s the protection for technological copyright protection measures) affects any existing exceptions or limitations, including Fair Use. Section 404 of the DMCA also amends the existing exemption for non-profit
libraries and archives in section 108 of the Copyright Act to accommodate digital technologies and evolving preservation practices.
There are also several specific exceptions to the protections for technological protection measures including:
- An ongoing administrative rule-making proceeding (administered by the Librarian of Congress) to evaluate the impact of the new prohibition against the act of circumventing access-control measures; and
- Six specific exceptions for the purposes of: ‘evaluation of material for acquisition by a nonprofit library, archive and educational institutions’, ‘reverse engineering’, ‘encryption research’, ‘protection of minors’, ‘personal privacy’, and ‘security testing’.
However, not all academics and educational institutions are satisfied with all the clauses of the DMCA and debate continues on a number of issues.
The passage of the European Union Copyright Directive (the Directive on the harmonisation of certain aspects of copyright and related rights in the information society) has also been extremely controversial. The Directive contains a number of prescriptive non-mandatory exceptions which national governments may include in their EUCD implementation legislation if they so wish. These include (free or paid for) exceptions relating to: temporary reproductions, the photographic reproduction of copyright material, private use, cultural/educational institution copying, ephemeral recordings for broadcasting purposes, reproductions of broadcasts for ‘social institutions’, illustration for teaching or scientific research, for the benefit of people with a disability, for reporting the news or current affairs, criticism or review, public security, use of political speeches, use during religious celebrations, for public art or architecture, for the incidental inclusion of a work in other material and for several other, essentially minor, purposes.
The EU copyright directive is an example of the growing trend by certain rights owners to try to erode traditionally recognized exceptions. Librarians had to lobby hard to prevent the narrowing of fair practices, especially library copying. To compensate for the potential loss to rights owners from certain exceptions, Member States are permitted to levy a payment, despite the fact that all the optional exceptions are subject explicitly to the Berne three step test. Librarians say that if an exception is allowed, a decision has been made that there is no harm to rights owners, in which case there is no need to compensate for loss.
Other countries such as Australia have also updated their copyright regimes to accommodate new digital technologies and included numerous extensions of exceptions to the digital environment. The Australian Copyright Amendment (Digital Agenda) Act 2000 provides for a broad range of digital copyright exceptions including for the purposes of research and study, criticism and review, reporting the news, library and archive communication of materials in their collection, library and archive preservation of material in their collection, temporary reproductions and educational copying among others. This Act also includes permitted purposes in support of which a ‘qualified person’ may lawfully manufacture, import or supply circumvention devices. These permitted purposes are: library/archive reproduction and communication, reverse engineering of computer programs, educational copying, Parliamentary copying and Government copying.
Using copyright legislation to restrict usage has serious implications for education, especially in developing countries, where often photocopies or digital copies are the only source of information available. To give an example, in recent years the South African Government published proposed amendments to the Copyright Act and its Regulations which would have eroded fair use and virtually removed all exc