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�This is a
breakthrough in what is a vitally important dossier�,
said Internal Market Commissioner Frits Bolkestein
directly after the Council of Ministers finally reached
political agreement on the Copyright Directive.[1]
A breakthrough, indeed. The initial proposal of a
directive was tabled in December 1997[2]
� light years ago on the Internet time scale. Since
then we�ve seen a package of 58 amendments proposed by
the European Parliament in first reading[3],
an amended Commission proposal[4],
and huge stacks of �non-papers� and other �restricted�
fare discussed in endless secret rounds by the Council
Working Group in Brussels.
But �a vitally
important dossier�? The unprecedented lobbying, the
bloodshed, the vilification, the media propaganda, the
constant hounding of EC and government officials,
certainly suggested it was. But now that the cannons are
silent, the smoke has cleared over the battlefield, the
dead have been buried, and the surviving lobbyists - the
soldiers of fortune of modern-day politics - have moved
on to other theatres of war (the forthcoming WIPO
Audiovisual Performances Treaty, TRIPs II), it�s time
to think again.
Let us recall, that the
original aim of the Directive was twofold. First, to
bring the laws on copyright and related rights in the
European Union in line with the WIPO �Internet
Treaties�, in order to set the stage for joint
ratification of the Treaties by the Member States and
the European Community. Hence the Directive�s
grandiose title: �� on the harmonisation of certain
aspects of copyright and related rights in the
Information Society�. Note, that in Eurocrat
vernacular �Information Society� means the internet.
A less ambitious European legislature might have
achieved this goal in a matter of months, simply by
copying the provisions of the WIPO Treaties into a
directive. It would have taken the Member States another
eighteen months or so to adapt their national laws to
the WIPO standards, and presto, the EC and its
Member States would have been among the first, not the
very last (as it now appears) to ratify the Treaties �
say, in Spring 1999. This, in turn, would have
immediately triggered the Treaties� entry into force
(upon 30 ratifications), by adding 16 ratifications (or
even 29, including EEA countries and aspiring EU
members) to the list. Right holders would have benefited
from the enhanced protection the Treaties provide ever
since.
But no, that would have
been too easy. In a move that reflected its ambition to
set the copyright norms of the world, the European
Commission chose in an early stage not to settle for the
level of protection agreed upon at the WIPO level, but
to raise the standard. If in Geneva, after some fierce
and ugly infighting, no consensus could be reached on a
definition of the reproduction right, the EC would show
the world the Europeans could pull it off. If in Geneva
international lawmakers, in their wisdom, agreed upon a
rather loosely formulated provision obliging countries
to �provide adequate legal protection and effective
legal remedies against the circumvention of effective
technological measures� (article 11 of the WCT), the
EC would carve a precise anti-circumvention rule in
stone.
The second, largely
unrelated goal of the Directive was to harmonise certain
aspects of substantive copyright law across the board -
a departure from the Commission�s previous policy of
piecemeal approximation. This aim was already partly
visible in the Commission�s Green Paper of July 1995[5].
The Green Paper identified a number of key issues (some
�digital�, some �analogue�) presumably requiring
harmonisation: applicable law, exhaustion, the scope of
the economic rights, moral rights, administration of
rights and technical protection. Eventually, less than
half of this legislative agenda was carried over to the
Copyright Directive.
Surprisingly, the
Directive does deal extensively with an issue mentioned
only incidentally in the Green Paper: copyright
exemptions, or �exceptions� as the Commission
prefers to call them (nomen est omen). In view of
the vast differences in purpose, wording and scope of
limitations existing at the national level, many of
which reflect local cultural traditions or business
practices,[6]
one would have expected some more study and reflection
before stirring up this hornet�s nest. In its quest
for creating a �level playing field� for the
European information industries, the Commission
apparently believed the time was ripe to remove these
remaining bastions of national copyright law and policy.
As any less ambitious
person could have foreseen, combining these various
projects into a single legislative package has turned
out be a disastrous mistake. The intense pressure from
the copyright industries and, particularly, from the
United States (where the main right holders of the world
reside), to finish the job as quickly as possible, has
not allowed the Member States and their parliaments, or
even the European Parliament, to adequately reflect upon
the many questions put before them. Thus, an array of
controversial copyright issues was hammered through the
European legislative process in less than three years.
Note that the Database Directive, dealing with only a
single (admittedly complicated) issue, took six years
from start to finish.
The result of this
over-ambitious undertaking has been predictable. The
Directive is a badly drafted, compromise-ridden,
ambiguous piece of legislation. It does not increase �legal
certainty�, a goal repeatedly stated in the Directive�s
Recitals (Recitals 4, 6, 7 and 21), but instead creates
new uncertainties by using vague and in places almost
unintelligible language. What, for example, to make of
article 6.4 (1), a provision that is presumably intended
to reconcile the interests of rights owners employing
technical protection measures with the interests of
users wishing to benefit from copyright limitations?
�Notwithstanding the
legal protection provided for in paragraph 1, in the
absence of voluntary measures by rightholders, including
agreements between rightholders and other parties
concerned, Member States shall take appropriate measures
to ensure that rightholders make available to the
beneficiary of an exception or limitation provided for
in national law in accordance with article 5.2a, 2c, 2d,
2e, 3a, 3b or 3e the means of benefiting from that
exception or limitation, to the extent necessary to
benefit from that exception or limitation, where that
beneficiary has legal access to the protected work or
other subject matter concerned.�
I have read and reread
this text several times, but most of it still eludes me.
What �voluntary measures� does the Directive
envisage: technical protection measures that
automatically respond to eligible users? And what kind
of �agreements between rightholders and other parties�
do the framers of the Directive have in mind: collective
understandings between right holders and users? And, if
such measures or agreements are not in place (within
what timeframe?), which kind of �appropriate measures�
are the Member States expected to take? Does the
Directive call for voluntary deposit of analogue copies,
available for public inspection and reproduction in
national libraries? Or are Member States obliged to
effectively prohibit the use of technological protection
schemes if public access to works is impaired on a
serious scale?
The only legal security
this type of lawmaking creates, is the certainty of
another round of lobbying and infighting at the national
level. Eventually, of course, the European Court of
Justice, already overworked, will have to finish the job
left largely undone by the European legislature.
If the Directive does
not produce much legal certainty, it does even less in
terms of approximation. This is painfully visible in the
pi�ce de r�sistance of the Directive, article 5
on copyright �exceptions�. The Commission�s
original aim of limiting the number of exemptions to a
bare minimum, enumerated in an exhaustive manner, has
backfired dramatically. In the course of the
negotiations in the Council Working Group the Member
States have managed to maintain most, if not all, of the
limitations currently existing in national law. Thus,
article 5 now lists no fewer than 20 possible
exemptions. An exhaustive list indeed!
What makes the
Directive a total failure, in terms of harmonisation, is
that the exemptions allowed under article 5 are
optional, not mandatory (except for 5.1). Member States
are not obliged to implement the entire list, but may
pick and choose at will. It is expected most Member
States will prefer to keep intact their national laws as
much as possible. At best, some countries will add one
or two exemptions from the list, now bearing the EC�s
seal of approval. So much for approximation!
Of course, the whole
idea of drawing up a finite set of limitations was
ill-conceived in the first place. The last thing the
information industry needs in these dynamic times are
rigid rules that are cast in concrete for the years to
come. How can a legislature in his right mind even
contemplate an exhaustive list of limitations, many of
which are drafted in inflexible, technology-specific
language, when the Internet produces new business models
and novel uses almost each day? Note that the �safety
valve� of article 5.3o (�use in certain cases of
minor importance�) is limited to existing exemptions
and analogue uses. Now, thanks to the Directive, if some
unforeseen use that we all agree should be exempted
emerges, we�ll have to wait at least three years, if
not much longer, for the Directive to be amended. I�d
be surprised if national lawmakers or courts were that
patient, or EC law-abiding.
What the Directive does
state in unequivocal terms is less than spectacular. The
broad reproduction right defined in article 2 is
counterbalanced by the (mandatory) temporary copying
exemption of article 5.1. Did we really need a European
lawmaker to tell us that caching and browsing are
allowed without authorisation? I don�t think so; a
common sense interpretation of the reproduction right
would have done the job as well, if not much better.[7]
The right of
communication to the public that Article 3 prescribes is
a good thing, but hardly a novum in the light of
article 8 of the WIPO Treaty. Even less of a surprise is
the Community exhaustion rule of article 4, acquis
communautaire (if still controversial) ever since
the Trademark and Computer Programs Directives.
The Directive leaves
the most important copyright problems of the digital
environment unresolved. It does not deal with several of
the crucial questions raised in the Green Paper:
applicable law, administration of rights, and moral
rights - a staple hot potato on the Brussels menu. In
fact, the Directive does not do much for authors at all.
It is primarily geared towards protecting the rights and
interests of the �main players� in the information
industry (producers, broadcasters and institutional
users), not of the creators that provide the invaluable
�content� that drives the industry. The Directive
fails to protect authors or performers against
publishers and producers imposing standard-form �all
rights� (buy-out) contracts, a dreadful practice that
is rapidly becoming routine in this world of multimedia.
Instead, Article 9 and Recital 30 underscore that the
Directive does not affect the law of contract.
Article 9 also confirms
the Directive�s failure to deal with another hot topic
on the �digital agenda�, the interface between
contract and copyright exemptions. This is particularly
surprising in the light of article 6.4. If technological
measures are prone to undermine essential user freedoms,
the same is true a fortiori for standard-form
licenses. Here, the acquis communautaire of the
Computer Programs and Database Directives, both
providing for mandatory user freedoms, has suddenly
become irrelevant.
Since the Directive has
little or nothing to offer in terms of legal certainty
or harmonisation (or anything else, for that matter),
one must question the solidity of its legal basis in the
EC Treaty. Over the past decade, we have all too easily
accepted the EC�s legislative powers in the field of
intellectual property. Where do these powers originate?
As all previous directives in the field of copyright and
neighbouring rights, the Copyright Directive is based on
articles 47.2, 55 and 95 (ex articles 57.2, 66 and
100A) of the EC Treaty. These are the same legal
foundations that the Tobacco Advertising Directive
(Directive 98/43/EC) was built on. In a case brought
before the European Court of Justice, Germany has
challenged that directive�s legal basis and requested
its annulment, pursuant to article 230 (ex 173) of the
Treaty. On October 5, 2000, the Court delivered its
judgment. The Court notes that the Directive does not
not facilitate the free movement of goods or the freedom
of services, and does not remove distortions to
competition. In sum, the Directive lacks a proper legal
basis, and should be annulled.[8]
The European Court�s
decision raises the intriguing prospect of one or more
disgruntled Member States challenging the validity of
the Copyright Directive.[9]
Wouldn�t that be the perfect way of getting rid of
this monstrosity? I hereby offer my services to any
Member State pro bono.
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