UK: Copy Right or Copy Wrong?

Last Updated: 29 March 1999
Copy Right or Copy Wrong?

By IP lawyer, Colleen Donovan, Hammond Suddards

Copyright owners received a welcome boost with the recent adoption of controversial amendments to the draft EU Directive on Copyright and Related Rights in the Information Society. While we still await the final text of the amended draft Directive, on which the European Parliament is scheduled to vote on 11 February 1999, initial reports suggest that the amended draft Directive significantly strengthens the position of rights owners. However, it does leave a lingering uncertainty, particularly for on-line service providers who have been handed a larger role than they may have bargained for.

Initial reports suggest that the amendments, which were voted on by the Legal Affairs Committee on 20 January 1999, strengthen the rights of copyright owners in a number of important respects:-

Temporary Reproduction

The draft Directive was first presented in 1997. Since then, one of the major areas for debate has been the extent to which the limitations and exceptions under the draft Directive should permit incidental or temporary reproduction in electronic form, for example, in the course of making material available to subscribers via the Internet.

In the early draft, technical temporary reproduction having no independent economic significance would not require the specific authorisation of the rights owner. On-line service providers argued that they should not be responsible for the actions of others. Rights owners felt that this exemption would in fact facilitate infringement.

The effect of the recent amendments suggest that the law should be harmonised so that even transitory or temporary reproduction must be authorised by the rights owner, exposing on-line service providers to direct liability for the actions of their subscribers.

While this may make it easier for rights owners to pursue infringers, it does leave a number of questions unanswered. The whole issue of the liability of on-line service providers is a matter for separate debate and is tackled in the recent proposal for a Directive on Certain Legal Aspects of Electronic Commerce in the Internal Market (COM (1998) 586). A number of crucial questions will be on the agenda for discussion. For example, in relation to on-line service providers:-

  • How and to what extent are they expected to police the content of transmissions, particularly as the volume of transmissions increases?
  • How are they to be protected against an over zealous rights owner who threatens infringement proceedings without proper cause, particularly if the on-line service provider does not have sufficient information to refute the allegations?
  • How will they assess information provided by a rights owner as to possible infringement by a subscriber?
  • Will they be responsible to a subscriber who is mistakenly denied access to material or is refused services?

It will be interesting to see how the debate proceeds and particularly the manner in which the draft Directives will interact in practice.

Anti-Hacking Measures

Copyright owners are acutely aware that the new digital technologies will transform the way in which music, films, literature and other arts are delivered to the consumer. Perfect reproductions can be made with ease and transmitted throughout the world using digital technology, which could deprive rights owners of revenues which they argue are necessary to encourage creativity and ensure a proper return for investment.

The draft Directive recognises the entitlement of rights owners to use technological measures, such as encryption, to prevent infringement. Initial reports suggest that the amendments to the draft Directive provide even greater legal protection against "hacking" devices and activities designed to circumvent such measures by harmonising the law and requiring Member States to take a generalised approach in tackling this problem.

Private Copying

Another area of fierce debate has been the issue of private copying. Rights owners argue that digital reproduction produces copies which are indistinguishable from the original and that private copying could seriously damage their economic interests. Users and equipment providers argue that every person who tapes a favourite soap for a friend should not be branded an pirate - misguided perhaps, but not armchair piracy.

The amendments to the draft Directive appear to suggest a compromise, although the draft Directive stops short of harmonising the law in this important area. The amendments propose that Member States may exempt private copying provided that appropriate remuneration is given to rights owners, for example, by imposing a levy on blank tapes, videos and CDs.

In Short...

The amendments to the draft Directive focus heavily on strengthening the interests of rights owners, recognising the importance intellectual property protection in the light of emerging technologies. It now remains to be seen how practical implementation of the Directive will lead to further changes and harmonisation. The debate isn't over yet!

For further information please contact Colleen Donovan, e-mail: Click Contact Link , 7 Devonshire Square, Cutlers Gardens, London EC2M 4YH, UK, Tel: + 44 171 655 1000

This article was first published in the March 1999 of Copyright World, e-mail Click Contact Link

The information and opinions contained in this article are provided by Hammond Suddards. They should not be applied to any particular set of facts without appropriate legal or other professional advice.

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