therein to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.”
Furthermore, the Agreed Statement to Article 10 clarifies this and allows scope for signatory nations to extend exceptions in the digital environment:
“Concerning Article 10
It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws, which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment.
It is also understood that Article 10(2) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention.”
Implementation of the WIPO treaties
A number of developed nations have updated or begun updating their copyright laws in accordance with the WIPO treaties. The U.S., Australia and the European Union have enacted WCT-consistent legislation. By early 2003 all EU member states should have implemented the new copyright directive. Other nations such as Canada, New Zealand and South Africa are in the process of updating their copyright legislation. The way in which these treaties are implemented will, in large measure, determine the future of the balance that has been so important to the copyright system and to information users in the past.
The most well known and controversial implementation of the WIPO Treaties is the U.S. Digital Millennium Copyright Act. As well as updating the U.S. Copyright Act
to add legal protection for technological copyright protection measures (which will be discussed below) the DMCA updates copyright exceptions for the digital environment.
Section 1201 of the DMCA contains a ‘savings’ clause, which states that no new protection for copyright holders (such as 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 