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EU Copyright Directive

25 August 2006
by eub2 -- last modified 03 January 2007

The 2001 EU directive extended copyright protection to the Internet and other new media.


On April 9 2001, the Council of the EU adopted a new directive which extends copyright protection to the Internet and other new media.

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

Intellectual, industrial and commercial property - European Parliament factsheet (general)

EU tries to be balanced

The EU had battled for three years to come up with new legislation which was balanced so that it gave artists protection for their work on the Internet, cellphones, digital television and digital music players, without impinging on users' private rights. Many NGOs, interest groups and Internet campaigners had lobbied hard for the laws not to be too stringent making using any protected material illegal, even on a no-profit basis.

In response, the new law narrowed the definition of 'private copy' as well as making commercial use of copied Internet material illegal. People can copy music - or other digital information from the Web - for personal use and for sharing with friends if the rightholder gains 'fair compensation'.

The European Commission hoped the legislation would strengthen copyright protection in order to boost electronic commerce in music, film, and literature on the Internet. It effectively rules out a Napster-style music-sharing service in the Union.

The European Commission said the new rules would provide a 'secure environment' for cross-border trade in copyright protected goods and services and will ease the development of electronic commerce in new and multimedia products and services.

The final text of the directive includes all nine of the compromise amendments voted by the European Parliament at its February 2001 plenary session.

What does it contain?

The directive harmonises across the EU the rights of reproduction, distribution, communication to the public, the legal protection of anti-copying devices and rights management systems. It also includes 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 rightholders plus a mechanism to secure the benefit for users for certain exceptions where anti-copying devices are in place.

The EU and its member states will now be able 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.

Texts of treaties from WIPO database

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. The exemption only applies when reproduction forms an essential part of a technological process and takes place in the context of a transmission in a network.

Optional exceptions

There is now a detailed list of exceptions to the reproduction right and right of communication to the public. All are optional and therefore countries may choose to apply any or all of these exceptions. The list is exhaustive so that no other exception may be applied. This is a controversial measure and so 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 applies to three of the exceptions, namely reprography (photocopying), private copying and broadcasts reproduced for viewing or listening in certain social institutions and 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. 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 was the most contested issue of the whole directive. The problem has been how to ensure that an exception, for example an act of reproduction or copying for illustration for teaching, could be made use of where a copyrightholder also has in place an anti-copying device such as 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, rightholders have complete control over the manufacture, distribution etc. of devices designed to circumvent anti-copying devices. Secondly, the directive provides that rightholders 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 countries to ensure that such means exist.

Community exhaustion

The directive applies Community exhaustion and not international exhaustion for the distribution right. Therefore, once a copyright protected product such as a CD or CD-ROM is marketed in the EU by or with the consent of the rightholder, the distribution right is said to be "exhausted" i.e. there is no right to restrict further distribution in the EU.

Copyright and Neighbouring Rights - documents

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