Transcript Document

After the InfoSoc Directive…
the Long March to ‘harmonisation’
Barbara Stratton
Senior Copyright Adviser
CILIP: Chartered Institute of Library and Information Professionals
Secretary, LACA: the Libraries and Archives Copyright Alliance, UK
EBLIDA-CEG seminar, Vilnius 26th October 2006
Meet the Commissioners
DG Internal Market and Services
Meet the Commissioners
DG Information Society and Media
MARKT.D Knowledge-based economy
Director Jacqueline Minor
Adviser Luis Gonzalez Vaque
Markt.D.1 Copyright and Knowledge-based Economy
Head of Unit Tilman Lueder
Policy Officers
Mr D. Baervoets
Mr L. Majer
Ms J. Jug
Mr Leonardo Cervera Navas
Ms V. Guennelon
Ms D. Muffat-jeandet
Ms Julie Samnadda
Mr J. Van Der Veer
Ms Barbara Norcross-Amilhat
http://europa.eu.int/comm/dgs/internal_market/index_en.htm
DG Internal Market and Services
D.1 Copyright and Knowledge-based Economy
Tilman Lueder, Head of Unit
DG Internal Market and Services
Tilman Lueder said last year
13th Annual Conference on IP Law & Policy, Fordham University, New
York, April 2005
“the department is taking the knowledge economy as its principle focus
and aiming to make services, including services supplied across EU
borders, the main driver for economic growth and future prosperity.”
“All of our initiatives will be subjected to a rigorous cost/benefit
analysis…all Commission proposals will face an Impact Assessment
(“IA”) weighing the cost to business before they are sent to the EU
Parliament and the Council of ministers for approval. No initiative that
fails this screening test will fly: The gains must exceed the cost of
compliance. Our aim is to increase the efficiency of commercial
exploitation of copyright - not to introduce yet another layer of red tape.”
Copyright at the crossroads?
Tilman also said…
Single Market News 37, May 2005
http://europa.eu.int/comm/internal_market/smn/smn37/docs/special-feature_en.pdf
“In the past we have been concerned with substantive aspects of
copyright, such as the scope of these rights, the introduction of related
rights and the length of protection. We’ve done much to harmonise these
rules across Europe but we have found that this has not brought about
efficiency gains in how copyright is commercially exploited.”
“Harmonisation at the rule-making level cannot overcome the fact that
copyright is still administered on a national basis – and this has precluded
in some cases the economies of scale usually associated with the internal
market."
"We also need to foster legitimate online business models and aim to avoid
traditional copyright remuneration models, such as levies on blank
cassettes, CDs or even computer disks becoming an obstacle to the 'takeup' of legitimate digital remuneration models."
Copyright at the crossroads?
 Agenda is to recast copyright to make it ‘fit’ for the
online environment
http://europa.eu.int/comm/internal_market/copyright/docs/lev
y_reform/roadmap_82_83_en.pdf
 Is seeking to take an evidence-based approach to
the evaluation of the Acquis and specific Directives.
DG Markt D work programme
 2004 Consultation attracted 80 responses
 The problem perceived by the Commission Rights managed by national collecting societies could lead to
content being subject to clearance 25 times.
National collecting societies a 19th century model inappropriate for
internet age.
No cross-border online licences available.
Librarians told the Commission to address the issues of lack of
transparency, poor management, and failures in royalty distribution
 Commission Recommendation on Collective Cross-border Management
of Copyright and Related Rights for Legitimate Online Music Services
18.10.2005
 Allows rightholders the option of authorising one single collecting
society to license and monitor all the different uses made of their
works across the entire EU.
 How are users going to know where to clear online music rights?
DG Markt D work programme
Collective Rights Management
 November 2004: ECJ judgments on racing fixtures cases
 Scope of sui generis protection does not include creation of the
underlying data
 Sui generis = “substantial investment”
 October 2005: Creative Economy Conference, London –
 Commission indicates withdrawal of the Directive is a serious
option – “Shock! Horror!” from rightholders.
 December 2005: Commission’s 1st Evaluation of the
Directive. Consultation closed 31st March 2006.
 First evidence-based, rather than faith-based evaluation of an IPR.
 Report acknowledges that granting increased rights to db makers
had not achieved the policy aims of increasing EU competitiveness
against the US. US db industry dominant without the protection.
 Four Options: withdraw Directive, repeal sui generis right, amend
sui generis right, do nothing.
DG Markt D work programme
Review of Database Directive 1996
 Libraries are producers of non-original dbs protected only
by sui generis right
 Problems because of different traditions regarding
‘originality’
 UK & Ireland - ‘sweat of the brow’; rest of Europe - ‘intellectual
creativity’
 Currently EU ‘originality’ test for dbs is only ‘intellectual creativity’
 Impact if Directive withdrawn
 In UK & Ireland all dbs would revert to copyright protection as
compilations, but
 In rest of Europe there would be no protection for non-original dbs
 Cross-border collaborative projects could be affected –
e.g.. European Digital Library – harmonisation needed
DG Markt D work programme
Review of Database Directive 1996
Library lobby
 For amendment of sui generis right to address its
complexities
 To amend the the renewable 15 year term of protection
to eliminate perpetual protection.
 Risk of differing opinions along national lines re
withdrawal of the Directive or repeal of sui generis right
 Stakeholder consultation revealed a general lack
of enthusiasm for the Directive’s withdrawal
 Result = no action by the Commission
DG Markt D work programme
Review of Database Directive 1996
 10+ years of the copyright Acquis = 11 Directives
 A fast moving technical environment …time to assess…codification
of Community law
 October 2004: Consultation on the Acquis Communautaire in
copyright & related rights - 139 responses
 Update the legislative framework in the field of copyright and related
rights - increase its consistency and simplify the provisions
 7 December 2005: EC tender for a study into the Acquis
 Study on the Acquis to include
 Reform of copyright levies on equipment & media used for private
copying (NB no levy system in UK & Ireland). Due late 2006
 Review of the Term Directive 1993
 In particular, term for sound recordings - in the face of industry pressure
to extend the term for sound recordings and performances in them.
 DG Internal Market is to provide an impact assessment at the end 2006.
 Review of ownership of co-written and musical works
DG Markt D work programme
Review of Acquis Communautaire 1
Review of the Information Society Directive 2001/29/EC
also intended
Originally was to look only at the Directive’s implementation.
Now to be an evaluation review to establish whether or not has it
achieved its policy objectives. This is an important change.
Review will include
The contribution of copyright to knowledge economy
The role of consumers
Difficulties that arise for all the stakeholders
The Member States’ transposition of the exceptions & limitations into
national legislation
A look at technical protection measures (TPMs)
DG Markt D work programme
Review of Acquis Communautaire 2
PLR (Public Lending Right)
 Spain, Ireland, Portugal, Italy, Luxembourg being taken
before the ECJ by the Commission for “incorrect
application of the public lending right”
 Basically these countries had exempted public libraries
from PLR. Ireland is in the (slow) process of compliance
by introducing a PLR scheme for public libraries.
InfoSoc Directive implementation
 France, Finland, Spain and the Czech Republic for
“non-implementation”…although the French have been
in the process for some time and have now
implemented in 2006 amid much controversy
DG Markt D work programme
Current infringement proceedings
 Amended Proposal for a Directive … on Criminal Measures Aimed at
Ensuring the Enforcement of Intellectual Property Rights (COM(2006)
168 final 2005/0127 (COD) 26.4.2006) http://eurlex.europa.eu/LexUriServ/site/en/com/2006/com2006_0168en01.pdf
Article 1 “…These measures shall apply to intellectual property rights
provided for in Community legislation and/or national legislation in the
Member States.”
Article 3 “Member States shall ensure that all intentional infringements
of an intellectual property right on a commercial scale, and attempting,
aiding or abetting and inciting such infringements, are treated as
criminal offences.
 Scope of criminal sanctions for infringement extended beyond that of
TRIPS Art. 61 to all IPRs covered by Community law
 No financial benefit or profit required – ‘commercial scale’ is much wider
and easier to achieve e.g. rightholders claim individual P2P file sharing is
on a ‘commercial scale’ .
 Could librarians risk accusation of aiding and abetting? Unlikely if
unintentional, but Member States might take different approaches.
DG Justice & Home Affairs
IPRED 2
European Digital Library (EDL)
 Flagship project within Commission’s i2010 strategy to boost digital
economy
 Aims at making Europe's diverse cultural and scientific heritage
(books, films, maps, photographs, music, etc.) easier and more
interesting to use online for work, leisure and/or study.
 Builds on Europe's rich heritage combining multicultural and
multilingual environments with technological advances and new
business models.
EDL High Level Group established February 2006
 Brings together major stakeholders from industry and cultural
institutions. Includes a number of national librarians and archivists.
 First tasks are to tackle the barriers posed by copyright and
encourage public-private collaboration for digitisation.
DG Information Society
i2010 Digital Libraries 1
 Commission Recommendation to Member States
(24/08/06)
 Digitisation of content – large-scale, plus using already digitised
content
 Online accessibility
 By seeking concrete solutions on copyright issues, e.g. mechanisms to
deal with "orphan" works and works that are out of print.
 Digital Preservation
 Establish national strategies and plans for the long-term preservation of,
and access to, digital material.
 Adapt legislation, where necessary
 To allow multiple copying and migration for preservation purposes
 To facilitate web-preservation and deposit of digital material for
preservation purposes.
http://europa.eu.int/information_society/activities/digital_libraries/index_en.ht
m
DG Information Society
i2010 Digital Libraries 2
Public Consultation on Content Online
(Closed 13/10/06)
 On ‘ways to stimulate the growth of a true EU single
market for online cross-border delivery of digital content,
such as films, music and games’.
 Addressed broader issues such as intellectual property
rights management in the digital age.
 The creation of an open and competitive single market for
online content is one of the key aims of the i2010 Initiative.
http://ec.europa.eu/comm/avpolicy/other_actions/content_online/index_en.ht
m#consultation#consultation
Audiovisual & Media Policies
Content Online 1
EBLIDA Response to Content Online
 ‘Bottom line’ was
 All the available exceptions to copyright should be made
to operate in all Member States
 The absolute legal protection afforded to technological
protection measures should be mitigated so that they do
not necessarily obstruct the limited copying permitted by
law through the exceptions
 It should be established clearly in law that any contractual
term purporting to nullify a statutory exception is void.
Audiovisual & Media Policies
Content Online 2
 On Digital Rights Management Systems, February 2003
 On the Proposal for a Directive….on measures and procedures to ensure
the enforcement of intellectual property rights (05.12.2003) (aka IPRED
1)
 On the Directive 2004/48/EC …on the enforcement of intellectual
property right 29.04.2004 (aka IPRED 1)
 on the infringement procedures over Public Lending Right, March 2004
 (see also Report from the Commission…on the public lending right in
the European Union (16.09.2002))
 DG Internal Market’s consultation…on the Management of Copyright and
Related Rights in the Internal Market, June 2004
 DG Internal Market’s consultation on the Final Report of the High Level
Group on Digital Rights Management (March-July 2004), September
2004
EBLIDA Responses/Policy Positions
2003-2005
 DG Internal Market’s Staff Working Paper…Review of the EC Legal
Framework in the Field of Copyright and Related Rights (19.07.2004),
October 2004
 The Commission Working Party 29 Working Document 104 on Data
Protection Issues Related to Intellectual Property Rights, March 2005
 DG Internal Market’s Staff Working Document Study on a Community
Initiative on the Cross-border Collective Management of Copyright, July
2005 (this output from the 2004 consultation on the Management of
Copyright was entirely about online music)
 Resulted in the Commission Recommendation on Collective Crossborder Management of Copyright and Related Rights for Legitimate
Online Music Services 18.10.2005
EBLIDA Responses/Policy Positions
2003-2005
 To DG Information Society’s “Questions for Online Consultation”, annex
to the Communication from the Commission i2010 Digital Libraries,
January 2006
 To DG Internal Market’s Working Paper on a First Evaluation of
Directive 96/9/EC on the Legal Protection of Databases, March 2006
 On DG Research’s Study on the economic and technical evolution of
the scientific publication market in Europe, May 2006
 To the Commission's White Paper on a Communication Policy, May
2006
 To the DG Internal Market’s Stakeholder Consultation on Copyright
Levies in a Converging World, July 2006
 On Chapters 1 & 2 of the Commission's Green Paper on the European
Transparency Initiative, August 2006
 To the Commission's (Audiovisual & Media Policies) Public
Consultation on Content Online in the Single Market October 2006
EBLIDA Responses/Policy Positions
2006
 The Review of the Acquis and the European Digital Library
present great opportunities for us to influence for change
 The EC will experience first hand from the Digital Library project the
full range of the problems libraries and archives have been coping
with in copyright and licensing and the digital environment – from
TPMs to orphan works.
 DG Internal Market and Services is advising DG Information
Society on the Digital Libraries project.
 Will the InfoSoc ‘freaks’ win out against the Internal Market
‘ayatollahs’?
 At the same time there are pressures to rebalance copyright and
guarantee Access to Knowledge within the WIPO Development
Agenda process
WIPO SCCR and PCDA meeting pages www.wipo.int
A2K list archives http://lists.essential.org/pipermail/a2k/
Advocacy and lobbying 1
Libraries and archives
 Should seek recognition by everyone as ‘trusted
intermediaries’ in the digital environment
 We need to marshall evidence to support our case - faith
is not enough
 Need to lobby effectively at home through associations,
alliances and coalitions of like-minded civil society
organisations e.g. libraries, archives, consumers,
associations for blind people, dyslexics and others with
learning difficulties
 And lobby in Europe as members of EBLIDA
 Otherwise
 Copyright ‘fit’ for the online environment will not benefit
civil society, nor the creative and knowledge economies
Advocacy and lobbying 2
 Adelphi Charter http://www.adelphicharter.org/
 American Library Association OITC
http://www.ala.org/ala/washoff/WOissues/copyrightb/copyright.htm
 Australian Digital Alliance http://www.digital.org.au/
 Australian Libraries Copyright Committee http://www.digital.org.au/alcc/
 Australian Library and Information Association
http://alia.org.au/advocacy/copyright/
 BEUC (European Consumer Organisation) - Consumers Digital Rights
page http://www.consumersdigitalrights.org/cms/index_en.php
 Center for the Study of the Public Domain, Duke University Law School
http://www.law.duke.edu/cspd/ - James Boyle Home Page http://jamesboyle.com/
 CPTech (Consumer Project on Technology) http://www.cptech.org/ Access to Knowledge page www.cptech.org/a2k
Information sources for Library & User
Copyright Advocacy 1
 DG Internal Market and Services Copyright and Neighbouring Rights
http://europa.eu.int/comm/internal_market/copyright/index_en.htm
 DG Information Society i2010 Digital Libraries initiative
http://europa.eu.int/information_society/activities/digital_libraries/index_en
.htm
 EBLIDA www.eblida.org EBLIDA Response/position papers and linked
Commission papers at http://www.eblida.org/position/index.htm
 EFF (Electronic Frontier Foundation) www.eff.org
 eIFL: Electronic Information for Libraries
http://www.eifl.net/services/services_ip.html
 European Digital Rights - EDRI-gram Newsletter www.edri.org
 Intellectual Property Watch www.ip-watch.org (independent news service
reporting on international IP policy)
 IP Justice www.ipjustice.org
 Libraries & Archives Copyright Alliance, UK www.cilip.org.uk/laca
 Open Rights Group, UK http://www.openrightsgroup.org/
Information sources for Library & User
Copyright Advocacy 2