- use of an artistic work in the form of a building or a drawing or plan of a building for
reconstructing the same; - use by communication or making available to individual members of the public by
dedicated terminals in publicly accessible libraries, educations establishments, museums or
archives for noncommercial purposes; and - use in certain other cases of minor importance where exceptions or limitations already
exist under national law, provided that concern only analog uses and do not affect the free
circulation of goods and services within the EC.
Article 5(5) provides that in all cases, the limitations “shall only be applied in certain
special cases which do not conflict with a normal exploitation of the work or other subject-matter
and do not unreasonably prejudice the legitimate interests of the rightholder.”
- Expansion of Library/Archives Exemptions
Section 404 of the DMCA expands the scope of the exemption in Section 108 of the
copyright statute for libraries and archives. Specifically, Section 108 authorizes libraries and
archives to make three copies of works for preservation purposes, rather than one. Section 108
also deletes the requirement that the copies be made “in facsimile form.” According to Rep.
Boucher, this phrase in the pre-amended version of Section 108 had been read to preclude the
use of digital technologies to preserve works.^1457 Under the amended Section 108, a work may
be copied for preservation purposes if it is currently in the collections of the library or archives
and, if reproduced in digital format, it is not otherwise distributed in that format and is not made
available to the public in that format outside the premises of the library or archives.
- Distance Education
Section 403 of the DMCA requires that, within six months after enactment, the Register
of Copyrights submit to Congress recommendations on how to promote distance education
through digital technologies, including interactive digital networks, while maintaining an
appropriate balance between the rights of copyright owners and the needs of users of copyrighted
works. The DMCA lists a number of factors that should be considered in making such
recommendations.^1458
(^1457) “Latest Copyright Treaty Implementation Bill Limits Scope of Shrink-Wrap Agreements,” BNA’s Electronic
Information Policy & Law Report (Nov. 26, 1997) at 1232.
(^1458) The factors include: The need for an exemption from exclusive rights of copyright owners for distance
education through digital networks; the categories of works to be included under the exemption; the extent of
appropriate quantitative limitations on the portions of works that may be used under the exemption; the parties
who should be entitled to the benefits of the exemption; the parties who should be designated as eligible
recipients of distance education materials under the exemption; whether and what types of technological
measures can or should be employed as a safeguard against unauthorized access to and use or retention of
copyrighted materials as a condition of eligibility for any exemption; and the extent to which the availability of
licenses for the use of copyrighted works in distance education through interactive digital networks should be
considered in assessing eligibility for the exemption.