[FYI] DCMA auf Europaeisch buchstabiert

["Axel H Horns" <horns@ipjur.com>]

http://register.consilium.eu.int/pdf/en/00/st09/09512en0.pdf

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(47) Technological development will allow rightholders to make use of 
technological measures designed to prevent or restrict acts not 
authorised by the rightholders of any copyright, rights related to 
copyright or the sui generis right in databases. The danger, however, 
exists that illegal activities might be carried out in order to 
enable or facilitate the circumvention of the technical protection 
provided by these measures. In order to avoid fragmented legal 
approaches that could potentially hinder the functioning of the 
internal market, there is a need to provide for harmonised legal 
protection against circumvention of effective technological measures 
and against provision of devices and products or services to this 
effect.   

(48) Such legal protection should be provided in respect of 
technological measures that effectively restrict acts not authorised 
by the rightholders of any copyright, rights related to copyright or 
the sui generis right in databases without, however, preventing the 
normal operation of electronic equipment and its technological 
development. Such legal protection implies no obligation to design 
devices, products, components or services to correspond to 
technological measures, so long as such device, product, component or 
service does not otherwise fall under the prohibition of Article 6. 
Such legal protection should respect proportionality and should not 
prohibit those devices or activities which have a commercially 
significant purpose or use other than to circumvent the technical 
protection. In particular, this protection should not hinder research 
into cryptography.     

(49) The legal protection of technological measures is without 
prejudice to the application of any national provisions which may 
prohibit the private possession of devices, products or components 
for the circumvention of technological measures.    

(50) Such a harmonised legal protection does not affect the specific 
provisions on protection provided for by Directive 91/250/EEC. 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. It should neither inhibit 
nor prevent the development or use of any means of circumventing a 
technological measure that is necessary to enable acts to be 
undertaken in accordance with the terms of Article 5(3) or Article 6 
of Directive 91/250/EEC. Articles 5 and 6 of that Directive 
exclusively determine exceptions to the exclusive rights applicable 
to computer programs.    

(51) The legal protection of technological measures applies without 
prejudice to public policy, as reflected in Article 5, or public 
security. Member States should promote voluntary measures taken by 
rightholders, including the conclusion and implementation of 
agreements between rightholders and other parties concerned, to 
accommodate achieving the objectives of certain exceptions or 
limitations provided for in national law in accordance with this 
Directive. In the absence of such voluntary measures or agreements 
within a reasonable period of time, Member States should take 
appropriate measures to ensure that rightholders provide 
beneficiaries of such exceptions or limitations with appropriate 
means of benefiting from them, by modifying an implemented 
technological measure or by other means. However, in order to prevent 
abuse of such measures taken by rightholders, including within the 
framework of agreements, or taken by a Member State, any 
technological measures applied in implementation of such measures 
should enjoy legal protection.    

(52) When implementing an exception or limitation for private copying 
in accordance with Article 5(2)(b), Member States should likewise 
promote the use of voluntary measures to accommodate achieving the 
objectives of such exception or limitation. If, within a reasonable 
period of time, no such voluntary measures to make reproduction for 
private use possible have been taken, Member States may take measures 
to enable beneficiaries of the exception or limitation concerned to 
benefit from it. Voluntary measures taken by rightholders, including 
agreements between rightholders and other parties concerned, as well 
as measures taken by Member States, do not prevent rightholders from 
using technological measures which are consistent with the exceptions 
or limitations on private copying in national law in accordance with 
Article 5(2)(b), taking account of the condition of fair compensation 
under that provision and the possible differentiation between various 
conditions of use in accordance with Article 5(5), such as 
controlling the number of reproductions. In order to prevent abuse of 
such measures, any technological measures applied in their 
implementation should enjoy legal protection.   

(53) Important progress has been made in the international 
standardisation of technical systems of identification of works and 
protected subject-matter in digital format. In an increasingly 
networked environment, differences between technological measures 
could lead to an incompatibility of systems within the Community. 
Compatibility and interoperability of the different systems should be 
encouraged. It would be highly desirable to encourage the development 
of global systems.   

(54) Technological development will facilitate the distribution of 
works, notably on networks, and this will entail the need for 
rightholders to identify better the work or other subject-matter, the 
author or any other rightholder, and to provide information about the 
terms and conditions of use of the work or other subject-matter in 
order to render easier the management of rights attached to them. 
Rightholders should be encouraged to use markings indicating, in 
addition to the information referred to above, inter alia their 
authorisation when putting works or other subject-matter on networks. 

(55) There is, however, the danger that illegal activities might be 
carried out in order to remove or alter the electronic copyright-
management information attached to it, or otherwise to distribute, 
import for distribution, broadcast, communicate to the public or make 
available to the public works or other protected subject-matter from 
which such information has been removed without authority. In order 
to avoid fragmented legal approaches that could potentially hinder 
the functioning of the internal market, there is a need to provide 
for harmonised legal protection against any of these activities.   

(56) Any such rights-management information systems referred to above 
may, depending on their design, at the same time process personal 
data about the consumption patterns of protected subject-matter by 
individuals and allow for tracing of on-line behaviour. These 
technical means, in their technical functions, should incorporate 
privacy safeguards in accordance with Directive 95/46/EC of the 
European Parliament and of the Council of 24 October 1995 on the 
protection of individuals with regard to the processing of personal 
data and the free movement of such data 1 .   

(57) Member States should provide for effective sanctions and 
remedies for infringements of rights and obligations as set out in 
this Directive. They should take all the measures necessary to ensure 
that those sanctions and remedies are applied. The sanctions thus 
provided for should be effective, proportionate and dissuasive and 
should include the possibility of seeking damages and/or injunctive 
relief and, where appropriate, of applying for seizure of infringing 
material.   

[...]   

CHAPTER III  

Protection of technological measures and rights-management 
information  

Article 6  

Obligations as to technological measures  

1. Member States shall provide adequate legal protection against the 
circumvention of any effective technological measures, which the 
person concerned carries out in the knowledge, or with reasonable 
grounds to know, that he or she is pursuing that objective.  

2. Member States shall provide adequate legal protection against the 
manufacture, import, distribution, sale, rental, advertisement for 
sale or rental, or possession for commercial purposes of devices, 
products or components or the provision of services which:  

(a) are promoted, advertised or marketed for the purpose of 
circumvention of, or  

(b) have only a limited commercially significant purpose or use other 
than to circumvent, or  

(c) are primarily designed, produced, adapted or performed for the 
purpose of enabling or facilitating the circumvention of, any 
effective technological measures.  

3. For the purposes of this Directive, the expression "technological 
measures" means 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 
authorised 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. 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.  

4. Notwithstanding the legal protection provided for in paragraph 1, 
in the absence of voluntary measures taken by rightholders, including 
agreements between rightholders and other parties concerned, Member 
States shall take appropriate measures to ensure that rightholders 
make available to the beneficiary of an exception or limitation 
provided for in national law in accordance with Article 5(2)(a), 
(2)(c), (2)(d), (2)(e), (3)(a), (3)(b) or (3)(e) the means of 
benefiting from that exception or limitation, to the extent necessary 
to benefit from that exception or limitation and where that 
beneficiary has legal access to the protected work or subject-matter 
concerned.  

A Member State may also take such measures in respect of a 
beneficiary of an exception or limitation provided for in accordance 
with Article 5(2)(b), 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.  

The technological measures applied voluntarily by rightholders, 
including those applied in implementation of voluntary agreements, 
and technological measures applied in implementation of the measures 
taken by Member States, shall enjoy the legal protection provided for 
in paragraph 1. The provisions of the first and second subparagraphs 
shall 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. When this Article is applied in the context of 
Directives 92/100/EEC and 96/9/EC, this paragraph shall apply mutatis 
mutandis.  

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