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), 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 rights. 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.
Definition of copyright
Articles 2–4 contain a brief definition of the property rights associated with
copyright 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.
Exceptions and limitations
Article 5 lists the limitations which Member States may apply to copyright and related rights. The restrictive nature of
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 providers 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)].
Technological measures
Article 6 of the Directive provides protection for "technological measures", any technology device or component
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.
Implementation
As of September 2006, only
Spain had yet to implement the Directive nationally. Some
implementation measures include:
- Czech Republic: the amendment No. 216/2006 Coll. of the Czech Copyright Act
See also
