Copyright Directive

European Union directive:
Directive 2001/29/EC
Directive on the harmonisation of certain aspects of copyright and related rights in the information society
Made by	European Parliament & Council
Made under	Arts. 47(2), 55 & 95
Journal reference	L167, 2001-06-22, p. 10 L6, 2002-01-10, p. 70
History
Made	2001-05-22
Came into force	2001-06-22
Implementation date	2002-12-22
Preparative texts
Commission proposal	C108, 1998-04-07, p. 6 C180, 1999-06-25, p. 6
EESC opinion	C407, 1998-12-28, p. 30
EP opinion	C150, 1999-05-28, p. 171
Other legislation
Amends	92/100/EEC, 93/98/EEC
Amended by	?
Status: Current legislation

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 or the InfoSoc Directive), is a directive of the European Union enacted to implement the WIPO Copyright Treaty, to which the European Union is a party.^[1] 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.^[2] In its final form, it included only very narrow exceptions to anti-circumvention measures^[3] 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. ^[4]

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.^[5]

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.^[6]

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[1]
• Finland: 2005 amendment to the Finnish Copyright Act and Penal Code
• France: Loi no. 2006-961 du 1er août 2006 relative au droit d'auteur et aux droits voisins dans la société de l'information, better known as DADVSI
• United Kingdom: Copyright and Related Rights Regulations 2003

See also

• Copyright law of the European Union
• Digital Millennium Copyright Act
• Peer-to-peer

References

1. ^ Council Decision of 16 March 2000 on the approval, on behalf of the European Community, of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (2000/278/EC), OJ no. L089 of 2000-04-11, pp. 6–7.
2. ^ Hugenholtz, Bernt (2000). "Why the Copyright Directive is Unimportant, and Possibly Invalid". European Intellectual Property Review: 501. http://www.ivir.nl/publications/hugenholtz/opinion-EIPR.html. 
3. ^ Vivant, M, "Directive 2001/29/EC on the harmonisation of certain aspects of copyright in the information society and related rights in the information society" in Lodder & Kaspersen (eds.) eDiretcives: Guide to European Law on E-Commerce (Kluwer 2001), p. 95, especially pp. 105-111
4. ^ For that, and contrary views: Ginsburg, Jane C.,Can Copyright Become User-Friendly? Essay Review of Jessica Litman, Digital Copyright (Prometheus Books 2001)(October 6, 2001). Columbia-VLA Journal of Law & Arts, Vol. 25, No. 1, 2001. Available at SSRN: http://ssrn.com/abstract=288240 or DOI: 10.2139/ssrn.288240.
5. ^ Which ended on 22 December 2002. Commission of the European Communities v Kingdom of Spain (Case C-31/04), OJ no. C171 of 9 July 2005, p. 3. Commission of the European Communities v Republic of Finland (Case C-56/04), OJ no. C31 of 5 February 2005, pp. 3–4. Commission of the European Communities v French Republic (Case C-59/04), OJ no. C082 of 2 April 2005, p. 5. Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Case C-88/04), OJ no. C045 of 19 February 2005, p. 11. Commission of the European Communities v Kingdom of Sweden (Case C-91/04), OJ no. C019 of 22 January 2005, p. 8. Commission of the European Communities v Kingdom of Belgium (Case C-143/04), OJ no. C006 of 8 January 2005, p. 20.
6. ^ * Patricia Akester, "Technological Accommodation of Conflicts between Freedom of Expression and DRM: The First Empirical Assessment" available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1469412 (unveiling, in the context of the Copyright/Information Society Directive, through empirical lines of enquiry, (1) whether certain acts which are permitted by law are being adversely affected by the use of DRM and (2) whether technology can accommodate conflicts between freedom of expression and DRM - linking, thus, policy conclusions to empirical findings).

External links

• Text of the Directive (as corrected)
• Overview of the Directive in Member States
• Guide from the Foundation for Information Policy Research
• EUCD - Copyright extensions that harm by FSFE
• EUCD materials from the Harvard Digital Media Project
• EUCD.info