EU Directive on Copyright
On 9 April, 21 months after the first reading and three years since the European Commission produced its first proposal, the EU's Council of Ministers finally adopted the EU Directive on Copyright and Related Rights in the Information Society. One of the most lobbied pieces of European legislation, it affects the interests of the European content industries as well as the daily lives of almost all citizens. In line with the E-Commerce Directive that complements the Copyright Directive the time given to member states to implement the directive into their national legislation has been reduced from 24 to 18 months. With the adoption of the directive, EU member states will accede to the WIPO (World Intellectual Property Organization) Copyright Treaty (1996) and so will extend protection for European authors, artists and creators in a global market.
Yet the aim to harmonize copyright law in Europe was not achieved. Articles 2 and 3 give rightsholders exclusive rights over copying and communicating their works to the public. Article 5 lists the exceptions or limitations to this exclusive right. There are 21 listed exceptions to Articles 2 and 3, but only one of these is obligatory - the controversial issue of technical copies on the net. Internet service providers and telecommunications operators - if they fulfill the required conditions - can transmit such temporary copies without the permission of the rightsholder. Which of the 20 other exceptions EU member states wish to take into their national legislation is up to them to decide. They can choose from, but not add to the list. So libraries, users and consumers may end up with different rights in different countries. For example, a library in one EU state may be able to digitize print material already in its collection while its European colleagues may not; or a song copied legally on to a portable CD player for private listening in one state may be illegal in another.
Private users and consumers will also have fewer rights, as Parliament restricted the right to make copies for private use. Private copies may now only be made 'by a natural person' rather than by an institution on their behalf and on the condition that the rightholders receive fair compensation. One of the forms this fair compensation may take is a levy on copying equipment, such as tapes, disks or photocopiers. "We do not think this is very satisfactory as it amounts to a tax on copying." says Sandy Norman, copyright consultant of The Library Association. Another option would be to impose licensing schemes, which are likely to work site specific but not for those copying for private purposes. Yet member states are given the flexibility in how to interpret the fair compensation provision and in certain minor cases, there may be no obligation for payment.
Moreover the directive harmonizes the legal protection of rights management systems and anti-copying devices. This gives industry the right to control copying in the online environment by using technical blocks and also complete control over the manufacture, distribution etc. of devices designed to circumvent anti-copying devices. According to the directive, industry should - either voluntarily or by way of agreements with other parties - provide those who would benefit from a particular exception e.g. libraries, schools in the case of teaching, with the means to do so. Yet this exception remains voluntary for member states, and especially for private copying, member states are not obliged to intervene in the case industry does not provide consumers with the means to make copies for private and non-commercial uses. "Those provisions give to industry a 'black-check' for considering whether consumers will benefit from their rights or not." says Victoria Villamar, legal officer of The European Consumers' Organisation. Finally it can be said that the new directive has neither achieved the goal of harmonizing the different national legislations nor created a balance between the economic interests of the content industry and the interest of the users, but led consumers in a worse position vis-à-vis their legitimate right to make copies for private and non-commercial use.
European Commission, DG Internal Market - Intellectual Property
European Fair Practices in Copyright Campaign
The European Consumers' Organisation
World Intellectual Property Organization (WIPO)