The European Union yesterday adopted a new Directive on copyright
and related rights in the Information Society. The Directive closes
a loophole in European laws through which file sharing services
like Napster could slip and bans commercial use of material copied
from the internet. It is due to be implemented in the national laws
of member states within 18 months of the Directive’s official
publication, due in a few weeks.
Internal Market Commissioner Frits Bolkestein commented
that:
"This is a very significant achievement. Not
only is this Directive the most important measure ever to be
adopted by Europe in the copyright field but it brings European
copyright rules into the digital age. Europe's creators, artists
and copyright industries can now look forward with renewed
confidence to the challenges posed by electronic commerce. At the
same time, the Directive secures the legitimate interests of users,
consumers and society at large."
The Directive harmonises the rights of reproduction,
distribution, communication to the public, the legal protection of
anti-copying devices and rights management systems.
Particular novel features of the Directive include a mandatory
exception for technical copies on the net for network operators in
certain circumstances, an exhaustive, optional list of exceptions
to copyright which includes private copying, the introduction of
the concept of fair compensation for right holders and finally a
mechanism to secure the benefit for users for certain exceptions
where anti-copying devices are in place.
Adoption and implementation of the Directive will enable the
Community and its Member states to ratify the 1996 World
Intellectual Property (WIPO)Treaties - the so-called Internet
Treaties. These two treaties, namely the WIPO Copyright Treaty
(WCT) on the protection of authors and the WIPO Phonograms and
Performances Treaty (WPPT) on the protection of performers and
phonogram producers, were adopted by WIPO in December 1996. The
Internet Treaties were ratified by the US in 1998 with its Digital
Millennium Copyright Act.
The details
Technical copies on the net
The Directive provides an obligatory exception for service
providers, telecommunications operators and certain others in
limited circumstances for particular acts of reproduction which are
considered technical copies. A compromise has been taken for what
has been an extremely controversial issue. 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 ensures therefore that
there will be effective operation of the World Wide Web for those
who place copyrighted material on the net and those who transmit or
carry such material.
Exhaustive list of optional exceptions
There is now a detailed exhaustive 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 three of the exceptions,
namely reprography (photocopying), private copying and broadcasts
reproduced for viewing or listening in certain social institutions.
However, Member States are given flexibility in how to interpret
this. In particular, in certain minor cases, there may be no
obligation for payment or further 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 most 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 a degree of flexibility in their
treatment 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.
Legal protection of anti-copying devices and 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 copyright
holder also has in place an anti-copying device, e.g. a digital
tracker designed to prevent piracy. 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, right holders 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 right holders either
voluntarily or by way of agreements with other parties have to
provide those who would benefit from a particular 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 right holders
in digital recording media (whereby unlimited numbers of perfect
copies may be made rapidly). In certain limited cases, where right
holders 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 right holder, 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 right holder will retain protection against parallel imports
from third countries.
Relationship with the E-Commerce Directive
Both the E-Commerce Directive and this Directive are important
elements in meeting the EU objective to create a harmonised legal
framework to encourage the development of the Information Society.
They complement each other, as 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 right holders against intermediaries when
their services are used by third parties to infringe copyright or
related rights.
