Copyright law of the European Union

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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.

Contents

History

Attempts to harmonise copyright law in Europe (and beyond) can be dated to the signature of the Berne Convention for the Protection of Literary and Artistic Works on 9 September 1886: all European Union Member States are parties of the Berne Convention, [1] and compliance with its dispositions is now obligatory before accession. The first major step taken by the European Economic Community to harmonise copyright laws came with the decision to apply common standard for the copyright protection of computer programs, enacted in the Computer Programs Directive in 1991. A common term of copyright protection, 70 years from the death of the author, was established in 1993 as the Copyright Duration Directive.

The implementation of directives on copyright has been rather more controversial than for many other subjects, as can be seen by the six judgments for non-transposition of the Information Society Directive. [2] Traditionally, copyright laws vary considerably between member states, particularly between civil law and common law jurisdictions. Changes in copyright law have also become linked to protests against the World Trade Organization and globalisation in general.

Sources of law

The first decisions of the European Court of Justice covering copyright were made under the non-discrimination provision of Article 6 EC (formerly Art. 7),[ which? ] and under the provisions of Article 36 which allows for restrictions on trade between Member States if justified by the protection of industrial and commercial property (including copyright). [3] The directives were made under the internal market provisions of the treaties, notably Article 95 EC (formerly Art. 100a)

Protected rights

The following rights are protected by European Union law:

Moral rights are usually considered to be a matter for the national laws of the Member States, although some countries classify some of the above rights, especially the right of communication to the public, among the moral rights of the author rather than under his rights of exploitation.

Duration of protection

The rights of authors are protected within their lifetime and for 70 years after their death; [15] this includes the resale rights of artists. [16] For films and other audiovisual works, the 70-year period applies from the last death among the following people, whether or not they are considered to be authors of the work by the national law of the Member State: the principal director (who is always considered to be an author of the audiovisual work), the author of the screenplay, the author of the dialogue and the composer of music specifically created for use in the cinematographic or audiovisual work. [17]

The rights of performers last for 50 years from the distribution or communication of the performance, or for 50 years from the performance itself if it had never been communicated to the public during this period. [18] The rights of phonogram producers last for 50 years after publication of the phonogram, or for 50 years after its communication to the public if it had never been published during that period, or for 50 years after its creation if it had never been communicated to the public. [19] The rights of film producers last for 50 years after the communication of the film to the public, or for 50 years after its creation if it had never been communicated to the public during that period. [20] The rights of broadcasting organisations last for 50 years after the first transmission of a broadcast. [21] The European Commission proposed this be extended to 95 years and following this suggestion the European Parliament passed legislation to increase the term to 70 years.

Where a work enjoyed a longer period of protection under national law on 1 July 1995, its period of protection is not shortened. Otherwise, these terms of protection apply to all works which were protected in a Member State of the European Economic Area on 1 July 1995. [22] This provision had the effect of restoring the copyrights in certain works which had entered the public domain in countries with shorter copyright terms. [23] The EU Information Society Directive modified the term of protection of phonograms, calculating from the date of publication instead of from an earlier date of communication to the public, but did not restore the protection of phonograms which had entered the public domain under the former rules. [24] [25] All periods of protection run until 31 December of the year in which they expire.

Resale right

The Resale Rights Directive created a right for the creators of works of art to participate in the proceeds of the resale of their work. This right, which is sometime known by its French name droit de suite , is personal to the artist and can only be transferred by inheritance. It is calculated as a proportion of the resale price (net of tax), which varies between 4 and 5 percent for the portion of the resale price up to EUR 50,000 and 0.25% for the portion of the resale price above EUR 500,000. The total royalty is limited at EUR 12,500, equivalent to a resale price of EUR 2,000,000. Member States may choose to exempt sales of less than EUR 3000 from royalty. Works of art which are covered by this resale right are "works of graphic or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs, provided they are made by the artist herself or himself or are copies which have been made in limited numbers by the artist or under his or her authority."

Database rights

The Database Directive created a sui generis protection for databases which do not meet the criterion of originality for copyright protection. It is specifically intended to protect "the investment of considerable human, technical and financial resources" in creating databases (para. 7 of the preamble), whereas the copyright laws of many Member States specifically exclude effort and labour from the criteria for copyright protection. To qualify, the database must show "qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents". [26] Their creators have the right "to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database." This is taken to include the repeated extraction of insubstantial parts of the contents if this conflicts with the normal exploitation of the database or unreasonably prejudices the legitimate interests of the creator of the database. [27]

Member States may limit this right in the following cases: [28]

Database rights last for fifteen years from: [29]

Limitations

Temporary copying which is the result of the transmission of a work or of its legal use is not covered by the exclusive right of reproduction. [30]

Member states can implement other limitations from the list in Information Society Directive Article 5, or retain limitations which were already in force on 22 June 2001. Permitted limitations are: [31]

No new limitations may come into force after 22 June 2001 except those in the permitted limitations given in the Information Society Directive. Limitations may only be applied in balance with the Berne three-step test that asks the exceptions be "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". [32] However it was agreed at the time of drafting the WIPO Copyright and Performances and Phonograms Treaties that this wording "neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention." [33]

This explicit list of exceptions stands in contrast to the open-ended Fair Use doctrine employed by the United States, and the European Union has typically been staunchly against considering frameworks resembling Fair Use. [34] The use of short snippets of news articles in aggregation sites like Google News, covered by fair use in the United States, has been the subject of dispute between Google and European governments, following the passage of ancillary copyright for press publishers in Germany and the Directive on Copyright in the Digital Single Market EU-wide.

Protection of rights

The Enforcement Directive covers the remedies that are available in the civil courts and harmonises the rules on standing, evidence, interlocutory measures, seizure and injunctions, damages and costs and judicial publication. Germany recognises the so-called GEMA Vermutung whereby the burden of proof is on the alleged infringer in an infringement lawsuit. [35]

Collection monopolies

Copyright collecting societies in the European Union usually hold monopolies in their respective national markets. [36] Some countries create a statutory monopoly, while others recognise effective monopolies through regulations. [36] In Austria, the Society of Authors, Composers and Publishers (Gesellschaft der Autoren, Komponisten und Musikverleger, AKM) has a statutory monopoly. [36] German law recognizes GEMA as an effective monopoly, and consequently the burden of proof is on the accused infringer that a work is not managed by GEMA. [36] [37]

See also

European copyright law is harmonised to a large extent. However, EU legislation allows for differences in the manner of member state application. Pages related to specific copyright acts are listed below:

Related Research Articles

<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 2023, the treaty has 115 contracting parties. The WCT and WIPO Performances and Phonograms Treaty, are together termed WIPO "internet treaties".

In international law, 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.

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

Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights is a European Union directive in the field of EU copyright law, made under the internal market provisions of the Treaty of Rome. It was replaced by the 2006 Copyright Term Directive (2006/116/EC).

The WIPO Performances and Phonograms Treaty is an international treaty signed by the member states of the World Intellectual Property Organization and was adopted in Geneva on 20 December 1996. It came into effect on 20 May 2002. As of August 2023, the treaty has been 112 contracting parties.

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">Database Directive</span> Directive of the European Union regarding copyright law

The Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases is a directive of the European Union in the field of copyright law, made under the internal market provisions of the Treaty of Rome. It harmonises the treatment of databases under copyright law and the sui generis right for the creators of databases which do not qualify for copyright.

The copyright law of Switzerland is based on the concept of "author's rights", which is similar to the French copyright law, instead of the concept of copyright used in common law jurisdictions. The current copyright law of Switzerland is the Swiss Federal Copyright Act of 1992, which dates from October 9, 1992 and has only seen minor revisions since then. In October 2007, a revision was approved in order to implement the WIPO Copyright Treaty in the act, a process started in 2004 with the release by the Swiss Federal Council of a draft project.

<span class="mw-page-title-main">Copyright, Designs and Patents Act 1988</span> United Kingdom law

The Copyright, Designs and Patents Act 1988, also known as the CDPA, is an Act of the Parliament of the United Kingdom that received royal assent on 15 November 1988. It reformulates almost completely the statutory basis of copyright law in the United Kingdom, which had, until then, been governed by the Copyright Act 1956 (c. 74). It also creates an unregistered design right, and contains a number of modifications to the law of the United Kingdom on Registered Designs and patents.

Spanish copyright law, or authors' right law, governs intellectual property rights that authors have over their original literary, artistic or scientific works in Spain. It was first instituted by the Law of 10 January 1879, and, in its origins, was influenced by French authors' right law and by the movement led by Victor Hugo for the international protection of literary and artistic works. As of 2006, the principal dispositions are contained in Book One of the Intellectual Property Law of 11 November 1987 as modified. A consolidated version of this law was approved by Royal Legislative Decree 1/1996 of 12 April 1996: unless otherwise stated, all references are to this law.

"Author's rights" is a term frequently used in connection with laws about intellectual property.

<span class="mw-page-title-main">Related rights</span> Intellectual property rights of a creative work not connected with the works actual author

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.

Copyright in Russia developed originally along the same lines as in Western European countries. A first copyright statute dated back to 1828, and in 1857, a general copyright term of fifty years was instituted. The copyright law of 1911 was inspired by Western laws of the continental European tradition. One noteworthy exception in Russian copyright law was the "freedom of translation"—any work could be freely translated into another language.

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.

The current Copyright law of the Russian Federation is codified in part IV of the Civil Code of the Russian Federation. It entered in force on January 1, 2008.

<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, border-crossing 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, on the European continent they are generally referred to as author' rights or makerright.

<span class="mw-page-title-main">Copyright and Information Society Directive 2001</span> 2001 European Union Directive on Copyright

The Copyright and Information Society Directive 2001 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. The directive was first enacted in 2001 under the internal market provisions of the Treaty of Rome.

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.

Copyright law in Syria is regulated by the Copyright and Neighbouring Rights Law issued by Legislative Decree No. 62 of 2013. The Syrian Ministry of Culture, through its Copyright Office, is generally in charge of proposing copyright legislation to Parliament.

References

  1. ↑ Source: WIPO
  2. ↑ Commission of the European Communities v Kingdom of Spain (Case C-31/04), Commission of the European Communities v Republic of Finland (Case C-56/04), Commission of the European Communities v French Republic (Case C-59/04), Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Case C-88/04), Commission of the European Communities v Kingdom of Sweden (Case C-91/04), Commission of the European Communities v Kingdom of Belgium (Case C-143/04).
  3. ↑ Phil Collins v Imtrat Handelsgesellschaft mbH and Patricia Im- und Export Verwaltungsgesellschaft mbH and Leif Emanuel Kraul v EMI Electrola GmbH (Joined Cases C-92/92 and C-326/92), ECR (1993) I-05145. Land Hessen v G. Ricordi & Co. Bühnen- und Musikverlag GmbH (Case C-360/00), Tod's SpA, Tod's France v Heyraud SA (Case C-28/04)
  4. ↑ Rental Directive Article 7, replaced by Information Society Directive Article 2; also TRIPS Article 14, WPPT Articles 7 and 11
  5. ↑ Information Society Directive Article 3; also TRIPS Article 10, WCT Article 8, WPPT Articles 6, 10 and 14
  6. ↑ Information Society Directive Article 4
  7. ↑ Rental Directive Article 9; also TRIPS Article 10, WCT Article 6, WPPT Articles 8 and 12
  8. ↑ Rental Directive Article 6; also TRIPS Article 14 and WPPT Article 6
  9. ↑ Rental Directive Article 2; also TRIPS Article 11, WCT Article 7, WPPT Articles 9 and 13
  10. ↑ Warner Brothers Inc. and Metronome Video ApS v Erik Viuff Christiansen (Case C-158/86), ECR (1988) 02605. Metronome Musik GmbH v Musik Point Hokamp GmbH (Case C-200/96), Foreningen af danske Videogramdistributører, acting for Egmont Film A/S and Others v Laserdisken (Case C-61/97).
  11. ↑ Rental Directive Article 4
  12. ↑ Rental Directive Article 8; also WPPT Article 6
  13. ↑ Satellite and Cable Directive Articles 2 and 4
  14. ↑ Computer Programs Directive Article 4; also TRIPS Article 11
  15. ↑ Copyright Term Directive Article 1
  16. ↑ Resale Rights Directive Article 8
  17. ↑ Copyright Term Directive Article 2
  18. ↑ Copyright Term Directive Article 3(1)
  19. ↑ Copyright Duration Directive Article 3(2), as modified by Information Society Directive Article 11(2)
  20. ↑ Copyright Term Directive Article 3(3)
  21. ↑ Copyright Term Directive Article 3(4)
  22. ↑ Copyright Duration Directive Article 10,
  23. ↑ See also: EMI Electrola GmbH v Patricia Im- und Export and others (Case C-341/87), ECR (1989) 00079. Butterfly Music Srl v Carosello Edizioni Musicali e Discografiche Srl (CEMED) (Case C-60/98).
  24. ↑ Information Society Directive Article 11(2)
  25. ↑ Copyright Duration Directive Article 3(2), as modified
  26. ↑ Database Directive, Art. 7(1)
  27. ↑ Database Directive, Art. 7(5)
  28. ↑ Database Directive, Art. 9
  29. ↑ Database Directive, Art. 10
  30. ↑ Information Society Directive, Art. 5(1)
  31. ↑ Information Society Directive Article 5(3)(o)
  32. ↑ Information Society Directive, Art. 5(5); also TRIPS Article 13, WCT Article 10, WPPT Article 16
  33. ↑ "Agreed statement concerning Article 10 of the WIPO Copyright Treaty", 1996-12-20. See also WIPO Copyright Treaty (WCT) – Joint Declarations
  34. ↑ "(When) Is Copyright Reform Possible? Lessons from the Hargreaves Review" by James Boyle (2015)
  35. ↑ Torremans 2007, p. 265, footnote 41.
  36. 1 2 3 4 Torremans, Paul (2007). Copyright Law: A Handbook of Contemporary Research. Research Handbooks in Intellectual Property. Cheltenham: Edward Elgar Publishing. p. 263. ISBN   978-1-84542-487-9.
  37. ↑ Urheberrechtswahrnehmungsgesetz (Copyright Administration Act), 9 September 1965

Treaties

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