Advanced Copyright Law on the Internet

application of an effective technological measure to protect the work. The import of this
provision appears to have been (i) to clarify that digital uses of a copyrighted work may be a fair
use notwithstanding that the copyright owner has authorized use of the work only in other media
or modes and (ii) that the fair use exemption may apply even if an effective technological
measure must be circumvented to use the work (as in the case of reverse engineering). However,
as discussed above, both the RealNetworks and the Reimerdes cases held that fair use is not a
defense to a claim for violation of the anti-circumvention provisions of Section 1201(a); thus, the
fact that a defendant circumvented a technological protection measure in order to gain access to a
copyrighted work to make fair uses of it does not provide a defense.

(b) The European Copyright Directive

Article 5(3) of the European Copyright Directive permits member states to adopt
limitations to the rights of reproduction and of communication or making available to the public
for the following fair use purposes:

• for illustration for teaching or scientific research for noncommercial purposes, as long
  as the source, including the author’s name, is indicated;


• for the benefit of people with a disability, which are directly related to the disability
  and of a noncommercial nature, to the extent required by the specific disability;


• use of short excerpts in connection with the reporting of current events, so long as the
  source, including the author’s name, is indicated;


• quotations for purposes such as criticism or review of a work that has been lawfully
  made available to the public, so long as the source, including the author’s name, is indicated and
  the use is in accordance with fair practice;


• for public security or proper performance of an administrative or judicial procedure;


• use of political speeches or public lectures to the extent justified by the informatory
  purpose and provided that the source, including the author’s name, is indicated;


• use during public religious or official celebrations;


• use of works of architecture or sculpture made to be located permanently in public
  places;


• incidental inclusion of a work in other material;


• use for advertising the public exhibition or sale of artistic works to the extent necessary
  to promote the event;


• use for caricature, parody or pastiche;


• use in connection with the demonstration or repair of equipment;