The European Parliament yesterday voted in favour of 9 out of 46
proposed amendments to a new copyright Directive that will close a
loophole in European law through which Napster-type services could
fall. The amendments stopped short of some of the demands made by
numerous lobbyists.
Commissioner Frits Bolkestein said:
"The Parliament has been subjected to
unprecedented lobbying onslaught on this Directive, and I regret
that some of the parties concerned strived to obtain nothing less
than total victory, using sometimes highly emotive arguments,
rather than seeking a balanced compromise between the various
legitimate interests involved. That is not the European way to move
forward.”
He added that “the rapid implementation of this Directive will
facilitate the development of electronic commerce and so increase
the competitiveness of the European economy."
The new law covers the rights of reproduction, communication to
the public, distribution, the legal protection of anti-copying
devices and rights management systems.
Anti-Napster
The Directive provides, among other matters, that consumers will
be allowed to reproduce material they already own but will be
prevented from distributing unlimited numbers of copies or selling
them.
In practical terms, this probably means that a computer user
could take his or her music CD and convert a song to MP3 format
then e-mail the MP3 file to a friend; but he or she would not be
entitled to distribute that file on a service such as Napster that
gives access to an unlimited number of music fans.
The vote by the Parliament comes just 48 hours after a decision
by a US appeals court to uphold an injunction against Napster,
subject to minor amendments to its terms, pending a full hearing
later this year on the merits of the case.
Consumer rights groups have supported the move in Europe
although there were complaints from some in the recording industry
who said that the rules do not go far enough to protect it in its
battle against digital piracy.
Encryption
The directive will allow copyright owners to use “technical
protection measures,” such as encryption, to prevent people making
unauthorised copies of music and film. Circumventing such measures
would become, in most cases, illegal.
Copyright tax
Among the amendments rejected yesterday by the Parliament was a
proposal that Member States should consult with the European
Commission before introducing domestic levies on blank CDs or
similar copying media or other changes in their domestic laws to
copyright protection.
Both France and Germany recently introduced such copyright taxes
on makers of high-tech equipment such as scanners and computers, an
extension of existing rules in these countries which put a levy on
the makers of photocopiers and blank cassettes.
According to Italian MEP Enrico Boselli, the Directive will
render such taxes illegal, but not until technical protection
measures become widely available. Until that time, Member States
can impose such copyright taxes as they see fit.
Putting the Directive into force
The new Directive awaits ministerial approval over the next few
weeks, although no significant changes are anticipated. It should
then be implemented in the laws of the EU’s 15 Member States within
18 months’ time.
The Directive is in part an attempt by Europe to catch-up and
overtake US legal protections for copyright holders. For the past
two years, the US has had the Digital Millennium Copyright Act
which, among other matters, protects ISPs in relation to actions by
their users.
Labour MEP Arlene McCarthy is reported by FT.com as saying,
“We’ve voted to neither legalise electronic theft nor to
criminalise consumers, and no major amendments to UK copyright law
will now be needed.”
Detail of provisions in the Directive
Technical copies on the net
The Directive provides rights to service providers, telecoms
operators and certain others in limited circumstances for
particular acts of reproduction which are considered technical
copies.
There are many conditions to be fulfilled before the exemption
applies. In particular, those acts of reproduction have to form an
essential part of a technological process and take place in the
context of a transmission in a network. The Directive aims to
ensure therefore that there will be effective operation of the
internet for those who place copyright material on the net and
those who transmit or carry such material.
Exhaustive list of optional exceptions
There is a list of exceptions to the reproduction right and
right of communication to the public. All are optional and
therefore Member States may choose to apply any or all of these
exceptions. However, the list is exhaustive which means that no
other exception may be applied. This proved controversial.
Therefore, a "grandfather clause" has been included which allows
Member States to continue to apply existing exceptions in minor
cases for analogue (not digital use) only.
Fair compensation
This was originally suggested by the European Parliament in
relation to certain exceptions and taken on board by the Commission
in its amended proposal. It applies to two of the exceptions,
namely reprography (photocopying) and private copying. However,
Member States are given flexibility in how to interpret this. In
particular, in certain minor cases, there may be no obligation for
payment.
The precise form of such compensation (which may, but does not
have to, take the form of levies on copy shops, sales of blank
tapes and equipment, as exists in many Member States) would be up
to the Member States to decide in accordance with their own legal
traditions and practices.
Member States would also have some flexibility concerning how
they treat the question of fair compensation for time shifting i.e.
private copies made off the air from radio or television for the
purpose of viewing or listening to the broadcast at a later more
convenient time.
The relationship between the legal protection of anti-copying
devices (technological measures) and the exceptions
This has been amongst the most political and controversial
topics of the whole debate. The problem has been how to ensure that
an exception e.g. an act of reproduction or copying for
illustration for teaching can be made use of where a
copyrightholder also has in place an anti-copying device e.g. a
digital tracker designed to spot pirate copies.
Failure to address this would have meant that the exceptions
could have been meaningless in some cases. Here too there has been
a compromise. Firstly, rightholders have complete control over the
manufacture, distribution etc. of devices designed to circumvent
anti-copying devices. A more flexible solution in this regard would
have carried a greater risk of abuse and piracy.
Secondly, the Directive provides that rightholders either
voluntarily or by way of agreements with other parties have to
provide those who would benefit from an exception e.g. schools,
libraries in the case of teaching, with the means to do so. It will
be up to Member States to ensure that such means exist.
However, as far as private copying is concerned, the quality and
quantity of private copying and the growth of electronic commerce
all mean that there should be greater protection for rightholders
in digital recording media (whereby unlimited numbers of perfect
copies may be made rapidly). In certain limited cases, where
rightholders have made the means available, private copying may be
carried out.
Community exhaustion
The Directive applies Community exhaustion and not international
exhaustion for the distribution right. This is in line with
previous Directives in the field of copyright. Therefore, once a
copyright protected product such as a CD or CD-ROM is marketed in
the Community by or with the consent of the rightholder, the
distribution right is said to be "exhausted" i.e. there is no right
to restrict further distribution in the Community. Parallel imports
throughout the Community will therefore be permitted but the
rightholder will retain protection against parallel imports from
third countries.
Relationship with the E-Commerce Directive
This Directive deals with aspects of copyright law whilst the
E-Commerce Directive harmonises various legal issues relating to
the functioning of the internal market. This Directive supplements
the liability provisions of the E-Commerce Directive by confirming
that injunctive relief i.e. the ability to stop infringing activity
by court or other action must also be available to rightholders
against intermediaries when their services are used by third
parties to infringe copyright or related rights.
