EU law in the area of copyright and marketing services is becoming ever more significant. Paul Gardner, Osborne Clarke’s interactive/digital media specialist, considers recent moves towards the harmonisation of copyright law throughout the EU.
EU law in the area of copyright and marketin of copyright and marketing services is becoming ever more significant. Paul Gardner, Osborne Clarke's interactive/digital media specialist, considers recent moves towards the harmonisation of copyright law throughout the EU.
On 10 December 1997, the European Commission adopted a proposal for a Directive to harmonise copyright and related rights in the "Information Society". The Commission's aim is to establish a level-playing field in the EU for products and services containing intellectual property rights, and also to provide copyright owners with improved protection. The proposed Directive places particular emphasis on new media products and services, including those delivered on physical media (such as CD-ROM and DVD) and those delivered on-line and by the Internet.
Overview of the Proposed Directive
The proposed Directive would harmonise certain aspects of the copyright laws of Member States, in particular, the rights of reproduction, communication to the public and distribution. In addition, it would harmonise the legal protection of anti-copying systems and information for managing rights.
The harmonisation of the above rights would not require any substantial changes to copyright law in the UK. However, there are several points of interest relating to the application of these rights in a digital environment. In particular:
The right of reproduction is very broad and is intended to cover any form of reproduction, both on-line and off-line and in both material and immaterial form. Accordingly, the uploading and downloading of a work in a digital form and the storage of a work in the memory of a computer would be an infringement of this right.
The right of communication to the public makes it clear that making a work available by means of any form of on-line distribution service, including an "on demand" distribution service, would be an infringement of this right.
The right of communication to the public makes it clear that doing so, will not exhaust this right in respect of that work. Although this is considered to be the position under UK copyright law, it would certainly be helpful to clarify this point.
The right of distribution makes it clear that the first sale or other transfer of ownership of a work outside the Community would not exhaust the rights of the copyright owner in respect of that work within the Community. The proposed Directive would therefore expressly exclude the application of international exhaustion.
However, the proposed Directive also provides for a number of exceptions to the reproduction right and the communication right. Some are obligatory (Member States would be required to implement them) and others are optional for Member States.
The most important of these exceptions are:
the obligatory exception to the reproduction right that would exclude certain acts of reproduction that are dictated by technology. These are therefore considered to be incidental to the use of a work, rather than having any separate economic significance. This would, for example, cover the creation of certain "cache" copies that arise during transmission over the Internet.
the optional exception to the reproduction right which would allow individuals to copy a work for private use and non-commercial purposes.
a further optional exception to the reproduction right that would allow establishments accessible to the public to reproduce works where this is not done for direct or indirect economic or commercial advantage.
a final optional exception to both the reproduction right and the communication right that would allow the use of excerpts in connection with the reporting of current events.
If the UK were to implement all of the exceptions set out in the proposed Directive, then substantial modifications to copyright law in the UK law would be required.
Anti-copying and rights management systems
The proposed Directive would require Member States to provide protection for copyright owners against any activities that would enable or facilitate the circumvention of any technological measures designed to protect any copyright or related rights.
Similarly, it would require Member States to provide adequate legal protection against any person who removes or alters electronic rights management information or who distributes any works from which electronic rights management information has been removed or altered.
The proposed Directive expressly does not address the issue of the liability of on-line providers, on the basis that this issue involves other aspects of law such as defamation and privacy. The Commission proposes to deal with this issue by separate legislation. However, the obligatory exception to the reproduction right in respect of acts of reproduction that are dictated by technology would, of course, mean that access and service providers would not be liable for the creation of incidental temporary "cache" copies that arise during transmission over the Internet.
Implications of the Proposed Directive
The Commission states that the proposed Directive, "represents a fair balance between the divergent and often conflicting rights and interests concerned". Predictably, however, not everyone considers that the proposed Directive has balanced those interests correctly, and throughout 1998, it was the subject of intense lobbying.
On one side of the debate are copyright owners and their associations. On the other, on-line service providers and hardware manufacturers who have joined forces as the "Ad Hoc Alliance".
Copyright owners and their associations clearly have a strong interest in maintaining the highest possible level of copyright protection. On-line service providers and hardware manufacturers both have a strong interest in limiting the scope of copyright protection, although their reasons for this are different. Hardware manufacturers believe that their equipment should be able to circumvent technical protection, provided that what is being done is legal. In addition, they wish to avoid technical protection devices from becoming unlawful since that might require them to adapt their products. On-line service providers wish to avoid the possibility of incurring any liability in the event that their networks are used to carry infringing works.
Copyright owners and their associations have criticised the proposed Directive because of the number and scope of the exceptions. In particular, they oppose the exception that would allow copying for private purposes, on the basis that this right has traditionally been abused. In addition, they argue that the exception in respect of temporary copying would enable on-line service providers to avoid liability, even if they know that their networks are being used to carry works that have been copied illegally and have the technical means to remedy it.
Copyright owners and their associations have also pointed out that the provisions relating to the protection of technical measures is limited. In particular, they point out that these provisions only provide protection against technical devices that provide access to a work, and not against technical devices that permit the unauthorised use of a work. In addition, they are concerned that these provisions do not make it clear whether circumventing devices can legitimately be marketed when they have legitimate purposes. This is a particular cause for concern for copyright owners since they are acutely aware of the problems that tape to tape copiers and devices for making so called back-up copies of computer software have caused in the music and the software industries respectively.
As the Commission recognises, the interests in this are, "divergent and often conflicting". In addition, the stakes are very high. Accordingly, the lobbying looks set to continue well into 1999.