and which have no independent economic significance.” This provision is very similar to the
new clause (b) that would have been added to Section 117 of the U.S. copyright statute under S.
1146 and H.R. 3048 (discussed in Section II.A.5(a)(2) above). The Article 5(1) exception would
appear to cover the store and forward procedure adopted by routers and the RAM copy produced
as a result of browsing at least by a private user (whether browsing for a commercial purpose
would have “independent economic significance” is unclear).^289 The exception does not apply to
computer programs or databases because they are separately regulated in other Directives.^290
Thus, the European Copyright Directive adopts an approach that affords the reproduction
right a very broad inherent scope, but provides an explicit and automatic exemption for copies
that are made incidental to the use^291 of a work through a technological process, such as
transmission through a network or loading into memory for viewing or playing of the work.
Indeed, Recital (33) of the European Copyright Directive notes that the exception of Article 5(1)
“should include acts which enable browsing as well as acts of caching to take place, including
those which enable transmission systems to function efficiently, provided that the intermediary
does not modify the information and does not interfere with the lawful use of technology, widely
recognized and used by industry, to obtain data on the use of the information.”
According to Recital (32) of the European Copyright Directive, the final Directive, unlike
its predecessor drafts, opted for an approach of listing “an exhaustive enumeration of exceptions
and limitations to the reproduction right and the right of communication to the public.” These
exceptions and limitations are enumerated in Articles 5(2) and 5(3). The exceptions and
limitations in Article 5(2) apply only to the reproduction right, whereas the exceptions and
limitations in Article 5(3) apply to both the reproduction right and the right of communication to
the public.
Under Article 5(2), member states may provide for exceptions or limitations to the
reproduction right in the following cases:
(a) in respect of reproductions on paper or any similar medium, effected by the
use of any kind of photographic techniques or by some other process having
similar effects, with the exception of sheet music, provided that the rightholders
receive fair compensation;(b) in respect of reproductions on any medium made by a natural person for
private use and for ends that are neither directly or indirectly commercial, on
condition that the rightholders receive fair compensation which takes account of(^289) Justin Harrington & Tina Berking, “Some Controversial Aspects of the EU Copyright Directive (Directive
2001/29/EC),” Cyberspace Lawyer, Jan. 2003, at 2, 3-4. The Electronic Commerce Directive contains
exemptions in respect of hosting, caching and acting as a mere conduit. Id. at 4.
(^290) David Schollenberger, “Entertainment Without Borders” (Mar. 2003), at 9 (seminar paper on file with the
author).
(^291) An earlier version of Art. 5(1) provided that the use of the work must be “authorized or otherwise permitted by
law.” A copy of an earlier version of the European Copyright Directive and comments may be found at
http://www.bna.com/e-law/docs/ecdraft.html (last modified Dec. 2, 1997).