Spain: Analysis of the European Parliament & European Council Directive 2001/29/EC, of May 22 2001, on the Harmonisation of Certain Aspects of Copyright & Related Rights in the Information Society

Co-written by Ms Nerea Sanjuan Rodriguez

Background

The origins of this Directive go back to the Commission Green Paper published on July 19, 1995. In that Green Paper, the Commission pointed out some issues that had to be harmonised as a consequence of the effect of the new technologies in the field of copyright and related rights. Such paper evolved into a Commission Proposal of Directive, which has taken four years to become a Directive.

The Directive is a step forward in the harmonisation of copyright and related rights, but if falls short from accomplishing all the objectives proposed in the corresponding Green Paper.

The main purposes of the Copyright Directive, expressed in its Whereas, are, inter alia, to respond to the legal uncertainty provoked worldwide by the new digital technologies, in particular with regard to copyright and related rights, and to implement the World Intellectual Property Organisation (WIPO) Treaties signed in 1996 (WIPO Copyright Treaty, and WIPO Performances and Phonograms Treaty) on an international level; and to achieve the internal market by guaranteeing competition on a Community level, in particular, the four freedoms attached to the creation of the internal market.

The Directive seeks to fulfil all these purposes by trying to create a harmonised comprehensive legal framework for all the Member States of the European Union in the field of copyright and related rights in the information society. However, as we shall analyse, the Directive fails to achieve the goal of creating a full harmonised framework for copyright and related rights.

The Directive contains 61 Whereas and 15 Articles. The substantive contents of the Directive are resumed in the first eight Articles, which are explained in detail in the sixty-one Whereas that introduce the text of the Directive. Indeed, without the Whereas, the Directive would be almost incomprehensible.

Article 1.1 of the Directive states that its main purpose is to develop the legal protection of copyright and related rights on the internal market and, particularly, in the information society. Therefore, the Directive is not only addressed to the digital environment, but pays special attention to it.

In addition, Article 1.2 specifies which aspects of copyright and related rights are not covered by the Directive, i.e. computer programmes, rental and lending rights, certain rights related to copyright, broadcast by satellite and cable retransmission, the term of protection of copyright and certain related rights, and the legal protection of databases.

Article 2.- Reproduction right

This is the most important right to be considered with regard to adapting copyright and related rights to the new technologies. While the WIPO Treaties failed to reach an agreement in defining this reproduction right, the Directive states a very broad, general concept of it. This concept covers all types of reproduction: direct or indirect, permanent or temporary, in any media and in any form, in whole or in part.

Such a broad definition of the right of reproduction makes difficult in practice the normal functioning of the digital communications. Any communication through the digital technologies means making many copies of the information transmitted, either temporarily or even permanently. As a matter of fact, if the information transmitted includes contents protected by copyright and related rights, according to the broad concept defined in Article 2, the holders of the copyright and related rights in respect of such contents would have to authorise any copy of the same.

For this reason, Article 5.1 of the Directive limits the concept of the reproduction right described in Article 2 by stating that such reproduction right does not cover certain temporary acts of reproduction.

Those temporary acts of reproduction are very restrictively defined, as follows. They must be incidental and included in a technical process. Their purpose must be intermediary or for a lawful use, and they shall not have independent economic significance. The only problem with this definition of temporary acts of reproduction is that it is difficult to establish parameters to define when an act of reproduction is part of a technical process, or when it has independent economic significance. Furthermore, the fulfilment of these requirements makes the concept of temporary acts of reproduction rather restrictive.

An additional problem resides in the fact that this concept, as the concept of reproduction rights, reflects a very particular moment in time in respect of the development of new technologies. As we have already experienced, technologies are continuously changing and evolving, and most probably the concepts valid for today may not be suitable for the reality of technologies in years to come.

Article 3.- Right to communicate to the public and right to make works available to the public.

In relation to copyright, this Article states that authors are entitled to authorise third parties both to communicate their works to the public and to make them available to the public.

In respect of related rights to copyright, this Article only provides that right holders are entitled to authorise third parties to make their works available to the public. This Article is silent as to determine whether the holders of related rights hold the right to communicate their works to the public. This right has been expressly recognised to performers and broadcasting entities in Article 8 of the Council Directive 92/100/CEE on rental right and lending right and on certain rights related to copyright in the field of intellectual property. Regarding audiovisual and phonogram producers, this right has been recognised in the Spanish legislation through the applicable law in the case of audiovisual works, and through a recent court judgement handed down by the Spanish Supreme Court in the case of phonograms.

As for the new right of "making available to the public", it is conceived as a form of the right of communication to the public. The scope of this new right is to cover the situations where works are accessed through the digital networks "from a place and at the time individually chosen" by users, as technology permits. Therefore, this right covers the potentiality for an infinite number of individuals to access works on the digital networks, not necessarily in the same place and at the same time, as it was previously established. Furthermore, this new right does not just cover the access to works in the digital networks, but also the technological possibility for users to copy and store those works on their personal computers.

Unlike in the event of acts of distribution, it is further expressly provided that the first acts of communicating or making works available to the public do not cause the exhaustion of the rights of communication to the public and of making works available to the public, as occurs in relation to the right of distribution.

Article 4.-Right of distribution

According to the WIPO Treaties, this provision clarifies that the right of distribution only exists in relation to tangible copies of works. As we have previously pointed out, the right of making works available to the public covers the distribution online of digital copies of works, as intangible copies.

Furthermore, this Directive maintains the exhaustion of this right of distribution after the first sale or transfer of property of any work in the European Union, excluding the rental or lending of works.

Article 5 of the Directive provides for a regime of exceptions and limitations for copyright and related right holders to exercise the rights described above.

As we have already explained, Article 5.1 states the exception of temporary acts of reproduction in respect of the right of reproduction defined in Article 2 of this Directive.

Paragraphs 2 to 5 of Article 5 state the rest of the exceptions applicable to certain exploitation rights in respect of copyright and related rights. Indeed, this provision states an exhaustive and, at the same time, optional list of exceptions for the Member States to choose from.

The adoption of this legal technique by the European Union has been strongly criticised. The establishment of a exhaustive list is not very useful in a field that is constantly evolving. Furthermore, the ability of each Member State to select which exceptions will be implemented on a national level does not help harmonisation much.

With regard to the exceptions themselves, Article 5.2 states some exceptions to the right of reproduction. Some of them are subject to the payment of fair compensation. Among the exceptions listed, special reference must be made to the private use exception. This exception does not distinguish between digital and analogical copying for private use. The non distinction between private digital and analogical copies of works has been criticised, given the significant differences that exist among them, particularly in terms of diffusion and the economic impact of said diffusion. The possibilities of diffusion and economical exploitation of digital copies of works are much broader than regarding analogical copies. Only Whereas 38 of the Directive states the important differences that exist between both types of copies.

Article 5.3 of the Directive provides fifteen exceptions to the reproduction and communication to the public rights. These exceptions correspond to most of the exceptions that the Member States provide on a national level. Among them, there are exceptions related to the protection of public interests, such as cultural, scientific and educational purposes, information purposes, parody, caricature, religion and technical needs.

Article 5.4 further extends the exceptions provided for in paragraphs 2 and 3 to the right of distribution. This provision states that in those cases where Member States would have established an exception to the right of reproduction, they may also provide for the same exception to the right of distribution but only if justified by the purpose of the act of reproduction exempted.

Finally, Article 5.5 states a "three-step test" that any act of reproduction, communication to the public or distribution has to pass to be exempt from the protection of copyright and related rights. In particular, it states that the exceptions shall only apply in certain special cases, that these cases shall not conflict with the normal exploitation of the work or other subject matter, and they shall not prejudice the legitimate interests of the right holders. This is an additional filter to the effective application of the exceptions.

Article 6 of the Directive introduces this new issue to the framework of intellectual property protection at the Community level.

First of all, paragraphs 1 and 2 of Article 6 establish that Member States shall adopt the means to provide adequate legal protection to technological measures used to protect copyright and related rights in the information society.

In particular, Article 6.1 states that protection shall be granted against acts of circumvention of those technological measures, committed intentionally or having reasonable grounds to know the consequences of those acts. Additionally, Article 6.2 states that protection shall also be granted against preparatory acts of circumvention of those technological measures whose main purpose is the circumvention of the technological measures.

Secondly, Article 6.3 describes the concept of the "technological measures" to be protected, by stating two main requirements for protection. The "technological measures" shall serve in their normal functioning to protect works of art. Furthermore, those technological measures shall be "effective", in the sense that they must permit right holders either to control access to their works or to protect the use of those works.

Art. 6.4.- Technological measures versus Copyright and related rights’ exceptions

The regime of protection of technological measures constructed in Article 6.1, 6.2 and 6.3, gives rise to an important problem in terms of intellectual property law. The application of the referred effective technological measures may impede in many occasions the exercise of the exceptions provided for in Article 5 of this Directive.

For example, an individual working in a public library wants to access and reproduce a work of art protected by an encryption system, because he or she is preparing an study on the subject of that work. Due to the protected encryption system, he or she is being impeded to exercise the exception provided in Article 5.2(c) of the Directive.

In order to overcome this obstacle, Article 6.4 of the Directive intends to provide for a mechanism to permit the exercise of the exceptions of Article 5, while maintaining the regime of protection of technological measures ruled in Article 6.

First of all, the first paragraph of Article 6.4 provides that copyright and related right holders may adopt voluntary measures to allow for said exercise of exceptions. Whereas 51 of the Directive proposes as voluntary measures the adoption of agreements between the interested parties. However, this kind of measure is applicable in practise only to collective groups, but not to particular individuals.

In case these voluntary measures are not adopted, Article 6.4 paragraph 2 obliges Member States to adopt compulsory measures to assure the exercise of not all but some of the exceptions provided for in Article 5. It also states that Member States may adopt measures to permit the exercise of the private copy exception, established in Article 5.2 b).

Paragraph 3 of Article 6.4 further states that the voluntary or compulsory measures finally adopted shall also benefit the regime of protection established in Article 6.1 for effective technological measures, as described in Article 6.3.

Finally, paragraph 4 of this complex provision states that in the case of access to works at a chosen time and place, when this access is regulated by a contract, the wording of said contract would apply to said access over any other provision. Therefore, in those cases the system provided for in Article 6.4 to allow the exercise of the exceptions of Article 5 would not apply, even if the users involved fulfil the requirements to exercise any of the exceptions of Article 5.

As Whereas 53 provides, this Article 6.4 paragraph 4 intended to refer only to "on demand" access to works, protected by the right of making available to the public as defined in Article 3. Apparently, the legislator forgot to make that clear in the text of Article 6.4.

Article 7 of the Directive states the obligation of Member States to protect the information regarding copyright or related rights on works of art that goes with them when they are exploited. This protection has to extend to two different kinds of acts: the removal or alteration of that information, and the exploitation of works from which that information has been altered or removed.

The concept of "rights-management information" is described in Article 7.2, and it refers to the information provided by the rightholder of a work that identifies that work and any other aspect related to it in terms of copyright or related rights, such as the identity of the author and titleholders of the work, and the terms and conditions of use of those works by third parties.

As we have just said, this information goes with the works while they "travel" in the digital networks. Therefore, it is an electronic device that serves to extend the management of copyright and related rights of those works in the digital environment.

This issue of rights-management information is closely related to the activity of the national collecting societies of copyright and related rights, whose main role is to manage the copyright and related rights that their associates hold on their works of art. However, the ruling of the duties of this collecting societies is one of the issues that the Commission planned to regulate through this Directive but did not finally cover at all.

Article 8 to Article 15 of the Directive regulate some additional aspects related to this field, but not referring to the essence of copyright and related rights.

It is interesting to point out that Article 13 of the Directive regulates that the deadline to implement the text on a national level is December 22, 2002. It seems rather improbable, however, that any of the Member States manages to comply with this obligation.

This Directive has been and will be polemic until its final implementation at national level, and probably thereafter. As we have pointed out, many of the solutions that the Community legislator has adopted could have been very much improved. Actually, the fact that 61 Whereas have to explain the contents of, not fifteen, but the eight substantive Articles of the Directive shows that even the legislator found difficult to interpret the provisions contained in this text.

However, this is a very complex field to rule and harmonise. At least, this Directive has helped to raise some important issues that had to be discussed and resolved on a European level, as the WIPO Treaties did on an international level. Most of all, this Directive and the previous treaties have served to awake public opinion about the importance of regulating the digital networks, and the importance of the field of copyright and related rights in the information society.