Article 6(1) includes a knowledge requirement that is not expressly present in the prohibition of
Section 1201(a)(1)(A) of the DMCA. But unlike the DMCA, there are no enumerated
exceptions to the ban on circumvention in the European Copyright Directive.^1449
Like the DMCA, the European Copyright Directive does not require that the
circumvention of the technical measures be done for the purpose of facilitating or engaging in an
act of infringement. However, the commentary to Article 6 elaborates on the requirement of
knowledge by the party liable for the circumvention in a way that suggests a standard of liability
that may be somewhat akin to that of the Sony case in the United States: “This [requirement of
knowledge] would allow for the necessary flexibility – a fundamental element for the industry –
not to cover activities which are related to devices which may serve a legal or illegal use and are
carried out without the actual knowledge that they will enable circumvention of technological
protection devices.”^1450 It remains to be seen how broadly this provision will be implemented by
member states.
With respect to the manufacture or distribution of devices that could be used to defeat
technological copyright protections, Article 6(2) provides that member states “shall provide
adequate legal protection against the manufacture, import, distribution, sale, rental,
advertisement for sale or rental, or possession for commercial purposes of devices, products or
components or the provision of services which:
(a) are promoted, advertised or marketed for the purpose of circumvention of, or(b) have only a limited commercially significant purpose or use other than to
circumvent, or(c) are primarily designed, produced, adapted or performed for the purpose of
enabling or facilitating the circumvention of, any effective technological
measures.”The foregoing three criteria are very similar to the criteria enumerated in the prohibition of
technology, devices and services contained in Sections 1201(a)(2) and 1201(b) of the DMCA.
However, by prohibiting preparatory activities to circumvention, Article 6(2) goes further than
the WIPO Copyright Treaty requires.^1451
(^1449) Schollenberger, supra note 290, at 12. The European Copyright Directive attempts to deal with this issue via
Article 6(4), which states that “Member States should promote voluntary measures taken by right holders,
including the conclusion and implementation of agreements between rights holders and other parties concerned,
to accommodate achieving the objectives of certain exceptions or limitations provided for in national law.” It
further states that in the absence of such voluntary measures or agreements, within a reasonable period of time
Member States are obliged to take appropriate measures to ensure that right holders provide beneficiaries of
such exceptions or limitations with “appropriate means” of benefiting from them, by modifying an implemented
technological protection measure or by other means. What such “appropriate measures” would be remains
unclear. Id.
(^1450) Commentary to Art. 6, ¶ 2.
(^1451) Harrington & Berking, supra note 289, at 6.