Rapporteur: Roberto Barzanti
The European Publishers Council (EPC) represents the leading newspaper and magazine publishers with major interests in Europe. The European Publishers Council welcomes the Commission’s initiative in presenting this Proposal. The Directive will be a vital component in the emerging legal framework for the Information Society in the EU.
EPC supports the substance of all of the Directive’s provisions with the exception of certain elements of Articles 1, 5 and 6. EPC has taken a pragmatic approach to the Directive, recognising the need for compromise by all parties in order to achieve the passage of this important Directive into Community law.
EPC recognises that Articles 5 and 6 of the Directive reflect the Commission’s view of an appropriate balance or compromise between the interests and concerns of rightsholders on the one hand and those of users, manufacturers and infrastructure providers on the other. However, EPC considers that the Articles 5.1, 5. 2 (b) and 6 in their present form do not represent a fair balance between the various parties. To the contrary, they pose an unacceptable threat to rightsholders.
EPC’s proposals for revisions to those Articles are set out below. EPC therefore urges the European Parliament to accept these amendments.
In addition, EPC has comments on certain other Articles and our principal concerns are also set out below.
We understand that the effect of the first three words in Article 1.2("Unless otherwise provided") is that if the new Directive contradicts any existing Directives, the latter will prevail unless this new Copyright
Directive expressly changes them. If there is no contradiction, then existing provisions will co-exist.
We consider that this will create an unsatisfactory position. For example, there would be at least two different anti-circumvention measures. For computer programs, the provisions of Article 7.1(c) of the Software Directive would apply. For other works, the provisions of Article 6 of the proposed new Copyright Directive will prevail.
Accordingly, EPC considers that Article 1.2 of this Directive needs to be re-examined.
EPC welcomes the harmonisation of the distribution right. Any attempt to replace the provisions of Article 4.2 (which provide for Community-wide exhaustion) with international exhaustion should be firmly resisted.
This Article contains a fundamental flaw – it omits the vital qualification that the exception should only apply to temporary copies which are authorised or permitted by law. The linking of temporary copies to those which are "integral to a technological process made for the sole purpose of enabling a use of a work or other subject matter and have no independent economic significance" is insufficient from the viewpoint of rightsholders.
Recital (23) states that, subject to those conditions, this exception should cover acts of caching or browsing. It is quite possible to envisage a scenario in which individual acts of temporary copying by caching on a server might each qualify for exception under Article 5.1 but which, taken as a whole, may nonetheless material prejudice rightsholders. Whilst those supporting Article 5.1 may argue that such copies may not meet the Article 5.1 test (e.g. because such acts do have "…independent economic significance"), this example exposes a serious risk of there being a gaping hole in rightsholders’ protection under the reproduction right. In view of the fact that the reproduction right is the core right in both the analogue and digital worlds,this is simply not acceptable to rightsholders. Whilst Article 5.4 provides additional comfort to rightsholders’, it is vital that the exception in Article 5.1 is appropriately qualified by reference to authorised use.
In addition, EPC considers that the word "transient" is a more appropriate word than " temporary " to describe the kinds of ephemeral acts of reproduction which are the subject matter of Article 5.1. This is
because the word "temporary" could include reproductions of a semi-permanent nature.
Furthermore, EPC considers that the word "independent" adds nothing to the "economic significance " test in Article 5.1 and should therefore be deleted.
Proposal: To redraft Article 5.1 as follows: (the underlined wording is the amended wording proposed by EPC and the arrow sign denotes the proposed deletion):
"Transient acts of reproduction referred to in Article 2 which are an integral part of, and are inseparable from, a technological process for the sole purpose of enabling use to be made of a work or other subject matter that is authorised or otherwise permitted by law, and having no^ economic significance, shall be exempted from the right set out in Article 2.
Article 5.2 (b)
EPC does not agree that Member States should have the option of providing for a limitation in respect of reproductions on digital media for private, non-commercial use.
EPC endorses the comment made on this point in the Explanatory Memorandum1 which accompanies the Directive. Digital technology will (not “may” as stated in the Memorandum) allow “the effective control of private copying and the replacement of levy schemes by individual licensing solutions….”
In view of the way in which content in digital form is able to move across global networks, EPC considers that the issue of digital private copying has to be tackled at a Community level on a harmonised basis. EPC does not agree with the Commission when it states that “…it appears premature at this stage to provide for a more harmonised solution with respect to digital private copying”. On the contrary, EPC considers that now is the appropriate time to tackle the issue and to recognise that an exception for digital private copying is no longer appropriate in the emerging networked digital Information Society.
Proposal: To add the words “other than any form of digital recording media” at the end of the first line of Article 5. 2 (b).
EPC members may be prepared to concede that this limitation will apply in the digital environment. If so, it should be clearly understood by Member States that, in line with the ‘three-step’ test and as stated in paragraph 7 (page 31) of the Directive, they cannot exempt all acts of reproduction by libraries or other public establishments. As stated in that paragraph: Member States will have to identify certain special cases of reproduction, such as the copying of works which are no longer available on the market.”EPC members will argue strongly in favour of remuneration for any such permitted acts of reproduction.
Proposal: No drafting changes are proposed.
EPC considers that the exclusion of ‘dual function’ equipment or services from the scope of this provision, which results from the inclusion of the words “….have only limited commercially significant purpose or use other than to circumvent and…” creates a large loophole which would be used by those engaged in circumvention activities to evade
If the exclusion of "dual function" equipment is retained, Article 6.1 should specifically and separately apply to products and services which are promoted, advertised or marketed for circumvention purposes.
Also the activities included by way of example in line 2 of Article 6.1 should be expanded.
Proposal: EPC proposes that Article 6.1 should be substantially redrafted as follows:
"Member States shall provide adequate legal protection against activities (including the manufacture, distribution, sale, leasing, rental or lending of devices, products and components, or the performance of services) which are concerned with the circumvention of any effective technological measure designed to protect any copyright or any rights related to copyright as provided by law or the sui generis right provided for in Chapter II of Directive 96/9/EC/ without the authority of the rightsholder or applicable law and:
(a) which have only limited commercially significant purpose or use other than to circumvent;
which are promoted, advertised or marketed for the purpose of circumvention; or
(c) which are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention."
EPC considers that the proposed definition of "effective" leaves a number of gaps in protection for technical measures which are not conditional access systems. Accordingly, EPC proposes redrafting as follows:
Proposal: EPC proposed that Article 6.2 should be substantially redrafted as follows:
"As used in this Article, the expression "effective technological measure" means any device, product or component incorporated into a process, device or product that in the ordinary course of its operation controls access to a work or otherwise prevents or inhibits the infringement of any copyright or any rights related to copyright as provided by law or the suit generis right provided for in Chapter II of Directive 96/9/EC."
If Members of the European Parliament would like any further information regarding the proposals contained in this paper, please contact the Executive Director of the European Publishers Council, Mrs. Angela Mills (direct telephone number: +44 1865 310 732; direct fax: +44 1865 310 739).
European Publishers Council
9 April 1998
European Publishers Council
Chairman: Sir Frank Rogers
Executive Director: Angela C Mills
Telephone: +44 (0)1865 310 732
Facsimile: +44 (0)1865 310 739
Press Enquiries: Heidi Lambert
Telephone/facsimile: +44 (0)1245 476 265