CURIA - Documents
aiming to ensure a functioning internal market. Member States should arrive at a coherent application of these
exceptions and limitations, which will be assessed when reviewing implementing legislation in the future.
In certain cases of exceptions or limitations, rightholders should receive fair compensation to compensate them
adequately for the use made of their protected works or other subject-matter. When determining the form, detailed
arrangements and possible level of such fair compensation, account should be taken of the particular circumstances
of each case. When evaluating these circumstances, a valuable criterion would be the possible harm to the
rightholders resulting from the act in question. In cases where rightholders have already received payment in some
other form, for instance as part of a licence fee, no specific or separate payment may be due. The level of fair
compensation should take full account of the degree of use of technological protection measures referred to in this
Directive. In certain situations where the prejudice to the rightholder would be minimal, no obligation for payment
Member States should be allowed to provide for an exception or limitation to the reproduction right for certain
types of reproduction of audio, visual and audio-visual material for private use, accompanied by fair compensation.
This may include the introduction or continuation of remuneration schemes to compensate for the prejudice to
rightholders. Although differences between those remuneration schemes affect the functioning of the internal
market, those differences, with respect to analogue private reproduction, should not have a significant impact on
the development of the information society. Digital private copying is likely to be more widespread and have a
greater economic impact. Due account should therefore be taken of the differences between digital and analogue
private copying and a distinction should be made in certain respects between them.
When applying the exceptions and limitations provided for in this Directive, they should be exercised in
accordance with international obligations. Such exceptions and limitations may not be applied in a way which
prejudices the legitimate interests of the rightholder or which conflicts with the normal exploitation of his work or
other subject-matter. The provision of such exceptions or limitations by Member States should, in particular, duly
reflect the increased economic impact that such exceptions or limitations may have in the context of the new
electronic environment. Therefore, the scope of certain exceptions or limitations may have to be even more limited
when it comes to certain new uses of copyright works and other subject-matter.’
Article 2(a) of Directive 2001/29 provides:
‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or
permanent reproduction by any means and in any form, in whole or in part:
for authors, of their works’.
Article 5(2) and (5) of that directive provides:
Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in
the following cases:
in respect of reproductions on any medium made by a natural person for private use and for ends that are neither
directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account
of the application or non-application of technological measures referred to in Article 6 to the work or subject-matter
The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special
cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably
prejudice the legitimate interests of the rightholder.’
Article 6 of Directive 2001/29 provides:
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.
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 of the European
Parliament and of the Council of 11 March 1996 on the legal protection of databases (OJ 1996 L 77, p. 20)].
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.
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.
Article 1 of Directive 2004/48 defines its subject-matter as follows: