Proposal for a Directive on Copyright and Related Rights in the Information Society
COM(97)628

http://europa.eu.int/comm/dg15/en/intprop/intprop/1100.htm

Response from The Library Association

V NECESSARY AMENDMENTS TO THE PROPOSED DIRECTIVE

The LA fully supports the amendments as outlined below which are being proposed by our European counterpart, the European Bureau of Library and Information and Documentation Associations (EBLIDA). We also share these concerns with other organisations: BEUC on behalf of the consumers, EACEM on behalf of the electronics manufacturers industry and EDF on behalf of people with disabilities, and supports their efforts to include fair practices and consumer use provisions in the proposed Directive.

Recital (21)

1. Original text of proposed Directive:
   Whereas a fair balance of rights and interests between the different categories of rights holders, as well as between the different categories of rights holders and users of protected subject matter must be safeguarded; [...]
2. Proposed Revision of EBLIDA:
   Whereas a fair balance of rights and interests between the different categories of rights holders, as well as between the different categories of rights holders and users of protected subject matter must be safeguarded to ensure the balance between rights holders' protection and other important values in society, such as the interests of education, research and the need of the general public for access to information.
3. Justification:
   During the WIPO Diplomatic Conference 1996, the Preamble of the WIPO Copyright Treaty was amended in such a way that it now specifically reflects the prominent position deserved by these "other important values in society", as the new copyright problems of the digital environment are not merely the problems of the copyright industry but of society as a whole. This need for a balance must be put more to the fore. In recognition of that, the WIPO Treaty explicitly mentions "education", "research" and "access to information".

Recital (22)

1. Original text of proposed Directive:
   Whereas this Directive provides for an exhaustive enumeration of exceptions to the reproduction right and the right of communication to the public; whereas some exceptions only apply to the reproduction right, where appropriate; whereas the list takes due account of the different legal traditions in Member states, while, at the same time, aiming to ensure a functioning Internal Market; whereas it is desirable that Member States should arrive at a coherent application of these exceptions, which will be assessed when reviewing implementing legislation in the future;
2. Proposed Revision of EBLIDA:
   Whereas this Directive provides for a minimum mandatory list of exceptions to the reproduction right and the right of communication to the public; whereas some exceptions only apply to the reproduction right, where appropriate; whereas the list takes due account of the different legal traditions in Member States by offering them the option of including other exceptions to copyright which are traditionally authorised under national law, while, at the same time, aiming to ensure a functioning Internal Market; whereas it is desirable that Member States should arrive at a coherent application of these exceptions, which will be assessed when reviewing implementing legislation in the future;
3. Justification:
   Real harmonisation can only happen if the most important exceptions are mandatory, just as are the existing and very broad new rights, to keep the balance in copyright. EBLIDA therefore asks for a minimum mandatory list of exceptions and to leave room to the Member States for additional ones to take specific national conditions into account (see proposed new Article 5.2 (i)).

Article 5. Exceptions to the restricted acts set out in Article 2 and 3

Article 5.2 Exceptions to the reproduction right

1. Original text of proposed Directive:
   Member States may provide for limitations to the exclusive right of reproduction provided for in Article 2 in the following cases:
2. Proposed Revision of EBLIDA:
   Member States shall provide for limitations to the exclusive right of reproduction provided for in Article 2 in the following cases:
3. Justification:
   The proposed Directive leaves all exceptions that are listed in Article 5.2. and Article 5.3. purely as options to the Member States (recital 24). Therefore they would not only be entirely unharmonised but also without any guarantee that they will be implemented to preserve a fair balance in copyright. Real harmonisation can only happen if the most important exceptions are as mandatory as are the existing and the very broad new rights in order to keep the balance in copyright. EBLIDA therefore asks for a minimum mandatory list of exceptions and to leave room to the Member States for additional ones to take national special conditions into account (see proposed new Article 5.2(I) below).

Article 5.2(c)

1. Original text of proposed Directive:
   [Member States may provide for limitations to the exclusive right of reproduction provided for in Article 2 in the following cases:]
   in respect of specific acts of reproduction made by establishments accessible to the public, which are not for direct or indirect economic or commercial advantage;
2. Proposed Revision of EBLIDA:
   [Member States shall provide for limitations to the exclusive right of reproduction provided for in Article 2 in the following cases:]
   in respect of specific acts of reproduction made in or by libraries, archival institutions or educational institutions designated by the Member States, which are not primarily for direct or indirect economic or commercial advantage, including reproduction for the purpose of archiving and preservation.
3. Justification:
   The revision is less restrictive and includes all kinds of libraries and archival institutions established with public funds to serve the needs of the general public. Libraries and archival institutions might need to impose some sort of charge on their users to meet the costs that occur in connection with specific acts of reproduction. This must be possible without infringing the reproduction right. An explicit exemption for archiving and preservation is needed at Community level to safeguard this fundamental provision for the access of information by society and for preservation of our cultural heritage.

Article 5.2(d) new

1. New text by EBLIDA
   [Member States shall provide for limitations to the exclusive right of reproduction provided for in Article 2 in the following cases:]
   use for education, learning, research and for private purposes as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved;
2. Justification
   The proposed listing in Article 5.3. of the Directive that combines both a reference to the reproduction right and to the communication to the public right, is ambiguous and might lead to confusing and restrictive interpretations. EBLIDA urges a listing of mandatory limitations to both rights in two separate articles. Already included in Article 5.2(d) and 5.2(e) are amendments proposed by EBLIDA.

   The suggested amendments by EBLIDA are based on the Agreed statement concerning Article 1 (4) of the WIPO Copyright Treaty 1996: "The reproduction right, as set out in Article 9 of the Berne Convention, and the exceptions permitted thereunder, fully apply in the digital environment, in particular to the use of works in digital form."[...]

   Existing national copyright legislation includes the exemption of copying for "education and research purposes". The Berne Convention (Paris Text of 1971) states in Article 10 (2): "It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilisation, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilisation is compatible with fair practice." The reduction of this provision to the copying "for the sole purpose of illustration for teaching or scientific research" is too restrictive and, in our view, a wrong interpretation.

   The texts of the national implementations of the EU Database Directive 1996 also suggest a different interpretation of this notion in the Member States. One example is Germany where the "illustration for teaching or scientific research" of the EU Database Directive is phrased as follows in the national text: "for the purposes of personal scientific use, if and to the extent that the copying for this purpose is necessary and the scientific use does not serve commercial purposes; for personal use in teaching, in non-commercial institutions of education and further education and in vocational training in a quantity required for one school class". EBLIDA's revision follows in parts the wording of recital 24.

   It is of crucial importance for the future of library services to have copying (reproduction right) for private purposes covered by Article 5.2(d).

Article 5.2(e) new

1. New text by EBLIDA
   [Member States shall provide for limitations to the exclusive right of reproduction provided for in Article 2 in the following cases:]
   for uses for the benefit of persons with a physical, mental or learning disability, which are of a non-commercial nature;
2. Justification:
   People with disabilities must be considered on an equal non-discriminatory position. Exceptions must ensure that the transformation from one platform to another (e.g. printed text into Braille) for the sole purpose of enabling the use of a work is considered a lawful act.
3. Justification for Article 5.2(e) new - 5.2(h) new
   The proposed listing in Article 5.3. of the Directive that combines both a reference to the reproduction right and to the communication to the public right, is ambiguous and might lead to confusing and restrictive interpretations. EBLIDA urges a listing of mandatory limitations to both rights in two separate articles.

Article 5.2(f) new

[Member States shall provide for limitations to the exclusive right of reproduction provided for in Article 2 in the following cases:]

use of excerpts in connection with the reporting of current events, as long as the source is indicated, and to the extent justified by the purpose;

Article 5.2(g) new

[Member States shall provide for limitations to the exclusive right of reproduction provided for in Article 2 in the following cases:]

quotations for purposes such as criticism or review, provided that they relate to a work or other subject matter which has already been lawfully made available to the public, that the source is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose;

Article 5.2.(h) new

[Member States shall provide for limitations to the exclusive right of reproduction provided for in Article 2 in the following cases:]

use for the purpose of public security or for the purpose of the proper performance of an administrative or judicial purpose.

Article 5.2(i) new

1. New text by EBLIDA:
   [Member States shall provide for limitations to the exclusive right of reproduction provided for in Article 2 in the following cases:]
   where other exceptions to reproduction right which are traditionally authorised under national law are involved, without prejudice to points (a) - (h).
2. Justification:
   This new text is based on the Agreed statement concerning Article 10 of WIPO Copyright Treaty: "It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment. It is also understood that Article 10 (2) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention. "

   The phrasing of Article 5.2(i) is based on Article 6.2. (d) of the Database Directive.

Article 5.3. Exceptions to the Communication to the public right

1. Original text of proposed Directive:
   Member States may provide for limitations to the rights referred to in Article 2 and 3 in the following cases:
2. Proposed Revision of EBLIDA:
   Member States shall provide for limitations to the rights referred to in Article 3 in the following cases:
3. Justification:
   The proposed listing in article 5.3. that combines both a reference to the reproduction right and to the communication to the public right, is ambiguous and might lead to confusing interpretations. EBLIDA urges a listing of mandatory limitations to both rights in two separate articles. As 5.2. should contain a complete listing to the reproduction right, Article 5.3. only refers to the communication to the public right.

   The proposed Directive leaves all exceptions that are listed in Article 5.2. and Article 5.3. as pure options to the Member States (recital 24). Therefore they would not only be entirely unharmonised but also without any guarantee that they will be implemented to preserve a fair balance in copyright. Real harmonisation can only happen if the most important exceptions are mandatory as are the existing and the very broad new rights to keep the balance in copyright. EBLIDA therefore asks for a minimum mandatory list of exceptions.

Article 5.3(a)

1. Original text of proposed Directive:
   [Member States may provide for limitations to the rights referred to in Article 2 and 3 in the following cases:]
   use for the sole purpose of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved
2. Proposed Revision of EBLIDA:
   [Member States shall provide for limitations to the rights referred to in Article 3 in the following cases:]
   use for education, learning, research and for private purposes as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved
3. Justification:
   This revision is based on the Agreed statement concerning Article 10 of WIPO Copyright Treaty: "It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment. It is also understood that Article 10 (2) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention. "

   In addition, the justification of Article 5.2 (d) also applies here.

Article 5.3(b):

1. Original text of proposed Directive:
   [Member States may provide for limitations to the rights referred to in Article 2 and 3 in the following cases:]
   for uses for the benefit of visually-impaired or hearing-impaired persons, which are directly related to the disability and of a non-commercial nature and to the extent required by the specific disability
2. Proposed Revision of EBLIDA:
   [Member States shall provide for limitations to the rights referred to in Article 3 in the following cases:]
   for uses for the benefit of persons with a physical, mental or learning disability, which are of non-commercial nature.
3. Justification:
   The provision does not extend to people with other disabilities such as learning or physical problems. People with disabilities must be considered on an equal non-discriminatory position. Exceptions must ensure that the transformation from one platform to another (e.g. printed text into Braille) for the sole purpose of enabling the use of a work is considered a lawful act.

   The rest of the proposed Article 5.3. shall apply without changes.

Article 5.5. new

1. New text by EBLIDA:
   Any contractual provision contrary to Article 5 shall be null and void.
2. Justification:
   To ensure that contracts or licences can not override copyright exceptions, this article, which is in line with Art. 15 of the Database Directive, must be additionally included.

Article 6 Obligations concerning technological measures

1. Original text of proposed Directive:
   
   1. Member States shall provide adequate legal protection against any activities, including the manufacture or distribution of devices or the performance of services, which have only limited commercially significant purpose or use other than circumvention, and which the person concerned carries out in the knowledge, or with reasonable grounds to know, that they will enable or facilitate without authority the circumvention of any effective technological measures designed to protect any copyright or any rights related to copyright as provided by law or the sui generis right provided for in Chapter III of European Parliament and Council Directive 96/9/EC.
   2. The expression "technological measures" as used in this Article, means any device, product or component incorporated into a process, device or product designed to prevent or inhibit the infringement of any copyright or any rights related to copyrights as provided by law or the sui generis right provided for in Chapter III of European Parliament and Council Directive 96/9/EC. Technological measures shall only be deemed "effective" where the work or other subject matter is rendered accessible to the user only through application off an access code or process, including by decryption, descrambling or other transformation of the work or other subject matter, with the authority of the rightholders;
2. Proposed Revision of EBLIDA:
   Member States shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by rights holders in connection with the exercise of their rights under the WIPO Copyright Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorised by the rights holders concerned or permitted by law.
3. Justification:
   This revision is almost identical with Article 11 of WIPO Copyright Treaty 1996. It should only be unlawful to create a device with the clear intention to facilitate circumvention for purposes of infringement. The same applies to individuals, who should only be punished if they intentionally circumvent copyright protection systems for purposes of infringement. The circumvention of technical measures should be allowed for activities authorised by the copyright owners or permitted by law, as well as the production and marketing of devices designed to circumvent technical measures to facilitate the making of non-infringing copies.With regard to copyright protection systems, the respect of privacy is a very important issue. Viewing information on the Internet is the digital equivalent of reading a book. Traditional copyright does not protect against acts of consumption or reception of information. Reading a book involves basic rights of privacy (Article 8 European Convention of Human Rights) and freedom of reception (Article 10 ECHR) and are therefore not considered restricted acts. The same must be true for the digital environment. Copyright must not be extended to cover acts which amount to mere consumption of works.

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