to the extent that they restrict acts that are not authorised by the authors or permitted by law. Must one infer from this that the European legislator did not intend to allow the circumvention of a TPM solely for the purpose of exercising a limitation on copyright?[1]
Be that as it may, there is broad consensus that the use of TPMs should take account of the users’ interest in exercising certain limitations on copyright and related rights. Accordingly, article 6(4) of the Directive prescribes affirmative action by the rights owners, including by means of agreements between them and other parties concerned, or in its absence, by the Member States. This is to ensure that users benefit from certain limitations with respect to works protected by TPMs to the extent necessary to benefit from these limitations and where that beneficiaries have legal access to the protected work concerned. This provision is extremely complex, vague and prone to differing interpretations. As a result, lawmakers in the 27 Member States have once again used their imagination to interpret the provision and come up with their own solutions, which they hope meet the requirements of article 6(4) of the Directive.
Not all limitations appearing in the list of article 5 of the Directive are covered by this measure, but only a selection of the limitations included in articles 5(2) and 5(3) are subjected to the obligation of the rights holder to provide users with the means to exercise them.[2] Among these limitations are acts of reproduction by publicly accessible libraries, educational establishments or museums, or by archives (article 5(2) c)) as well as use for the sole purpose of illustration for teaching or scientific research (article 5(3)a)). Rights holders and Member States alike are obliged to provide the means to exercise these—otherwise optional—limitations on copyright and related rights only insofar as these have indeed been transposed in the national order. The list of limitations that are subject to the obligation therefore risks being even shorter in reality since, for example, the limitation on reproductions of broadcasts made by social institutions pursuing non-commercial purposes has not been implemented in a number of countries.
However, according to the fourth paragraph of article 6(4) of the Directive, “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
