Copyright Directive
Encyclopedia
The Copyright Directive (officially the 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 and sometimes known as the Information Society Directive or the InfoSoc Directive), is a directive of the European Union
enacted to implement the WIPO Copyright Treaty
, to which the European Union is a party. It was enacted under the internal market
provisions of the Treaty of Rome
.
A highly controversial Directive, it was, at the time, the most heavily lobbied measure to pass the European Parliament
. In its final form, it included only very narrow exceptions to anti-circumvention measures and
exclusive right
s. As a result, it is often regarded by the academic community as a victory for copyright-owning interests (publishing, film, music and major software companies) over content users' interests.
Many important details are not specified in the Directive, and as a result, Member States have significant freedom in certain aspects of transposition
. Due to escalating public awareness of the importance of copyright legislation, the process of implementation has not been entirely predictable. The European Commission
took proceedings in the European Court of Justice
against six Member States for failure to implement the Directive within the required period.
and related rights
.
They distinguish the "reproduction right" (Art. 2) from the right of "communication to the public" or "making
available to the public" (Art. 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 right of communication to the public or making available to the public is also distinguished from the "distribution right"
(Art. 4) by the fact that it is not subject to the first-sale doctrine
.
the list was one source of controversy over the directive: in principle, Member States may only apply limitations which
are on the agreed list, although other exceptions and limitations which were in place on 2001-06-22 may remain in force
[Art. 5(3)(o)]. There are no exceptions to copyright (classes of work which are not eligible for copyright), although
many (but not all) Member States exclude laws from copyright protection.
One limitation is obligatory: transient or incidental copying as part of a network transmission or legal use. Hence
internet service provider
s are not liable for the data they transmit, even if it infringes copyright. The other
limitations are optional, with Member States choosing which they apply. All limitations must be applied in accordance with
the Berne three-step test
, that is in certain special cases which do not conflict with a normal exploitation of the
work and which do not unreasonably prejudice the legitimate interests of the rightholder [Art. 5(5)].
which is designed to restrict or prevent certain acts which are not authorised by the rightholder. Member States must
provide "adequate legal protection", which may be civil, criminal or a mix of the two. Technological measures are only
protected if they are "effective", which means not when they actually work but when they have been successfully implemented. A simple password is thus "effective" irrespective of the ease with which it may be cracked. Rightholders who use such anti-circumvention measures must allow reproduction which is permitted under the limitations to copyright protection [Art. 6(4)].
Digital rights management
information is similarly protected (Art. 7).
Unlike Section 1201 of the Digital Millennium Copyright Act
, which only prohibits circumvention of access control measures, InfoSoc Directive also prohibits circumvention of copy protection measures, making it potentially more restrictive. In both DMCA and InfoSoc Directive, production, distribution etc. of equipment used to circumvent both access and copy-protection is prohibited. Under DMCA, a potential user who wants to avail herself of an alleged fair use
privilege to crack copy protection (which is not prohibited) would have to do it herself since no equipment would lawfully be marketed for that purpose. Under InfoSoc Directive, this possibility would not be available since circumvention of copy protection is illegal.
had yet to implement the Directive nationally. Some
implementation measures include:
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
enacted to implement the WIPO Copyright Treaty
World Intellectual Property Organization Copyright Treaty
The World Intellectual Property Organization Copyright Treaty, abbreviated as the WIPO Copyright Treaty, is an international treaty on copyright law adopted by the member states of the World Intellectual Property Organization in 1996...
, to which the European Union is a party. It was enacted under the internal market
Single market
A single market is a type of trade bloc which is composed of a free trade area with common policies on product regulation, and freedom of movement of the factors of production and of enterprise and services. The goal is that the movement of capital, labour, goods, and services between the members...
provisions of the Treaty of Rome
Treaty of Rome
The Treaty of Rome, officially the Treaty establishing the European Economic Community, was an international agreement that led to the founding of the European Economic Community on 1 January 1958. It was signed on 25 March 1957 by Belgium, France, Italy, Luxembourg, the Netherlands and West Germany...
.
A highly controversial Directive, it was, at the time, the most heavily lobbied measure to pass the European Parliament
European Parliament
The European Parliament is the directly elected parliamentary institution of the European Union . Together with the Council of the European Union and the Commission, it exercises the legislative function of the EU and it has been described as one of the most powerful legislatures in the world...
. In its final form, it included only very narrow exceptions to anti-circumvention measures and
exclusive right
Exclusive right
In Anglo-Saxon law, an exclusive right is a de facto, non-tangible prerogative existing in law to perform an action or acquire a benefit and to permit or deny others the right to perform the same action or to acquire the same benefit. A "prerogative" is in effect an exclusive right...
s. As a result, it is often regarded by the academic community as a victory for copyright-owning interests (publishing, film, music and major software companies) over content users' interests.
Many important details are not specified in the Directive, and as a result, Member States have significant freedom in certain aspects of transposition
Transposition (law)
The incorporation of international law is the process by international agreements become part of the municipal law of a sovereign state. A country incorporates a treaty by passing domestic legislation that gives effect to the treaty in the national legal system....
. Due to escalating public awareness of the importance of copyright legislation, the process of implementation has not been entirely predictable. The European Commission
European Commission
The European Commission is the executive body of the European Union. The body is responsible for proposing legislation, implementing decisions, upholding the Union's treaties and the general day-to-day running of the Union....
took proceedings in the European Court of Justice
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
against six Member States for failure to implement the Directive within the required period.
Definition of copyright
Articles 2–4 contain a brief definition of the property rights associated with copyrightCopyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
and related rights
Related rights
Related rights is a term in copyright law, used in opposition to the term "authors' rights". The term neighbouring rights is exactly equivalent, and is a more literal translation of the original French droits voisins. Related rights in civil law are similar to authors' rights, but are not connected...
.
They distinguish the "reproduction right" (Art. 2) from the right of "communication to the public" or "making
available to the public" (Art. 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
WIPO Performances and Phonograms Treaty
The WIPO Performances and Phonograms Treaty is an international treaty signed by the member states of the World Intellectual Property Organization was adopted in Geneva on December 20, 1996...
(Arts. 8 & 10 respectively).
The right of communication to the public or making available to the public is also distinguished from the "distribution right"
(Art. 4) by the fact that it is not subject to the first-sale doctrine
First-sale doctrine
The first-sale doctrine is a limitation on copyright that was recognized by the Supreme Court of the United States in 1908 and subsequently codified in the Copyright Act of 1976,...
.
Exceptions and limitations
Article 5 lists the limitations which Member States may apply to copyright and related rights. The restrictive nature ofthe list was one source of controversy over the directive: in principle, Member States may only apply limitations which
are on the agreed list, although other exceptions and limitations which were in place on 2001-06-22 may remain in force
[Art. 5(3)(o)]. There are no exceptions to copyright (classes of work which are not eligible for copyright), although
many (but not all) Member States exclude laws from copyright protection.
One limitation is obligatory: transient or incidental copying as part of a network transmission or legal use. Hence
internet service provider
Internet service provider
An Internet service provider is a company that provides access to the Internet. Access ISPs directly connect customers to the Internet using copper wires, wireless or fiber-optic connections. Hosting ISPs lease server space for smaller businesses and host other people servers...
s are not liable for the data they transmit, even if it infringes copyright. The other
limitations are optional, with Member States choosing which they apply. All limitations must be applied in accordance with
the Berne three-step test
Berne three-step test
The Berne three-step test is a clause that is included in several international treaties on intellectual property. It imposes on signatories to the treaties constraints on the possible limitations and exceptions to exclusive rights under national copyright laws.- Berne Convention :The three-step...
, that is in certain special cases which do not conflict with a normal exploitation of the
work and which do not unreasonably prejudice the legitimate interests of the rightholder [Art. 5(5)].
Technological measures
Article 6 of the Directive provides protection for "technological measures", any technology device or componentwhich is designed to restrict or prevent certain acts which are not authorised by the rightholder. Member States must
provide "adequate legal protection", which may be civil, criminal or a mix of the two. Technological measures are only
protected if they are "effective", which means not when they actually work but when they have been successfully implemented. A simple password is thus "effective" irrespective of the ease with which it may be cracked. Rightholders who use such anti-circumvention measures must allow reproduction which is permitted under the limitations to copyright protection [Art. 6(4)].
Digital rights management
Digital rights management
Digital rights management is a class of access control technologies that are used by hardware manufacturers, publishers, copyright holders and individuals with the intent to limit the use of digital content and devices after sale. DRM is any technology that inhibits uses of digital content that...
information is similarly protected (Art. 7).
Unlike Section 1201 of the Digital Millennium Copyright Act
Digital Millennium Copyright Act
The Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...
, which only prohibits circumvention of access control measures, InfoSoc Directive also prohibits circumvention of copy protection measures, making it potentially more restrictive. In both DMCA and InfoSoc Directive, production, distribution etc. of equipment used to circumvent both access and copy-protection is prohibited. Under DMCA, a potential user who wants to avail herself of an alleged fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
privilege to crack copy protection (which is not prohibited) would have to do it herself since no equipment would lawfully be marketed for that purpose. Under InfoSoc Directive, this possibility would not be available since circumvention of copy protection is illegal.
Implementation
As of September 2006, only SpainSpain
Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...
had yet to implement the Directive nationally. Some
implementation measures include:
- Czech RepublicCzech RepublicThe Czech Republic is a landlocked country in Central Europe. The country is bordered by Poland to the northeast, Slovakia to the east, Austria to the south, and Germany to the west and northwest....
: the amendment No. 216/2006 Coll. of the Czech Copyright Acthttp://psp.cz/sqw/text/tiskt.sqw?O=4&CT=1111&CT1=0 - FinlandFinlandFinland , officially the Republic of Finland, is a Nordic country situated in the Fennoscandian region of Northern Europe. It is bordered by Sweden in the west, Norway in the north and Russia in the east, while Estonia lies to its south across the Gulf of Finland.Around 5.4 million people reside...
: 2005 amendment to the Finnish Copyright Act and Penal Code2005 amendment to the Finnish Copyright Act and Penal CodeThe 2005 amendment to the Finnish Copyright Act and Criminal Code, commonly known as Lex Karpela, was an amendment to make the Finnish copyright legislation and criminal code comply with the EU Copyright Directive 2001/29/EC... - FranceFranceThe French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
: Loi no. 2006-961 du 1er août 2006 relative au droit d'auteur et aux droits voisins dans la société de l'informationDADVSIDADVSI is the abbreviation of the French Loi sur le Droit d’Auteur et les Droits Voisins dans la Société de l’Information...
, better known as DADVSI - United KingdomUnited KingdomThe United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
: Copyright and Related Rights Regulations 2003Copyright and Related Rights Regulations 2003The Copyright and Related Rights Regulations 2003 transpose 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,...
See also
- Copyright law of the European UnionCopyright law of the European UnionThe copyright law of the European Union has arisen in an attempt to harmonise the differing copyright laws of European Union member states. It consists of a number of directives, which the member states are obliged to enact into their national laws, and by the judgments of the Court of Justice of...
- Digital Millennium Copyright ActDigital Millennium Copyright ActThe Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...
- Peer-to-peerPeer-to-peerPeer-to-peer computing or networking is a distributed application architecture that partitions tasks or workloads among peers. Peers are equally privileged, equipotent participants in the application...
External links
- Text of the Directive (as corrected)
- Overview of the Directive in Member States
- Guide from the Foundation for Information Policy Research
- EUCD - Copyright extensions that harm by FSFE
- EUCD materials from the Harvard Digital Media Project
- EUCD.info