information that could be attached to the protected material.”^1452 By contrast, the definition of
CMI under the DMCA is broad enough to cover more than just electronic information.
- Anti-Circumvention Provisions in Other Foreign Countries
Some countries outside the European Union have adopted anti-circumvention provisions
in their copyright laws. For example, effective March 2001 Australia added a new Section 116A
to 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, in
the ordinary course of its operation, to prevent or inhibit the infringement of copyright in a work
or other subject-matter.”^1453 In October of 2005, the High Court of Australia unanimously ruled
that distributing mod chips to overcome region coding on the PlayStation video games was not a
violation of Section 116A. The court reasoned that the region coding scheme did not constitute a
technological protection measure.^1454
In 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, constituted
a valid “technological protection measure,” and that the defendant had violated Section 116A by
distributing modification chips that overcame the regional restrictions on play of the games.^1455
In March of 2005, a German court, on the basis of the anti-circumvention provision of
German copyright law, prohibited the German news site Heise from linking in an online article
to a site where circumvention software was made available.^1456
- 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 digital
environment. These bills would have amended Section 107 of the copyright statute (the fair use
exemption) in two ways. First, they would have added an amendment providing that the fair use
doctrine applies to uses of a copyrighted work “by analog or digital transmission.” Second, they
would have added a new sentence to Section 107 providing that, in making a determination
concerning fair use, a court should give no independent weight to the means by which the work
has been performed, displayed or distributed under the authority of the copyright owner, or the
(^1452) Commentary to Art. 7, ¶ 1.
(^1453) “Australian Federal Court Upholds Region Coding Restrictions on Video Game System,” BNA’s Electronic
Commerce & Law Report (Aug. 20, 2003) at 802.
(^1454) 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.
(^1455) Id.
(^1456) “Court Prohibits Linking to Circumvention Software” (Mar. 7, 2005), available as of Mar. 8, 2005 at
http://constitutionalcode.blogspot.com/2005/03/court-prohibits-linking-to.html.