Where is EU copyright going?

Dr. Ian Brown

FIPR, EDRi

Overview

Copyright legislation in Europe

Case law

Levies and “fair compensation”

Activism in European institutions

European copyright origins

Statute of Anne, 1710: “for the encouragement of learned men to compose and write useful books ”

Droit d’auteur: “a work of creation is intimately linked with its creator. The work cannot be separated from its author, like a child from his father.”

Stationer’s Guild, 1557: no “seditious and heretical books, rhymes and treatises”

The drivers behind copyright

Mickey debuted in 1928, and copyright would have expired this year

US Congress passed Copyright Term Extension Act in 1998 postponing until 2023

Peter Pan has perpetual rights in UK

EU Copyright 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

Provides for rights over reproduction, communication to the public and distribution (Articles 2—4)

EUCD Article 5

Long list of permissible exceptions (unlike US)

5.1 “Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral and essential part of a technological process…”

5.2: exceptions to Art. 2

5.3: exceptions to Art. 3

5.4: any of the above may apply to Art. 4

EUCD Article 6

6.1: “Member States shall provide adequate legal protection against the circumvention of any effective technological measures”

6.2: bans “manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services”

Finland, France, UK 2 years prison; Portugal 3 years; France 150,000€ fine

Only Germany, Denmark, Finland and UK have research exemptions

Improved UK law!

EUCD Article 7

7.1: “Member States shall provide for adequate legal protection against any person knowingly performing without authority… the removal or alteration of any electronic rights-management information”

Fair use/dealing and TPMs

DMCA and EUCD both ban DRM circumvention, even for fair use, BUT:

EUCD does not protect TPMs that prevent acts not restrictable by rights holders

EUCD requests “voluntary measures” from rights holders

If not forthcoming, most member states allow appeal to national tribunal (except Netherlands)

The “e-commerce safety clause”

“On-demand services” (“members of the public may access them from a place and at a time individually chosen by them”) exempt from fair dealing

Could include anything accessed over Internet under poor definition

Privacy

Article 9: “This Directive shall be without prejudice to provisions concerning in particular … data protection and privacy”

EUCD implementation

Chronology

Greece:	October 2002

Denmark:	December 2002

Italy:	March 2003

Luxembourg:	April 2003

Austria:	July 2003

Germany:	September 2003

UK:	October 2003

Ireland:	January 2004

Remaining old states

Spain, Sweden draft project laws

France, Finland, Portugal second drafts

Belgium third draft

Netherlands nearly finished in Parliament

Turkey, Norway Jan. 2005 earliest

IPR Enforcement Directive

Pushed by unholy alliance of BSA, Big Pharma

Opposed by wide range of interests – generic pharma, motorcycle association, Eurocommerce, BEUC + civil society

Must be transposed in next two years

Worst edges blunted but will return

IPRED provisions

Wide scope (Article 2 “any infringement”; “commercial scale” is vague and in Recitals)

Right of Information (Article 9 similar to s.512 DMCA)

Anton Pillar and Mareva orders

Overview

Copyright legislation in Europe

Case law

Levies and “fair compensation”

Activism in European institutions

Case law

Sony Playstation efforts "similar to the Fiat car company selling cars that forbid extra drivers to use the car, or that forbid the owner to drive outside the city borders… all the attempt to bind the purchaser with after-purchase statements are simply ridiculous." – Judge Edoardo Mori, 31/12/03, President, Bolzano Court

Overview

Copyright legislation in Europe

Case law

Levies and “fair compensation”

Activism in European institutions

Levies and “fair compensation”

EUCD 5.2(b): “in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject-matter concerned”

Berlin declaration

DRM and mass-prosecution of file sharers are not solutions acceptable to an open and equitable society.

Primary goal of copyright lawmaking must be a balance between the rights of creators and those of the public.

Collecting societies need to become more democratic, transparent and flexible, allowing their members to release their works under open-access, non-commercial licenses.

With the collecting societies suitably reformed, the successful European experience with exceptions and limitations compensated by levies should be reviewed for possible application to the on-line realm.

We urge the European Commission to consider a content flat-rate to ensure compensation of rights holders without control over users.

Overview

Copyright legislation in Europe

Case law

Levies and “fair compensation”

Activism in European institutions

EU institutions

European Commission: DGs InfoSoc, Markt, Competition, Trade

European Council of Ministers

Parliament

Other European institutions

OECD

UNESCO

WTO

ITU

WIPO/OMPI

Conclusion

EU has avoided worst excesses of US but is moving in that direction

Levies are a well-tested EU system that provide a compelling alternative to ever-expanding copy-rights and TPM protection

European institutions are open to public participation, but Council is still non-transparent and hard to persuade; IGOs are better

The trouble with DRM

Ian Brown

2003-02-04T16:39:26