In November 2004 two affiliates of the Berkman Center for Internet & Society, Urs Gasser and Michael Girsberger, published a research paper on the transposition of the Articles on technological protection measures (TPM) of the European Copyright Directive (EUCD) by various European Union Member States (Member States). In particular it gives an overview of the current state of implementation of Article 6 (circumvention of TPM) and Article 8 (sanctions and remedies) of the European Copyright Directive (EUCD 2001). Countries that had already implemented the EUCD in the last quarter of 2004 were: Austria, Denmark, Germany, Greece, Hungary, Ireland, Italy, Luxemburg, Malta, The Netherlands, Poland, Slovak Republic, Slovenia and the United Kingdom. The aim of the report is neither to describe every single country nor to come up with a critical assessment of all approaches taken, but to present a representative selection of interesting models and to take a critical look at the level of harmonization reached in the Member States.

The report consists of three parts: Part one, "how the Genie got in the bottle", describes the history of the EUCD and the current state of implementation of the EUCD. Part two, "Overview of Article 6 and Article 8 EUCD", describes the subject matters that the report investigates. Part three, "Country-specific analysis", describes the implementation of the EUCD per subject matter in several Member States.

In this review, the first two parts of the report are introduced briefly. As part three is the one where it all comes to a head, most attention is paid to this part.

Part 1: How the genie got in the bottle
The report goes back to the adoption of the WIPO Copyright Treaty (WCT) in 1996 and to the WIPO Performances and Phonograms Treaty (WPPT). Very relevantly, the report observes that already in the Articles 11 WCT and 18 WPPT, the provisions that deal with the circumvention of TPMs, do not define the terms "effective" and "technological measures". Was this the moment where it already went wrong? In my opinion the lack of definitions allowed for rather different approaches, the major ones being the DMCA (1998) and the EUCD (2001). This part also describes the current state of implementation of the EUCD. Since several countries still have not implemented the Directive and are thus still struggling with it, the report concludes saying that "the Genie is stuck in the bottle".

Part 2: Overview of the Articles 6 and 8 EUCD
The second part forms the necessary basis for the country specific analysis in the third part. It describes the Articles 6 (TPM) and 8 (sanctions) of the EUCD focussing on (a) definitions, (b) the relationship between TPMs and exceptions to copyright law, and (c) sanctions & remedies.

(a) Questioning the definitions of the EUCD
Article 6 EUCD protects TPM against circumvention and against the trafficking of circumvention devices and services.

When describing Article 6 (3) (the devices), attention is paid to the lack of an explicit distinction between "access control" and "copy control" devices. Where Article 6 (3) mentions "through application of an access control or protection process such as encryption, scrambling" this leads according to the report to "the presumption that the EUCD does analytically distinguish between access and copy controls but – unlike the DMCA – grants equal treatment to both types of technology". The report mentions later (page 13) that §1201 of the DMCA makes this distinction. Indeed, the distinction between "access control" (measures that effectively control access to a copyrighted work) and "copy control" (measures that effectively protect a right of a copyright owner) is essential in the United States ( see DMCA § 1201; see also Reese 2003).

Circumvention ( § 1201 (a) (1) (A) DMCA ) as well as trafficking in circumvention devices ( § 1201 (a) (2) DMCA) is not allowed with regard to access control mechanisms. In this case, civil remedies and criminal provisions under § 1203 and § 1204 DMCA are possible. It is not forbidden to circumvent copy controls. Trafficking in circumvention devices with regard to copy controls is forbidden and is subject to the provisions § 1203 and § 1204 DMCA (§ 1201 (b) (A) DMCA). Although circumvention of copy controls is not forbidden, remedies are still possible for copyright owners. The circumvention of copy controls can still lead to liability for copyright infringement under § 501(a) DMCA because an unlawful reproduction or distribution might have taken place, but this depends on what is done by the circumventor after the circumvention.

(b) Protection of technological measures and exceptions to copyright
Member States have to take appropriate measures to make sure that it is possible for beneficiaries to benefit from the exceptions that are applicable to the exclusive right of the copyright owner (see also Helberger et al 2004, p.49). The report identifies two main categories of exceptions:

  • Public policy exceptions (such as exceptions in relation to photocopying, copy and archive purposes of educational facilities). Although these exceptions are mandatory, recital 51 EUCD states that appropriate measures should only be taken in absence of voluntary measures taken by rightholders, including the conclusion and implementation of agreements between rightholders and other parties.
  • Private copying exception. In this case Member States may, but are not obliged to take measures to make sure that people are able to make a copy for private use.
The public policy exception as well as the private copying exception do not apply to on-demand services. On demand services are defined in article 6 (4) as "works made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them". What "appropriate measures" are or can include, is not specified by the EUCD.

(c) Sanctions and remedies (Article 8 EUCD)
Important here, is that Member States are obliged to "provide appropriate sanctions and remedies", to "take all the measures necessary to ensure that those sanctions and remedies are applied" and "sanctions have to be effective, proportionate and dissuasive".

Part 3: Country specific analysis
The report describes the implementations of the Articles 6 and 8 EUCD by several Member States. The three aspects introduced in the second part in a general way are used here again for the country comparison. The report convincingly shows the difference of national approaches when implementing the EUCD in Member States.

Unfortunately it is not clear what criteria were used to select the countries that are described per subject matter. Sometimes a country is mentioned only in relation to one aspect (Austria, Ireland, Hungary and Italy), sometimes to two (Greece and the Netherlands), and sometimes in relation to all three aspects (Germany, Denmark and the UK). In this review, only countries that have been described for that particular subject matter are mentioned.

(a) Problems related to the definition of TPM
The report perfectly clarifies why definitions are very important. As an example, region coding of a DVD is used. In practice, two main approaches exist in the area of what acts the EUCD prohibits:
  1. Only TPMs that prevent or restrain uses that are relevant under the copyright law and that would result in copyrights infringements are protected. This is called the narrow interpretation.

  2. TPMs aimed at preventing or restricting any act are protected. This is the broad interpretation. In this scenario there is no connection with the acts that are relevant under copyright law. A connection is made with "the acts that are not authorized by the rightholder". Thus, the acts that are not authorized by the rightholder, are protected against circumvention.

Hungary and Denmark are examples for the narrow interpretation of the definition of TPM. The Danish Act is applicable to TPMs "that are designed to protect works from copying" and the act excludes mere access controls from the protection because access control technologies do not necessarily prevent an act that would constitute an infringement by copyright law. This approach is quite interesting because if a user circumvents a TPM solely to make use of a lawfully acquired work (for instance: breaking the region code of a lawfully acquired DVD to play it on the computer), this circumvention is allowed.

Other countries, like Germany, the UK, and the Netherlands, adopted the broad interpretation. Consequently, in these countries control mechanisms can be protected against circumvention even if the mechanisms are not designed to prevent exclusively acts that are relevant under copyright law.

(b) TPM and exceptions to copyright, Article 6(4) EUCD
With regard to the exceptions to copyright, there are major differences between Member States. I will have a look at the private copying exception, the public policy exception, what if voluntary measures fail and finally at the definition of "on demand services".

Private copying exception?
The approach to the private copying exception is different among Member States. In Denmark private copying is not mentioned at all. In the UK the act expressively refers to "time-shifting" as the only private copying exception permitted and in Greece only reproduction for private use on paper or any similar medium is mentioned. In Italy it is possible to make one copy for personal use provided that a) the user has obtained legal access to the work and b) the act neither conflicts with the normal exploitation of the work nor unreasonably prejudices the legitimate interests of the rightholder.

Public policy exceptions?
In Ireland and Greece, rightholders should make available means to beneficiaries to benefit from the exceptions. The Austrian and the Dutch approach is the wait and see strategy (using recital 51 EUCD) and therefore there are no exceptions to the anti-circumvention provision. In Austria a recently conducted survey shows that the voluntary measures taken by rightholders are in compliance with the EUCD (Bericht Bundesministerin für Justiz, 2004). Although there are problematic areas (i.e. access and copy protection technology on CDs and DVDs) no legislative measures have been announced.

What if voluntary measures fail?
In case rightholders do not take voluntary measures or when the measures do not allow the use of an exemption in the eyes of the beneficiaries, it depends on the country which steps need to be taken by beneficiaries. Sometimes beneficiaries may apply directly to the Copyright License Tribunal (Denmark), High Court (Ireland) or Secretary of State (UK). In Denmark, when rightholders do not comply with the order within four weeks, beneficiaries may legally circumvent the TPM, as long as the consumer has gained legal access to the work. They don’t need approval of the Tribunal or anyone else to do this. In other countries, like Greece, the solution is sought in mediation (with the possibility to go to Court of Appeal of Athens).

On-demand service
What is noteworthy with regard to the exclusion of the "on demand services" from the applicability of Article 6 (4) par 1 and 2, is that the countries that implemented exceptions (Ireland, UK, Denmark and Greece), all use the exact sentence used in the EUCD to describe "on demand services" as "works made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them".

(c) Sanctions and remedies, Article 8 EUCD
The implementation of Article 8 is very diverse, in some countries huge criminal sanctions are possible (imprisonment or a fine of 2,900 – 15,000 Euro in Greece or 10,000 – 50,000 Euro in Germany), whilst in other countries there is no imprisonment and only a small fine (Denmark).

There is a difference in what acts can be subject to penalties. In the UK, there are no criminal sanctions for the circumvention of TPMs as long as it is conducted for private and non-commercial use. The UK also has a special Article in which is stated that the infringement that occurs in the course of business or "to an extent that prejudicially affects the rightholder" can be qualified as a criminal offence.

In Denmark, Greece and Germany, circumvention of TPMs as well as the trafficking in circumvention devices can be punished under civil and criminal law. Imprisonment for these acts in Denmark is not possible. In Greece imprisonment of at least one year is possible. Germany makes a distinction between the circumvention of TPMs (imprisonment up to one year or a fine) and the trafficking in circumvention devices (imprisonment up to three years in case of professional purposes or a fine). Remarkable is the fact that in Germany (similar to the UK) no criminal sanctions are applied in case the act has been exclusively performed for, or in relation, to private use by the offender or individuals personally connected with him.

Conclusions of the report
The report ends with two concluding remarks. First of all, the report draws the conclusion that the Member States are still struggling "with some problems already identified at the level of the EUCD, such as the definition of TPMs, scope of protection and the interface to exceptions, and the question of effective , but also adequate sanctions and remedies". Most countries leave it to the national courts and the European Court of Justice to "fine tune the new legislation".

Secondly, the authors conclude that although the EUCD has led to a certain level of harmonization, significant differences remain. Also, it remains to be seen what the ramifications of these differences will be, for instance with regard to the further development of digital media markets, technological innovation, and the evolution of the "regulatory ecosystem".

A bit of discussion
Overall the report gives a good idea of how different some implementations work out when they are applied to the examples mentioned in the report. The comparison between the DMCA and the EUCD regarding the distinction between access and copy control is interesting and certainly deserves more research and discussion in Europe.

One point of criticism; the report notes in the section about the private copy exception, that Italy "might stand alone in this issue" because some recent court rulings in France, Belgium and Germany all decided against a "right to private copying". Against this opinion, one could argue that although there may not exist a right that consumers can enforce as consumer in court, this does not mean that the private copying exception ceases to exist.

Unfortunately (besides the fact that the selection criteria for the countries chosen are not explained) the consequence of working with a selection of countries is that it is not possible to make an overall schedule of which countries use a narrow approach, and which countries use a broad approach, or to make any profound aggregation at all of the implementations of the articles 6 and 8 EUCD, because the selected countries for the subject matters vary. An overall view of the implementations would be helpful when assessing the implementations of the articles 6 and 8 EUCD in the Member States.

Lastly, the issue of region coding mentioned by the report is quite interesting. How can region coding be qualified and what are the consequences of the qualification in combination with the approach of a Member State with regard to the definitions of TPM in the EUCD, i.e. does a country use a broad or a narrow definition. At the moment, the difference in treatment regarding region coding in different Member States does not result in harmonization of "a European approach" at all.

Bottom line
Overall, the report is very well written and easy to read for lawyers and non-lawyers. The report also draws an interesting picture of the implementation struggle and the diversity of implementation paths with respect to the focus chosen. Finally, it invites to further investigate the consequences of a narrow or a broad interpretation of what TPMs are protected by the EUCD.


About the author: Margreet Groenenboom is project researcher at the Institute for Information Law, University of Amsterdam. She specialises in copyright law, patent law and law & information technology. Contact: + 31 20 525 7382,

Status: first posted 21/03/05; licensed under Creative Commons