the application or non-application of technological measures referred to in Article
6 to the work or subject-matter concerned;(c) in respect of specific acts of reproduction made by publicly accessible
libraries, educational establishments or museums, or by archives, which are not
for direct or indirect economic or commercial advantage;(d) in respect of ephemeral recordings of works made by broadcasting
organizations by means of their own facilities and for their own broadcasts; the
preservation of these recordings in official archives may, on the ground of their
exceptional documentary character, be permitted;(e) in respect of reproductions of broadcasts made by social institutions pursuing
non-commercial purposes, such as hospitals or prisons, on condition that the
rightholders receive fair compensation.It is interesting to note that the majority of these exceptions are conditioned upon the
rightholders receiving fair compensation, and they cover only copying that is for non-
commercial purposes. Exception (b) is of particular interest, for it provides a right for natural
persons to make copies for private use and for purposes that are neither directly or indirectly
commercial, provided the rightholders receive fair compensation. Presumably the exception
would apply where a natural person has purchased a copy of a copyrighted work, thereby
providing fair compensation to the rightholders, and thereafter makes additional copies for
personal, noncommercial uses – e.g., by making a copy of one’s purchased music CD onto a
cassette for use in one’s car. The drafters of the European Copyright Directive deemed this right
of private use to be of such significance that under Article 6(4), member states are permitted to
take measures to ensure that beneficiaries of this right are able to take advantage of it, “unless
reproduction for private use has already been made possible by rightholders to the extent
necessary to benefit from the exception or limitation concerned and in accordance with the
provisions of Article 5(2)(b) and (5), without preventing rightholders from adopting adequate
measures regarding the number of reproductions in accordance with these provisions.”^292
The right of private use contained in Article 5(2)(b) is similar to a right afforded in the
United States under the Audio Home Recording Act (AHRA), 17 U.S.C. § 1008, which provides,
“No action may be brought under this title alleging infringement of copyright based on the
manufacture, importation, or distribution of a digital audio recording device, a digital audio
recording medium, an analog recording device, or an analog recording medium, or based on the
noncommercial use by a consumer of such a device or medium for making digital musical
recordings or analog musical recordings.” This statute is discussed in detail in Section II.A.7
below, and in Section III.C.2.(c)(1) below in connection with the Napster litigations. Napster,
Inc., the operator of a service that enabled subscribers to share music files in MP3 audio format
(^292) Under the last paragraph of Article 6(4), this right of member states to take measures to ensure that beneficiaries
of the right of private use are able to take advantage of it does not apply “to works or other subject-matter 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.”