Advanced Copyright Issues on the Internet - Fenwick & West LLP

In March of 2005, a German court, on the basis of the anti-circumvention provision ofGerman copyright law, prohibited the German news site Heise from linking in an online articleto a site where circumvention software was made available. 10114. Fair Use(a) United States Legislation That Did Not PassBoth S. 1146 and H.R. 3048 – neither of which were ultimately adopted by Congress –contained identical provisions with respect to application of the fair use doctrine in a digitalenvironment. These bills would have amended Section 107 of the copyright statute (the fair useexemption) in two ways. First, they would have added an amendment providing that the fair usedoctrine applies to uses of a copyrighted work “by analog or digital transmission.” Second, theywould have added a new sentence to Section 107 providing that, in making a determinationconcerning fair use, a court should give no independent weight to the means by which the workhas been performed, displayed or distributed under the authority of the copyright owner, or theapplication of an effective technological measure to protect the work. The import of thisprovision appears to have been (i) to clarify that digital uses of a copyrighted work may be a fairuse notwithstanding that the copyright owner has authorized use of the work only in other mediaor modes and (ii) that the fair use exemption may apply even if an effective technologicalmeasure must be circumvented to use the work (as in the case of reverse engineering). However,as discussed above, both the RealNetworks and the Reimerdes cases held that fair use is not adefense to a claim for violation of the anti-circumvention provisions of Section 1201(a); thus, thefact that a defendant circumvented a technological protection measure in order to gain access toa copyrighted work to make fair uses of it does not provide a defense.(b) The European <strong>Copyright</strong> DirectiveArticle 5(3) of the European <strong>Copyright</strong> Directive permits member states to adoptlimitations to the rights of reproduction and of communication or making available to the publicfor the following fair use purposes:– for illustration for teaching or scientific research for noncommercial purposes, as longas the source, including the author’s name, is indicated;– for the benefit of people with a disability, which are directly related to the disabilityand of a noncommercial nature, to the extent required by the specific disability;– use of short excerpts in connection with the reporting of current events, so long as thesource, including the author’s name, is indicated;– quotations for purposes such as criticism or review of a work that has been lawfullymade available to the public, so long as the source, including the author’s name, is indicated andthe use is in accordance with fair practice;1011 “Court Prohibits Linking to Circumvention Software” (Mar. 7, 2005), available as of Mar. 8, 2005 athttp://constitutionalcode.blogspot.com/2005/03/court-prohibits-linking-to.html.- 227 -