One possible difference between the European Copyright Directive and the DMCA may
lie in the scope of what types of technological measures are prohibited from circumvention.
Specifically, the prohibitions of the DMCA are expressly directed toward technology, devices
and services that circumvent technological measures that effectively control access to a
copyrighted work and protect rights of a copyright holder. By contrast, the definition of
“technological measures” in the European Copyright Directive, at first glance, seems directed
only toward protecting rights of a copyright holder, and not restricting access. Article 6(3)
defines the expression “technological measures” to mean “any technology, device or component
that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of
works or other subject-matter, which are not authorized by the rightholder of any copyright or
any right related to copyright as provided for by law or the sui generis right provided for in
Chapter III of Directive 96/9/EC.”
However, the concept of access control seems to come into the European Copyright
Directive indirectly, through the definition of “effective.” Specifically, Article 6(3) provides that
technological measures shall be deemed “effective” where “the use of a protected work or other
subject-matter is controlled by the rightholders through application of an access control or
protection process, such as encryption, scrambling or other transformation of the work or other
subject-matter or a copy control mechanism, which achieves the protection objective” (emphasis
added). Thus, through the interaction of these definitions of “technological measures” and
“effective,” it appears that the European Copyright Directive effectively prohibits the
circumvention of technological measures that both control access and that protect the rights of a
copyright holder, just as does the DMCA.
An important thing to note is that the anti-circumvention provisions of Article 6 of the
European Copyright Directive do not apply to computer programs. Instead, a different, and more
limited, set of anti-circumvention provisions apply to computer programs under Directive
91/250/EEC on the Legal Protection of Computer Programs (the “European Software
Directive”), discussed in the next paragraph. Article 2(a) of the European Copyright Directive
states that the “Directive shall leave intact and shall in no way affect existing Community
provisions relating to the legal protection of computer programs.” And Recital 50 of the
European Copyright Directive states that its harmonized legal protection “does not affect the
specific provisions on protection provided for by Directive 91/250/EEC [the European Software
Directive]. In particular, it should not apply to the protection of technological measures used in
connection with computer programs, which is exclusively addressed in that Directive.”
The narrower anti-circumvention provisions applicable to computer programs are set
forth in Article 7(1)(c) of the European Software Directive, which requires member states to
provide appropriate remedies against “any act of putting into circulation, or the possession for
commercial purposes of, any means the sole intended purpose of which is to facilitate the
unauthorized removal or circumvention of any technical device which may have been applied to
protect a computer program.” There are a couple of important distinctions between the anti-
circumvention provisions of the European Software Directive and those of the European
Copyright Directive: