On April 9, the European Council approved the directive establishing EU-wide rules on copyright and related rights in the information society, after over three years' negotiation between the various EU institutions involved. The text, as adopted, includes all nine of the compromise amendments passed by the European Parliament at its February 2001 plenary session.
Adoption and implementation of the directive will enable the EU and its Member States to ratify the WIPO Copyright Treaty on the protection of authors and the WIPO Phonograms and Performances Treaty on the protection of performers and phonogram producers, which were adopted by WIPO in December 1996.
The directive aims both to harmonise the rights of reproduction, distribution, communication to the public, the legal protection of anti-copying devices and rights management systems, and to bring EU copyright law into the digital age. Particular features of the directive include a mandatory exception for technical copies on the internet for network operators in certain circumstances, an exhaustive, optional list of exceptions to copyright which includes private copying, the introduction of the concept of fair compensation for rightholders and finally a mechanism to secure the benefit for users for certain exceptions where anti-copying devices are in place. However, concern has already been expressed that the directive is already out of date in the light of developments in digital media during the directive's passage.
The provision which received some of the greatest attention in the final stages of the directive's passage concened an exception for private copying. The final debate on the directive following, as it did, hot on the heels of the Napster Appeal ruling in the US meant that European Parliament members were well aware of the issues raised in that case. The final form of the exception, which can be applied at the option of individual EU Member States in relation to both digital and non-digital reproduction, allows reproductions "made by a natural person for private use and for ends that are neither directly or indirectly commercial, on condition that rightsholders receive fair and reasonable compensation...".
This wording leaves it open to one natural person to copy for the private use of another. How Member States' courts and the European Court of Justice interpret the caveat in the words "ends that are neither deirectly or indirectly commercial" will be most interesting. It will be up to Member States to decide what forms this compensation may take, leaving open some form other than blank tape and R-CD levies to which the UK government, for one, has long been opposed.
Member States will be entitled to retain existing exceptions so far as they relate to non-digital use but after implementation only those exceptions expressly set out in the directive may be applied to digital uses of copyright works.
The directive is expected to be published in the Official Journal shortly. Member States will then have 18 months to implement it in their national law. The UK government has welcomed the adoption of the final amandments to the Directive which it said will give flexibility to allow the UK to maintain its existing balance in respect of copyright laws and strengthen protection for rights holders especially in relation to digital copying.
The number of optional exceptions to the reproduction, communication and distribution rights provided for in the directive are likely to result in a degree of continuing dis-harmony in digital copyright matters throughout the EU. Lovells will be producing a Client Note on the likley effects of the directive once key Member State governments have put forward draft implementing legislation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
