Advanced Copyright Issues on the Internet - Fenwick & West LLP

would have “independent economic significance” is unclear). 179 The exception does not apply tocomputer programs or databases because they are separately regulated in other Directives. 180Thus, the European <strong>Copyright</strong> Directive adopts an approach that affords the reproductionright a very broad inherent scope, but provides an explicit and automatic exemption for copiesthat are made incidental to the use 181 of a work through a technological process, such astransmission through a network or loading into memory for viewing or playing of the work.Indeed, Recital (33) of the European <strong>Copyright</strong> Directive notes that the exception of Article 5(1)“should include acts which enable browsing as well as acts of caching to take place, includingthose which enable transmission systems to function efficiently, provided that the intermediarydoes not modify the information and does not interfere with the lawful use of technology, widelyrecognized and used by industry, to obtain data on the use of the information.”According to Recital (32) of the European <strong>Copyright</strong> Directive, the final Directive, unlikeits predecessor drafts, opted for an approach of listing “an exhaustive enumeration of exceptionsand limitations to the reproduction right and the right of communication to the public.” Theseexceptions and limitations are enumerated in Articles 5(2) and 5(3). The exceptions andlimitations in Article 5(2) apply only to the reproduction right, whereas the exceptions andlimitations in Article 5(3) apply to both the reproduction right and the right of communication tothe public.Under Article 5(2), member states may provide for exceptions or limitations to thereproduction right in the following cases:(a) in respect of reproductions on paper or any similar medium, effected by theuse of any kind of photographic techniques or by some other process havingsimilar effects, with the exception of sheet music, provided that the rightholdersreceive fair compensation;(b) in respect of reproductions on any medium made by a natural person forprivate use and for ends that are neither directly or indirectly commercial, oncondition that the rightholders receive fair compensation which takes account ofthe application or non-application of technological measures referred to in Article6 to the work or subject-matter concerned;179180181Justin Harrington & Tina Berking, “Some Controversial Aspects of the EU <strong>Copyright</strong> Directive (Directive2001/29/EC),” Cyberspace Lawyer, Jan. 2003, at 2, 3-4. The Electronic Commerce Directive containsexemptions in respect of hosting, caching and acting as a mere conduit. Id. at 4.David Schollenberger, “Entertainment Without Borders” (Mar. 2003), at 9 (seminar paper on file with theauthor).An earlier version of Art. 5(1) provided that the use of the work must be “authorized or otherwise permitted bylaw.” A copy of an earlier version of the European <strong>Copyright</strong> Directive and comments may be found atwww.bna.com/e-law/docs/ecdraft.html (last modified Dec. 2, 1997).- 53 -