Technological Protection Measures in the United States, the European Union and Germany - How much Fair Use do we need in the "Digital World"?


Wencke Baesler


This article analyzes the different approaches of the United States and the European Union in the EU Copyright Directive towards the protection of technological protection measures against circumvention. The European and German laws have a radically different approach to fair use that heretofore has not been satisfactorily examined. It is a basic principle of copyright law in the European countries not to provide for a broad fair use exception, but to enumerate specific uses that are excluded from the copyright owner’s right to intervene. However, mostly payment of a reasonable compensation is required. This system is preserved in the recently passed German law and used to create a revolutionary right for some beneficiaries of exceptions and limitations: these beneficiaries can claim the means for circumventing copy control technology from the copyright owner.

The new provisions are not flawless. In the article, I recommend several substantive modifications and question the effectiveness of the enforcement provisions. The article will be informative for both a US audience and a European audience since the increasing internationality of Intellectual Property Law requires everyone practicing in the field to understand the differences between US and European Copyright Law.


Computer Law | Intellectual Property Law | Science and Technology Law

Date of this Version

August 2003