The European Commission has adopted a Communication on Copyright and Related
Rights in the Information Society. The Communication, which is a follow-up
to a July 1995 Green Paper, outlines the legislative initiatives required to
achieve throughout the European Union a level playing field for copyright
protection in the framework of the European Single Market and presents them
in a coherent context. A level-playing field is essential to the success of
the Information Society in the EU, as the content of most of the new
interactive services are protected by intellectual property. EU action to be
proposed in the first half of 1997, will focus on the reproduction, on-line
communications and distribution of protected material, as well as on
protection against the circumvention of anti-copy devices and the like. This
action will be undertaken in parallel with action at the world level, on
which international negotiations are in progress.
Single Market Commissioner, Mario MONTI, on whose initiative the
Communication was adopted, commented: We have to provide the basis for the
Information Society to be a success for investors, rightholders, users and
consumers, while ensuring we respect both the Single Market and current
multilateral initiatives at the world level.
In its Communication, the Commission addresses all issues raised in the
Commission's Green Paper, and outlines four priorities for legislative
action to eliminate distortions of competition between Member States and/or
significant barriers to trade in copyright goods and services in the
following areas:
* Reproduction right: The reproduction right has always played a key role
in copyright protection. Its role will increase even more in the new
information society environment. Once protected material is converted
into electronic form and transmitted digitally, it is much more
vulnerable to exploitation by copying than in the past.
In view of the development of new forms of reproduction, such as scanning
of printed works, or loading and/or storing of digitised material (such as
text, music and video) in a computer memory or other electronic system,
there is a need for a clear definition of what exactly is protected as
well as an equivalent level of protection across the EU.
The Commission will therefore pursue further harmonisation of the
reproduction right as a matter of priority. In so doing, harmonisation of
the limitations/exceptions to the reproduction right will be of utmost
importance.
As further explained in the Communication, the present differentiation in
Member States' legislation or case law, notably between unlimited
exclusive rights of reproduction, cutting down the exclusive right to a
right to remuneration (legal license), and permitting certain acts of
reproduction without remuneration ( fair use exception) will have to be
reassessed and further harmonised in the new electronic environment.
* Communication to the public right: The market in on-demand services is
considered to be one of the main areas of growth, with further
technological developments to come. On-demand services are
characterised by the fact that material stored in a digital format (such
as texts, films, phonograms, software, or databases) is made available
to the public or its individual members in such a way that they may
access it and request its transmission individually with respect to time
and place.
As the exploitation of works and other protected material in the context
of on-demand services will, to a large extent, depend on EU-wide markets
and a clear and coherent level of protection of these activities across
Member States, the right applicable to on-demand transmissions will have
to be harmonised as a matter of priority.
The Commission will propose protecting digital on-demand transmissions
on the basis of a further harmonised right of communication to the public.
This right will include the making available to members of the public
individual access to works and other protected matter . Harmonised
measures will also set out the limitations to this right, which will
follow the line taken for the harmonisation of the reproduction right.
* Legal protection of anti-copying systems: Digitisation not only brings
about new risks for rightholders of copyright and related rights, it
also makes it potentially easier to administer and control acts of
exploitation by means of access control, identification and anti-copying
devices.
A successful large-scale introduction of such systems or devices - which
are under development or have already been developed by the private sector
- will depend upon the implementation of measures that provide for the
legal protection in relation to such acts such as circumvention, violation
or manipulation of these systems.
Community legislation is therefore required to harmonise the legal
protection of the integrity of technical identification and protection
schemes.
* Distribution right: The distribution right entitles the author of a work
to require his consent for any distribution of tangible copies of his
work. Important differences exist between Member States as to the exact
form as well as the exceptions to the right, in particular with respect
to its exhaustion . The distribution right may be considered to be
exhausted with respect to tangible copies of a work once they are put
into circulation in the market with the consent of the rightholder.
In certain cases, some Member States provide for no exhaustion of the
distribution right at all whereas others apply exhaustion even when the
first legal act of distribution has occurred in a place outside the EU
( international exhaustion ). The absence of harmonised rules for most
categories of works provokes significant obstacles to the free trade in
goods as rightholders, under certain conditions, are allowed to block
imports of copies of their work from a Member State applying
international exhaustion .
The Commission therefore intends to harmonise the distribution right for
authors as regards all categories of works. Any initiative in this field
should also affirm that the principle of exhaustion applies to the
distribution of goods only and not to the provision of services, including
on-line services.
Other equally fundamental issues for the exploitation of copyright in the
Information Society (relating to the broadcasting right, the applicable
law and law enforcement, management of rights, moral rights) necessitate
further consideration and/or action before decisions can be taken. This
implies, inter alia, the need to evaluate further relevant market
developments, through studies and/or contact with interested parties and
Member States. Some of these initiatives have already started, others will
be launched later this year.
Copyright, the Information Society and the Single Market
The Communication is based on the results of consultations launched in 1995
with the adoption of the Commission's Green Paper on Copyright and Related
Rights in the Information Society (see IP(95)798). The Green Paper focused
the debate with the other EU institutions, Member States, industry,
rightholders, users and all other interested parties on the challenges to
copyright and related rights brought about by the new technologies.
Following publication of the Green Paper, interested parties provided more
than 350 submissions. A conference in Florence in June 1996 (see IP(96)479)
marked the end of this extensive consultation process of almost two years.
Many interested parties stressed the necessity of a Single Market for the
successful development and commercial viability of new Information Society
products and services. The Single Market must, in particular, offer adequate
and secure conditions for investment and legal security across the EU and
not be fragmented by different sets of rules in different Member States.
The Communication states that further harmonisation needs to adjust and
complement the existing legal framework on copyright and related rights,
where this is necessary for the proper functioning of the Single Market and
the need to bring about a favourable environment which protects and
stimulates creativity and innovative activities across Member States. In so
doing, the traditionally high level of copyright protection in Europe must
be maintained and further developed at both European and international
level. At the same time, a fair balance of rights and interests between the
different categories of rightholders and between rightholders and users must
be safeguarded.
The copyright Communication forms part of Commission efforts to ensure a
flexible regulatory framework to ensure a Single Market for Information
Society services (see Memo/96/94). A number of Directives have already been
adopted, such as the data protection Directive (95/46/EC) and the legal
protection of databases Directive (96/9/EC). In other areas, legislative
initiatives are well underway (such as the Commission Green Papers on
encrypted services, Commercial Communications and the protection of minors
in audio visual services, and the proposed Directive on a transparency
mechanism ).
The international aspects of the Information Society
Progress needs also to be made concerning copyright and related rights at
the international level. An isolated response from the European Union will
not be sufficient. As the Information Society has a global nature, it
requires global answers, at least with respect to the most crucial points
related to the digital environment. A Diplomatic Conference is due to take
place from 2 to 21 December 1996 under the auspices of the World
Intellectual Property Organisation (WIPO) on the possible conclusion of
three international treaties - a Protocol to the Berne Convention, a New
Instrument for the Protection of Performers and Producers of Phonograms and
a possible Instrument for the sui generis protection of databases. The
Commission, in its Communication, stresses the importance of a successful
outcome of this Conference as it provides the timely and unique opportunity
for agreeing on international minimum standards of protection. Such
agreements could considerably minimise the risks of divergent approaches in
legislation and the creation of havens for piracy.
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