs (the “European SoftwareDirective”), discussed in the next paragraph. Article 2(a) of the European <strong>Copyright</strong> Directivestates that the “Directive shall leave intact and shall in no way affect existing Communityprovisions relating to the legal protection of computer programs.” And Recital 50 of theEuropean <strong>Copyright</strong> Directive states that its harmonized legal protection “does not affect thespecific provisions on protection provided for by Directive 91/250/EEC [the European SoftwareDirective]. In particular, it should not apply to the protection of technological measures used inconnection with computer programs, which is exclusively addressed in that Directive.”The narrower anti-circumvention provisions applicable to computer programs are setforth in Article 7(1)(c) of the European Software Directive, which requires member states toprovide appropriate remedies against “any act of putting into circulation, or the possession forcommercial purposes of, any means the sole intended purpose of which is to facilitate theunauthorized removal or circumvention of any technical device which may have been applied toprotect a computer program.” There are a couple of important distinctions between the anticircumventionprovisions of the European Software Directive and those of the European<strong>Copyright</strong> Directive:-- The anti-circumvention provisions of the European Software Directive are aimed atpreventing the manufacture and distribution of circumvention devices. Unlike the relevantprovisions of the European <strong>Copyright</strong> Directive, they do not prohibit the actual conduct ofcircumvention itself.-- The anti-circumvention provisions of the European Software Directive apply only todevices that have circumvention as their sole intended purpose, which is narrower than the anticircumventionprovisions of the European <strong>Copyright</strong> Directive that apply to devices that havecircumvention as their primary purpose, or are promoted, advertised or marketed for the purposeof circumvention, or have only a limited commercially significant purpose or use other than tocircumvent.Article 7(1) of the European <strong>Copyright</strong> Directive deals with CMI, which the European<strong>Copyright</strong> Directive denominates “electronic rights management information.” Specifically,Article 7(1) requires member states to prohibit any person knowingly performing withoutauthority any of the following acts:“(a) the removal or alteration of any electronic rights-management information;(b) the distribution, importation for distribution, broadcasting, communication or makingavailable to the public of works or other subject-matter protected under this Directive orunder Chapter III of Directive 96/9/EC from which electronic right-managementinformation has been removed or altered without authority,if such person knows, or has reasonable grounds to know, that by so doing he is inducing,enabling, facilitating or concealing an infringement of any copyright or any rights related- 225 -