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How Does the European Union Treat Copyrights in the Information Society?

By IBLS Editor

It is well known that the most of the European Union ("EU)" states are members of the World Intellectual Property Organization ("WIPO") and signatories of WIPO Copyright treaties.  Hence, as an economic block with free transfer of people, goods, and services, the EU required uniform rules  on copyrights in the information society ("IS') beyond those rules imposed by international law.  Having homogeneous regulations on the treatment of copyrights in the IS facilitates interstate- member information technology transactions, fosters development of the IS in Europe, and easies and confers certainty to resolution of feasible intellectual property conflicts.  For these basic reasons and many other complex reasons, the European Parliament and Council introduced Directive 2001/29/EC.  As the same Directive states, "A rigorous, effective system for the protection of copyright and related rights is one of the main ways of ensuring that European cultural creativity and production receive the necessary resources and of safeguarding the independence and dignity of artistic creators and performers."  This article briefs some of the most relevant provisions of the European Parliament and Council Directive 2001/29/EC. 

The EU is a political and economic union of 27 Member States and a population of about 500 million citizens.  It is estimated that the EU generates an estimated 31% of the world"s GDP.  It is definitely exemplary how the pioneers of this common market could unite 500 million citizens with 23 different languages and 13 types of currency.  Easier said than done, the world now has a unified and promising market for the Information Society and authors/inventors.  Directive 2001/29/EC then unified the copyrights and related rights of authors/inventors among the Member States.

European Parliament and Council Directive 2001/29/EC did not modify the existing community rules regarding the legal protection of computer programs, rental and lending rights in the field of intellectual property ("IP"), copyrights on broadcasting programs by satellite and cable retransmissions, and the legal protection of databases.  This means, any existing community legislation on copyrights for the above topics, enacted before 2001, is still controlling and no affected by this Directive. 

Copyright holders have the same reproduction rights in the IS. According to Directive 2001/29/EC, Member States shall provide for the right to reproduce, ban reproduction, temporary or permanent, by any means and in any form for the authors' works, performers' performances, phonograms producers' phonograms, film producers' films, including original and copies of the films, and broadcasting organizations' broadcasts (whether transmitted by wire or air), including cable and satellite.  For practical purposes, this Directive's rule on reproduction is only reiterating authors/inventors' right to reproduce or ban reproduction of their works in the IS industry.  International and Member States' domestic rules defining those rights, works, and establishment of rights continue to be applicable. 

Likewise, traditional exceptions to the right of reproduction in other forums where transferred to the IS arena.  For instance, temporary and incidental reproductions of copyrighted works for 'lawful use' and with no economic significance are exempted from the reproduction right. Similarly, temporary and incidental reproductions, essential part of a technological process, made with the sole purpose of enabling transmission in a network between third parties by an intermediary, with no economic purpose or significance shall be exempted from the reproduction right.   These two are extremely relevant exemptions for the IS because it is precisely in this forum where temporal and lawful reproductions can be made for legitimate purposes like those informative and educational.     

Most of the common copyright exemptions and limitations were transferred to the IS sector. This Directive also provided other exceptions or limitations to the reproduction right in the IS; most of them are familiar copyright exceptions.  For example, Member States may limit reproduction rights when the reproduction is made by publicly accessible libraries, educational establishments, and museums, without any direct or indirect economic advantage; reproductions made by social institutions (hospitals, prisons, government offices) with no commercial purpose; documentary reproductions of ephemeral recordings of works, by broadcasting organizations, and for their own facilities and broadcasts; reproductions made by private persons for their own non-commercial use; among others.

Additionally, this Directive provided the Member States with the right to exempt or limit the use of copyrighted materials in certain cases; most of them similar to those commonly seen in other IP regulations.  Member States may limit reproduction rights for non-commercial teaching, scientific, and research uses and previous copyright acknowledgments; uses for the benefit of people with disability; uses by the press for informatory purposes and with respective acknowledgments; uses for the purpose of criticism or review according with fair practice policies; uses for the purpose of public security; uses for political speeches and informative purposes; uses for religious celebrations; uses for the purpose of caricature, parody or pastiche; etc.   

EU authors enjoy the same distribution rights in the IS.  This Directive requires the Members States to provide the adequate mechanisms for copyright holders to exercise their right to authorize or prohibit any form of distribution of their work to the public.  An important provision for the right of distribution in the IS was established by this EU Directive.  Distribution rights over the work original or its copies can only be claimed by third parties when the right-holder, or another person with his consent, was the one that made the first sale or transferred ownership in the Community.     

One of the most important rules established by Directive 2001/29/EC is the obligation of the Member States to domestically provide legal protection against the circumvention of technological measures to infringe on copyrights.  Additionally, this Directive requires that Member States provide legal protection against the manufacture, import, distribution, sale, rental, possession, and advertisement for sale or rental of products or components of products used to circumvent copyrights or those used to facilitate the circumvention of copyrights.  This rule implies great changes for the domestic legislation of the Member States.  Member States had to modify, update, change or amend their legislation to penalize those possessing, importing, or dealing with products suitable to circumvent on technological measures protecting copyrights.

Furthermore, this Directive requires the Members States to provide appropriate sanctions and remedies in respect of infringement of the rights established by this Directive. 

Member States are obliged to provide legal remedies for right-holders whose copyrights have been infringed in the territory of a Member State.  Legal actions for damages and injunctions, seizure of infringing material and devices used to circumvent technological means of protection, should be made available for right-holders.       

As said before, the anti-circumvention rules of this Directive was one of the most important but controversial rules set by this Directive.  Indeed, the copyright related rights are almost identical to those established by WIPO rules. Yet, the obligation of anti-circumvention measures was the innovative topic in this Directive. Critics considered that this Directive favors the interests of the copyright-owning (software producers, publishing companies, film producers, etc) rather than the interests of the copyright users.  This affirmation is based on the Directive's omission of many other relevant rules regarding ant-circumvention measures.

December 2002 was the final date for implementation of this Directive.    Seven countries did not comply with this date, Spain, Finland, French Republic, UK and Ireland, Sweden, Belgium, and Czech Republic.  Currently, only two countries are still in the process of implementing this Directive, Spain and Czech Republic. 

Full post as published by IBLS Internet Law Blog on February 19, 2008 (boomark / email).