Copyright and Information Society Directive

Last updated

Directive 2001/29/EC
European Union directive
Flag of Europe.svg
TitleDirective on the harmonisation of certain aspects of copyright and related rights in the information society
Made by European Parliament & Council
Made underArts. 42, 55 & 95[ clarification needed ]
Journal referenceL167, 2001-06-22, p. 10
L6, 2002-01-10, p. 70
History
Date made2001-05-22; updated: 2019-03-28
Came into force2001-06-22
Implementation date2002-12-22
Preparative texts
Commission proposalC108, 1998-04-07, p. 6
C180, 1999-06-25, p. 6
EESC opinionC407, 1998-12-28, p. 30
EP opinionC150, 1999-05-28, p. 171
Other legislation
Amends 92/100/EEC, 93/98/EEC
Amended by Directive on Copyright in the Digital Single Market
Current legislation

The Copyright and Information Society Directive 2001 (2001/29) is a directive in European Union law that was enacted to implement the WIPO Copyright Treaty and to harmonise aspects of copyright law across Europe, such as copyright exceptions. [1] The directive was first enacted in 2001 under the internal market provisions of the Treaty of Rome.

Contents

The draft directive was subject to unprecedented lobbying [2] and was considered a success for Europe's copyright laws. [3] The 2001 directive gave EU Member States significant freedom in certain aspects of transposition. Member States had until 22 December 2002 to transpose the directive into their national laws, although only Greece and Denmark met the deadline.

Provisions

Rights

Articles 2–4 contain definitions of the exclusive rights granted to under copyright and related rights. They distinguish the "reproduction right" (Article 2) from the right of "communication to the public" or "making available to the public" (Article 3): the latter is specifically intended to cover publication and transmission on the internet. The two names for the right derive from the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (Arts. 8 & 10 respectively). The related right for authors to authorise or prohibit any form of distribution to the public by sale or otherwise is provided for in Article 4 (exhaustion rights).

Exceptions and limitations

Article 5 lists the copyright exceptions which Member States may apply to copyright and related rights. The restrictive nature of the list was one source of controversy over the directive: in principle, Member States may only apply exceptions which are on the agreed list, although other exceptions which were already in national laws on 2001-06-22 may remain in force [Article 5(3)(o)]. The Copyright Directive makes only one exception obligatory: transient or incidental copying as part of a network transmission or legal use. Hence internet service providers are not liable for the data they transmit, even if it infringes copyright. The other limitations are optional, with Member States choosing which they give effect to in national laws.

Article 5(2) allows Member States to establish copyright exceptions to the Article 2 reproduction right in cases of:

Article 5(3) allows Member States to establish copyright exceptions to the Article 2 reproduction right and the Article 3 right of communication to the public in cases of:

According to Article 5(5) copyright exceptions may only be "applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder", therefore the directive confirms the Berne three-step test.

Technological protection measures

Article 6 of the Copyright Directive requires that Member States must provide "adequate legal protection" against the intentional circumvention of "effective technological measures" designed to prevent or restrict acts of copying not authorised by the rightholders of any copyright, related right or the sui generis right in databases (preamble paragraph 47). Member States must also provide "adequate legal protection" against the manufacture, import, distribution, sale, rental, advertisement, or possession "for commercial purposes of devices, products or components or the provision of services which":

In the absence of rightsholders taking voluntary measures the Directive provides that Member States must ensure that technological measures do not prevent uses permitted under Article 5 on copyright exceptions, see Article 6(4). Article 7 requires that Member States must provide "adequate legal protection" against the removal of rights management information metadata.

Unlike Section 1201 of the Digital Millennium Copyright Act, which only prohibits circumvention of access control measures, the Copyright Directive also prohibits circumvention of copy protection measures, making it potentially more restrictive. In both the DMCA and the Copyright Directive, production, distribution etc. of equipment used to circumvent both access and copy-protection is prohibited. Under the DMCA, potential users who want to avail themselves of an alleged fair use privilege to crack copy protection (which is not prohibited) would have to do it themselves since no equipment would lawfully be marketed for that purpose. Under the Copyright Directive, this possibility would not be available since circumvention of copy protection is illegal. [4]

Implementation by member states

Member States had until 22 December 2002 to implement the Copyright Directive into their national laws. However, only Greece and Denmark met the deadline, while Italy, Austria, Germany and the UK implemented the directive in 2003. The remaining eight Member States (Belgium, Spain, France, Luxembourg, The Netherlands, Portugal, Finland and Sweden) were referred to the European Court of Justice for non-implementation. In 2004 Finland, the UK (with regards to Gibraltar), Belgium and Sweden were held responsible for non-implementation. [5]

National implementation measures include:

2019 revision and expansion

In 2016, leaked documents revealed that two new provisions were under consideration. The first, aimed at social media companies, sought to make automated screening for copyrighted content mandatory for all cases in which a user can upload data. [7] The second proposed that news publishers should benefit financially when links to their articles are posted on a commercial platform. [8] Responding to criticism, Axel Voss admitted that the law was "maybe not the best idea" but went on to support its passage and draft some of the language being used to amend Article 11. [9]

The update has been widely derided as a link tax. Its critics include German former MEP Felix Reda, Internet company Mozilla and copyright reform activists associated with the Creative Commons. [10] [11] Some discussion has concerned the inability for news agencies to opt out of the payment system and the claim that ancillary rights for news snippets contradicts the Berne convention. [12]

See also

Notes

    Related Research Articles

    A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educational, or musical form. Copyright is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself. A copyright is subject to limitations based on public interest considerations, such as the fair use doctrine in the United States.

    <span class="mw-page-title-main">WIPO Copyright Treaty</span>

    The World Intellectual Property Organization Copyright Treaty is an international treaty on copyright law adopted by the member states of the World Intellectual Property Organization (WIPO) in 1996. It provides additional protections for copyright to respond to advances in information technology since the formation of previous copyright treaties before it. As of August 2021, the treaty has 110 contracting parties. The WCT and WIPO Performances and Phonograms Treaty, are together termed WIPO "internet treaties".

    The Berne three-step test is a clause that is included in several international treaties on intellectual property. Signatories of those treaties agree to standardize possible limitations and exceptions to exclusive rights under their respective national copyright laws.

    The copyright law of the European Union is the copyright law applicable within the European Union. Copyright law is largely harmonized in the Union, although country to country differences exist. The body of law was implemented in the EU through a number of directives, which the member states need to enact into their national law. The main copyright directives are the Copyright Term Directive, the Information Society Directive and the Directive on Copyright in the Digital Single Market. Copyright in the Union is furthermore dependent on international conventions to which the European Union or their member states are part of, such as TRIPS Agreement or the Berne Convention.

    Ripping is extracting all or parts of digital content from a container. Originally, it meant to rip music out of Commodore 64 games. Later, the term was used to extract WAV or MP3 format files from digital audio CDs, but got applied as well to extract the contents of any media, including DVD and Blu-ray discs, and video game sprites.

    Anti-circumvention refers to laws which prohibit the circumvention of technological barriers for using a digital good in certain ways which the rightsholders do not wish to allow. The requirement for anti-circumvention laws was globalized in 1996 with the creation of the World Intellectual Property Organization's Copyright Treaty.

    The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations also known as the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations and the Rome Convention, 496 U.N.T.S 43, was accepted by members of the United International Bureaux for the Protection of Intellectual Property (BIRPI), the predecessor to the modern World Intellectual Property Organization, on 26 October 1961. The Diplomatic Conference was jointly convened by BIRPI, the International Labour Organisation, and the United Nations Educational, Scientific and Cultural Organization. The agreement extended copyright related rights protection for the first time to entities or individuals who are not the author but have a close relationship to a copyrighted work, including performers, sound recording producers and broadcasting organizations. As of August 2021, the treaty has 96 contracting parties, with a party defined as a State which has consented to be bound by the treaty and for which the treaty is in force.

    Copyright in the Netherlands is governed by the Dutch Copyright Law, copyright is the exclusive right of the author of a work of literature or artistic work to publish and copy such work.

    <span class="mw-page-title-main">DADVSI</span> French bill concerning copyright law

    Loi DADVSI is the abbreviation of the French Loi relative au droit d’auteur et aux droits voisins dans la société de l’information. It is a bill reforming French copyright law, mostly in order to implement the 2001 Information Society Directive, which in turn implements a 1996 WIPO treaty.

    In copyright law, related rights are the rights of a creative work not connected with the work's actual author. It is used in opposition to the term "authors' rights". Neighbouring rights is a more literal translation of the original French droits voisins. Both authors' rights and related rights are copyrights in the sense of English or U.S. law.

    <span class="mw-page-title-main">Rental Directive</span>

    Directive 92/100/EEC is a European Union directive in the field of copyright law, made under the internal market provisions of the Treaty of Rome. It creates a "rental and lending right" as a part of copyright protection, and sets out minimum standards of protection for the related rights of performers, phonogram and film producers and broadcasting organizations.

    <span class="mw-page-title-main">Copyright and Related Rights Regulations 2003</span> United Kingdom legislation

    The Copyright and Related Rights Regulations 2003 transpose the Information Society Directive "(Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society)",, into United Kingdom law. As such, its main effects are to modify the Copyright, Designs and Patents Act 1988 c. 48 with minor consequential modifications to other Acts and secondary legislation.

    <span class="mw-page-title-main">Directive on the legal protection of designs</span>

    Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs is a European Union directive in the field of industrial design rights, made under the internal market provisions of the Treaty of Rome. It sets harmonised standards for eligibility and protection of most types of registered design.

    The rule of the shorter term, also called the comparison of terms, is a provision in international copyright treaties. The provision allows that signatory countries can limit the duration of copyright they grant to foreign works under national treatment to no more than the copyright term granted in the country of origin of the work.

    <span class="mw-page-title-main">Freedom of panorama</span> Permissive provision in copyright laws

    Freedom of panorama (FOP) is a provision in the copyright laws of various jurisdictions that permits taking photographs and video footage and creating other images of buildings and sometimes sculptures and other art works which are permanently located in a public place, without infringing on any copyright that may otherwise subsist in such works, and the publishing of such images. Panorama freedom statutes or case law limit the right of the copyright owner to take action for breach of copyright against the creators and distributors of such images. It is an exception to the normal rule that the copyright owner has the exclusive right to authorize the creation and distribution of derivative works. The phrase is derived from the German term Panoramafreiheit.

    <span class="mw-page-title-main">Berne Convention</span> 1886 international assembly and treaty

    The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, was an international assembly held in 1886 in the Swiss city of Bern by ten European countries with the goal to agree on a set of legal principles for the protection of original work. They drafted and adopted a multi-party contract containing agreements for a uniform, crossing border system that became known under the same name. Its rules have been updated many times since then. The treaty provides authors, musicians, poets, painters, and other creators with the means to control how their works are used, by whom, and on what terms. In some jurisdictions these type of rights are being referred to as copyright.

    The WIPO Copyright and Performances and Phonograms Treaties Implementation Act, is a part of the Digital Millennium Copyright Act (DMCA), a 1998 U.S. law. It has two major portions, Section 102, which implements the requirements of the WIPO Copyright Treaty, and Section 103, which arguably provides additional protection against the circumvention of copy prevention systems and prohibits the removal of copyright management information.

    Layout designs (topographies) of integrated circuits are a field in the protection of intellectual property.

    <span class="mw-page-title-main">Digital Millennium Copyright Act</span> United States copyright law

    The Digital Millennium Copyright Act (DMCA) is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet. Passed on October 12, 1998, by a unanimous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA amended Title 17 of the United States Code to extend the reach of copyright, while limiting the liability of the providers of online services for copyright infringement by their users.

    Copyright in Oman is regulated by the Law for the Protection of Copyright and Neighbouring Rights issued by Royal Decree No 65/2008 which was later amended by Royal Decree No 132/2008.

    References

    1. Council Decision of 16 March 2000 on the approval, on behalf of the European Community, of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (2000/278/EC), OJ no. L089 of 2000-04-11, pp. 6–7.
    2. Hugenholtz, Bernt (2000). "Why the Copyright Directive is Unimportant, and Possibly Invalid". European Intellectual Property Review: 501. Archived from the original on 3 February 2006. Retrieved 5 February 2006.
    3. For that, and contrary views: Ginsburg, Jane C., "Can Copyright Become User-Friendly? Essay Review of Jessica Litman, Digital Copyright " (Prometheus Books 2001)(6 October 2001). Columbia-VLA Journal of Law & Arts, Vol. 25, No. 1, 2001. Available at SSRN: https://ssrn.com/abstract=288240 or doi : 10.2139/ssrn.288240.
      • Patricia Akester, "Technological Accommodation of Conflicts between Freedom of Expression and DRM: The First Empirical Assessment" available at https://ssrn.com/abstract=1469412 (unveiling, in the context of the Copyright/Information Society Directive, through empirical lines of enquiry, (1) whether certain acts which are permitted by law are being adversely affected by the use of DRM and (2) whether technology can accommodate conflicts between freedom of expression and DRM – linking, thus, policy conclusions to empirical findings).
    4. "Implementation of the directive 2001/29/EC of the European Parliament and the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the Information Society". Association of European Performers’ Organisations. Archived from the original on 4 November 2012. Retrieved 9 September 2012.
    5. "Sněmovní tisk 1111/0, část č. 1/3". psp.cz.
    6. Malcolm, Jeremy (26 August 2016). "European Copyright Leak Exposes Plans to Force the Internet to Subsidize Publishers". EFF. Retrieved 7 June 2018.
    7. McNamee, Joe (28 February 2017). "A positive step forward against the 'censorship machine' in the copyright directive". EDRi. Retrieved 7 June 2018.
    8. "Das Leistungsschutzrecht ist nicht die beste Idee". 19 February 2018. Retrieved 7 June 2018.
    9. Synek, Greg (11 April 2018). "European copyright directive will impose link tax to subsidize publishers". Techspot. Retrieved 7 June 2018.
    10. Vollmer, Timothy (24 April 2018). "56 organisations tell EU legislator to delete the absurd link tax". Creative Commons. Retrieved 7 June 2018.
    11. Woollacott, Emma (8 May 2018). "EU moves closer to introducing 'link tax' – no exceptions allowed". Forbes. Retrieved 7 June 2018.