Advanced Copyright Issues on the Internet - Fenwick & West LLP

to copyright as provided by law, or of the sui generis right provided in Chapter III ofDirective 96/9/EC.”Article 7(2) defines “rights management information” broadly to mean “any informationprovided by rightholders which identifies the work or other subject-matter referred to in thisDirective or covered by the sui generis right provided for in Chapter III of Directive 96/9/EC,the author or any other rightholder, or information about the terms and conditions of use of thework or other subject-matter, and any numbers or codes that represent such information. Thefirst subparagraph shall apply when any of these items of information is associated with a copyof, or appears in connection with the communication to the public of, a work or other subjectmatter referred to in this Directive or covered by the sui generis right provided for in Chapter IIIof Directive 96/9/EC.”The scope of Article 7 is potentially narrower than that of the United States implementinglegislation. The prohibitions of Article 7(1) are all expressly directed to “electronic” rightsmanagementinformation. In addition, the commentary states that Article 7 “aims only at theprotection of electronic rights management information, and does not cover all kinds ofinformation that could be attached to the protected material.” 1007 By contrast, the definition ofCMI under the DMCA is broad enough to cover more than just electronic information.3. Anti-Circumvention Provisions in Other Foreign CountriesSome countries outside the European Union have adopted anti-circumvention provisionsin their copyright laws. For example, effective March 2001 Australia added a new Section 116Ato its copyright law, which prohibits circumvention of a “technological protection measure,”defined as “a device or product, or a component incorporated into a process, that is designed, inthe ordinary course of its operation, to prevent or inhibit the infringement of copyright in a workor other subject-matter.” 1008 In October of 2005, the High Court of Australia unanimously ruledthat distributing mod chips to overcome region coding on the PlayStation video games was not aviolation of Section 116A. The court reasoned that the region coding scheme did not constitute atechnological protection measure. 1009In July of 2003, the Federal Court of Australia held that region access codes in CD-ROMs of PlayStation games, as well as a companion chip in the PlayStation console, constituteda valid “technological protection measure,” and that the defendant had violated Section 116A bydistributing modification chips that overcame the regional restrictions on play of the games. 10101007 Commentary to Art. 7, 1.1008 “Australian Federal Court Upholds Region Coding Restrictions on Video Game System,” BNA’s ElectronicCommerce & Law Report (Aug. 20, 2003) at 802.1009 Murray Griffin, “Fair Use Ruling on TPMs Raises Concern That Australian Law May Conflict with FTA,”BNA’s Electronic Commerce & Law Report (Oct. 12, 2005) at 982.1010 Id.- 226 -