| THE EUROPEAN PARLIAMENT AND
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty
establishing the European Community, and in particular Articles
47(2), 55 and 95 thereof,
Having regard to the proposal
from the Commission,[1]
Having regard to the Opinion of
the Economic and Social Committee,[2]
Acting in accordance with the
procedure laid down in Article 251 of the Treaty,[3]
Whereas:
(1) The Treaty provides for the
establishment of an internal market and the institution of a
system ensuring that competition in the internal market is not
distorted. Harmonisation of the laws of the Member States on
copyright and related rights contributes to the achievement of
these objectives.
(2) The European Council,
meeting at Corfu on 24 and 25 June 1994, stressed the need to
create a general and flexible legal framework at Community level
in order to foster the development of the information society in
Europe. This requires, inter alia, the existence of an internal
market for new products and services. Important Community
legislation to ensure such a regulatory framework is already in
place or its adoption is well under way. Copyright and related
rights play an important role in this context as they protect
and stimulate the development and marketing of new products and
services and the creation and exploitation of their creative
content.
(3) The proposed harmonisation
will help to implement the four freedoms of the internal market
and relates to compliance with the fundamental principles of law
and especially of property, including intellectual property, and
freedom of expression and the public interest.
(4) A harmonised legal
framework on copyright and related rights, through increased
legal certainty and while providing for a high level of
protection of intellectual property, will foster substantial
investment in creativity and innovation, including network
infrastructure, and lead in turn to growth and increased
competitiveness of European industry, both in the area of
content provision and information technology and more generally
across a wide range of industrial and cultural sectors. This
will safeguard employment and encourage new job creation.
(5) Technological development
has multiplied and diversified the vectors for creation,
production and exploitation. While no new concepts for the
protection of intellectual property are needed, the current law
on copyright and related rights should be adapted and
supplemented to respond adequately to economic realities such as
new forms of exploitation.
(6) Without harmonisation at
Community level, legislative activities at national level which
have already been initiated in a number of Member States in
order to respond to the technological challenges might result in
significant differences in protection and thereby in
restrictions on the free movement of services and products
incorporating, or based on, intellectual property, leading to a
refragmentation of the internal market and legislative
inconsistency. The impact of such legislative differences and
uncertainties will become more significant with the further
development of the information society, which has already
greatly increased transborder exploitation of intellectual
property. This development will and should further increase.
Significant legal differences and uncertainties in protection
may hinder economies of scale for new products and services
containing copyright and related rights.
(7) The Community legal
framework for the protection of copyright and related rights
must, therefore, also be adapted and supplemented as far as is
necessary for the smooth functioning of the internal market. To
that end, those national provisions on copyright and related
rights which vary considerably from one Member State to another
or which cause legal uncertainties hindering the smooth
functioning of the internal market and the proper development of
the information society in Europe should be adjusted, and
inconsistent national responses to the technological
developments should be avoided, whilst differences not adversely
affecting the functioning of the internal market need not be
removed or prevented.
(8) The various social,
societal and cultural implications of the information society
require that account be taken of the specific features of the
content of products and services.
(9) Any harmonisation of
copyright and related rights must take as a basis a high level
of protection, since such rights are crucial to intellectual
creation. Their protection helps to ensure the maintenance and
development of creativity in the interests of authors,
performers, producers, consumers, culture, industry and the
public at large. Intellectual property has therefore been
recognised as an integral part of property.
(10) If authors or performers
are to continue their creative and artistic work, they have to
receive an appropriate reward for the use of their work, as must
producers in order to be able to finance this work. The
investment required to produce products such as phonograms,
films or multimedia products, and services such as “on-demand”
services, is considerable. Adequate legal protection of
intellectual property rights is necessary in order to guarantee
the availability of such a reward and provide the opportunity
for satisfactory returns on this investment.
(11) A rigorous, effective
system for the protection of copyright and related rights is one
of the main ways of ensuring that European cultural creativity
and production receive the necessary resources and of
safeguarding the independence and dignity of artistic creators
and performers.
(12) Adequate protection of
copyright works and subject-matter of related rights is also of
great importance from a cultural standpoint. Article 151 of the
Treaty requires the Community to take cultural aspects into
account in its action.
(13) A common search for, and
consistent application at European level of, technical measures
to protect works and other subject-matter and to provide the
necessary information on rights are essential insofar as the
ultimate aim of these measures is to give effect to the
principles and guarantees laid down in law.
(14) This Directive should seek
to promote learning and culture by protecting works and other
subject-matter while permitting exceptions or limitations in the
public interest for the purpose of education and teaching.
(15) The Diplomatic Conference
held under the auspices of the World Intellectual Property
Organisation (WIPO) in December 1996 led to the adoption of two
new Treaties, the “WIPO Copyright Treaty” and the “WIPO
Performances and Phonograms Treaty”, dealing respectively with
the protection of authors and the protection of performers and
phonogram producers. Those Treaties update the international
protection for copyright and related rights significantly, not
least with regard to the so-called “digital agenda”, and improve
the means to fight piracy world-wide. The Community and a
majority of Member States have already signed the Treaties and
the process of making arrangements for the ratification of the
Treaties by the Community and the Member States is under way.
This Directive also serves to implement a number of the new
international obligations.
(16) Liability for activities
in the network environment concerns not only copyright and
related rights but also other areas, such as defamation,
misleading advertising, or infringement of trademarks, and is
addressed horizontally in Directive 2000/31/EC of the European
Parliament and of the Council of 8 June 2000 on certain legal
aspects of information society services, in particular
electronic commerce, in the internal market (“Directive on
electronic commerce”)[4],
which clarifies and harmonises various legal issues relating to
information society services including electronic commerce. This
Directive should be implemented within a timescale similar to
that for the implementation of the Directive on electronic
commerce, since that Directive provides a harmonised framework
of principles and provisions relevant inter alia to
important parts of this Directive. This Directive is without
prejudice to provisions relating to liability in that Directive.
(17) It is necessary,
especially in the light of the requirements arising out of the
digital environment, to ensure that collecting societies achieve
a higher level of rationalisation and transparency with regard
to compliance with competition rules.
(18) This Directive is without
prejudice to the arrangements in the Member States concerning
the management of rights such as extended collective licences.
(19) The moral rights of
rightholders should be exercised according to the legislation of
the Member States and the provisions of the Berne Convention for
the Protection of Literary and Artistic Works, of the WIPO
Copyright Treaty and of the WIPO Performances and Phonograms
Treaty. Such moral rights remain outside the scope of this
Directive.
(20) This Directive is based on
principles and rules already laid down in the Directives
currently in force in this area, in particular Directives
91/250/EEC,[5]
92/100/EEC,[6]
93/83/EEC,[7]
93/98/EEC[8] and
96/9/EC,[9] and
it develops those principles and rules and places them in the
context of the information society. The provisions of this
Directive should be without prejudice to the provisions of those
Directives, unless otherwise provided in this Directive.
(21) This Directive should
define the scope of the acts covered by the reproduction right
with regard to the different beneficiaries. This should be done
in conformity with the acquis communautaire. A broad definition
of these acts is needed to ensure legal certainty within the
internal market.
(22) The objective of proper
support for the dissemination of culture must not be achieved by
sacrificing strict protection of rights or by tolerating illegal
forms of distribution of counterfeited or pirated works.
(23) This Directive should
harmonise further the author’s right of communication to the
public. This right should be understood in a broad sense
covering all communication to the public not present at the
place where the communication originates. This right should
cover any such transmission or retransmission of a work to the
public by wire or wireless means, including broadcasting. This
right should not cover any other acts.
(24) The right to make
available to the public subject-matter referred to in Article
3(2) should be understood as covering all acts of making
available such subject-matter to members of the public not
present at the place where the act of making available
originates, and as not covering any other acts.
(25) The legal uncertainty
regarding the nature and the level of protection of acts of
on-demand transmission of copyright works and subject-matter
protected by related rights over networks should be overcome by
providing for harmonised protection at Community level. It
should be made clear that all rightholders recognised by this
Directive should have an exclusive right to make available to
the public copyright works or any other subject-matter by way of
interactive on-demand transmissions. Such interactive on-demand
transmissions are characterised by the fact that members of the
public may access them from a place and at a time individually
chosen by them.
(26) With regard to the making
available in on-demand services by broadcasters of their radio
or television productions incorporating music from commercial
phonograms as an integral part thereof, collective licensing
arrangements are to be encouraged in order to facilitate the
clearance of the rights concerned.
(27) The mere provision of
physical facilities for enabling or making a communication does
not in itself amount to communication within the meaning of this
Directive.
(28) Copyright protection under
this Directive includes the exclusive right to control
distribution of the work incorporated in a tangible article. The
first sale in the Community of the original of a work or copies
thereof by the rightholder or with his consent exhausts the
right to control resale of that object in the Community. This
right should not be exhausted in respect of the original or of
copies thereof sold by the rightholder or with his consent
outside the Community. Rental and lending rights for authors
have been established in Directive 92/100/EEC. The distribution
right provided for in this Directive is without prejudice to the
provisions relating to the rental and lending rights contained
in Chapter I of that Directive.
(29) The question of exhaustion
does not arise in the case of services and on-line services in
particular. This also applies with regard to a material copy of
a work or other subject-matter made by a user of such a service
with the consent of the rightholder. Therefore, the same applies
to rental and lending of the original and copies of works or
other subject-matter which are services by nature. Unlike CD-ROM
or CD-I, where the intellectual property is incorporated in a
material medium, namely an item of goods, every on-line service
is in fact an act which should be subject to authorisation where
the copyright or related right so provides.
(30) The rights referred to in
this Directive may be transferred, assigned or subject to the
granting of contractual licences, without prejudice to the
relevant national legislation on copyright and related rights.
(31) A fair balance of rights
and interests between the different categories of rightholders,
as well as between the different categories of rightholders and
users of protected subject-matter must be safeguarded. The
existing exceptions and limitations to the rights as set out by
the Member States have to be reassessed in the light of the new
electronic environment. Existing differences in the exceptions
and limitations to certain restricted acts have direct negative
effects on the functioning of the internal market of copyright
and related rights. Such differences could well become more
pronounced in view of the further development of transborder
exploitation of works and cross-border activities. In order to
ensure the proper functioning of the internal market, such
exceptions and limitations should be defined more harmoniously.
The degree of their harmonisation should be based on their
impact on the smooth functioning of the internal market.
(32) This Directive provides
for an exhaustive enumeration of exceptions and limitations to
the reproduction right and the right of communication to the
public. Some exceptions or limitations only apply to the
reproduction right, where appropriate. This list takes due
account of the different legal traditions in Member States,
while, at the same time, aiming to ensure a functioning internal
market. Member States should arrive at a coherent application of
these exceptions and limitations, which will be assessed when
reviewing implementing legislation in the future.
(33) The exclusive right of
reproduction should be subject to an exception to allow certain
acts of temporary reproduction, which are transient or
incidental reproductions, forming an integral and essential part
of a technological process and carried out for the sole purpose
of enabling either efficient transmission in a network between
third parties by an intermediary, or a lawful use of a work or
other subject-matter to be made. The acts of reproduction
concerned should have no separate economic value on their own.
To the extent that they meet these conditions, this exception
should include acts which enable browsing as well as acts of
caching to take place, including those which enable transmission
systems to function efficiently, provided that the intermediary
does not modify the information and does not interfere with the
lawful use of technology, widely recognised and used by
industry, to obtain data on the use of the information. A use
should be considered lawful where it is authorised by the
rightholder or not restricted by law.
(34) Member States should be
given the option of providing for certain exceptions or
limitations for cases such as educational and scientific
purposes, for the benefit of public institutions such as
libraries and archives, for purposes of news reporting, for
quotations, for use by people with disabilities, for public
security uses and for uses in administrative and judicial
proceedings.
(35) In certain cases of
exceptions or limitations, rightholders should receive fair
compensation to compensate them adequately for the use made of
their protected works or other subject-matter. When determining
the form, detailed arrangements and possible level of such fair
compensation, account should be taken of the particular
circumstances of each case. When evaluating these circumstances,
a valuable criterion would be the possible harm to the
rightholders resulting from the act in question. In cases where
rightholders have already received payment in some other form,
for instance as part of a licence fee, no specific or separate
payment may be due. The level of fair compensation should take
full account of the degree of use of technological protection
measures referred to in this Directive. In certain situations
where the prejudice to the rightholder would be minimal, no
obligation for payment may arise.
(36) The Member States may
provide for fair compensation for rightholders also when
applying the optional provisions on exceptions or limitations
which do not require such compensation.
(37) Existing national schemes
on reprography, where they exist, do not create major barriers
to the internal market. Member States should be allowed to
provide for an exception or limitation in respect of
reprography.
(38) Member States should be
allowed to provide for an exception or limitation to the
reproduction right for certain types of reproduction of audio,
visual and audio-visual material for private use, accompanied by
fair compensation. This may include the introduction or
continuation of remuneration schemes to compensate for the
prejudice to rightholders. Although differences between those
remuneration schemes affect the functioning of the internal
market, those differences, with respect to analogue private
reproduction, should not have a significant impact on the
development of the information society. Digital private copying
is likely to be more widespread and have a greater economic
impact. Due account should therefore be taken of the differences
between digital and analogue private copying and a distinction
should be made in certain respects between them.
(39) When applying the
exception or limitation on private copying, Member States should
take due account of technological and economic developments, in
particular with respect to digital private copying and
remuneration schemes, when effective technological protection
measures are available. Such exceptions or limitations should
not inhibit the use of technological measures or their
enforcement against circumvention.
(40) Member States may provide
for an exception or limitation for the benefit of certain
non-profit making establishments, such as publicly accessible
libraries and equivalent institutions, as well as archives.
However, this should be limited to certain special cases covered
by the reproduction right. Such an exception or limitation
should not cover uses made in the context of on-line delivery of
protected works or other subject-matter. This Directive should
be without prejudice to the Member States’ option to derogate
from the exclusive public lending right in accordance with
Article 5 of Directive 92/100/EEC. Therefore, specific contracts
or licences should be promoted which, without creating
imbalances, favour such establishments and the disseminative
purposes they serve.
(41) When applying the
exception or limitation in respect of ephemeral recordings made
by broadcasting organisations it is understood that a
broadcaster’s own facilities include those of a person acting on
behalf of and under the responsibility of the broadcasting
organisation.
(42) When applying the
exception or limitation for non-commercial educational and
scientific research purposes, including distance learning, the
non-commercial nature of the activity in question should be
determined by that activity as such. The organisational
structure and the means of funding of the establishment
concerned are not the decisive factors in this respect.
(43) It is in any case
important for the Member States to adopt all necessary measures
to facilitate access to works by persons suffering from a
disability which constitutes an obstacle to the use of the works
themselves, and to pay particular attention to accessible
formats.
(44) When applying the
exceptions and limitations provided for in this Directive, they
should be exercised in accordance with international
obligations. Such exceptions and limitations may not be applied
in a way which prejudices the legitimate interests of the
rightholder or which conflicts with the normal exploitation of
his work or other subject-matter. The provision of such
exceptions or limitations by Member States should, in
particular, duly reflect the increased economic impact that such
exceptions or limitations may have in the context of the new
electronic environment. Therefore, the scope of certain
exceptions or limitations may have to be even more limited when
it comes to certain new uses of copyright works and other
subject-matter.
(45) The exceptions and
limitations referred to in Article 5(2), (3) and (4) should not,
however, prevent the definition of contractual relations
designed to ensure fair compensation for the rightholders
insofar as permitted by national law.
(46) Recourse to mediation
could help users and rightholders to settle disputes. The
Commission, in cooperation with the Member States within the
Contact Committee, should undertake a study to consider new
legal ways of settling disputes concerning copyright and related
rights.
(47) Technological development
will allow rightholders to make use of technological measures
designed to prevent or restrict acts not authorised by the
rightholders of any copyright, rights related to copyright or
the sui generis right in databases. The danger, however, exists
that illegal activities might be carried out in order to enable
or facilitate the circumvention of the technical protection
provided by these measures. In order to avoid fragmented legal
approaches that could potentially hinder the functioning of the
internal market, there is a need to provide for harmonised legal
protection against circumvention of effective technological
measures and against provision of devices and products or
services to this effect.
(48) Such legal protection
should be provided in respect of technological measures that
effectively restrict acts not authorised by the rightholders of
any copyright, rights related to copyright or the sui generis
right in databases without, however, preventing the normal
operation of electronic equipment and its technological
development. Such legal protection implies no obligation to
design devices, products, components or services to correspond
to technological measures, so long as such device, product,
component or service does not otherwise fall under the
prohibition of Article 6. Such legal protection should respect
proportionality and should not prohibit those devices or
activities which have a commercially significant purpose or use
other than to circumvent the technical protection. In
particular, this protection should not hinder research into
cryptography.
(49) The legal protection of
technological measures is without prejudice to the application
of any national provisions which may prohibit the private
possession of devices, products or components for the
circumvention of technological measures.
(50) Such a harmonised legal
protection does not affect the specific provisions on protection
provided for by Directive 91/250/EEC. In particular, it should
not apply to the protection of technological measures used in
connection with computer programs, which is exclusively
addressed in that Directive. It should neither inhibit nor
prevent the development or use of any means of circumventing a
technological measure that is necessary to enable acts to be
undertaken in accordance with the terms of Article 5(3) or
Article 6 of Directive 91/250/EEC. Articles 5 and 6 of that
Directive exclusively determine exceptions to the exclusive
rights applicable to computer programs.
(51) The legal protection of
technological measures applies without prejudice to public
policy, as reflected in Article 5, or public security. Member
States should promote voluntary measures taken by rightholders,
including the conclusion and implementation of agreements
between rightholders and other parties concerned, to accommodate
achieving the objectives of certain exceptions or limitations
provided for in national law in accordance with this Directive.
In the absence of such voluntary measures or agreements within a
reasonable period of time, Member States should take appropriate
measures to ensure that rightholders provide beneficiaries of
such exceptions or limitations with appropriate means of
benefiting from them, by modifying an implemented technological
measure or by other means. However, in order to prevent abuse of
such measures taken by rightholders, including within the
framework of agreements, or taken by a Member State, any
technological measures applied in implementation of such
measures should enjoy legal protection.
(52) When implementing an
exception or limitation for private copying in accordance with
Article 5(2)(b), Member States should likewise promote the use
of voluntary measures to accommodate achieving the objectives of
such exception or limitation. If, within a reasonable period of
time, no such voluntary measures to make reproduction for
private use possible have been taken, Member States may take
measures to enable beneficiaries of the exception or limitation
concerned to benefit from it. Voluntary measures taken by
rightholders, including agreements between rightholders and
other parties concerned, as well as measures taken by Member
States, do not prevent rightholders from using technological
measures which are consistent with the exceptions or limitations
on private copying in national law in accordance with Article
5(2)(b), taking account of the condition of fair compensation
under that provision and the possible differentiation between
various conditions of use in accordance with Article 5(5), such
as controlling the number of reproductions. In order to prevent
abuse of such measures, any technological measures applied in
their implementation should enjoy legal protection.
(53) The protection of
technological measures should ensure a secure environment for
the provision of interactive on-demand services, in such a way
that members of the public may access works or other
subject-matter from a place and at a time individually chosen by
them. Where such services are governed by contractual
arrangements, the first and second subparagraphs of Article 6(4)
should not apply. Non-interactive forms of online use should
remain subject to those provisions.
(54) Important progress has
been made in the international standardisation of technical
systems of identification of works and protected subject-matter
in digital format. In an increasingly networked environment,
differences between technological measures could lead to an
incompatibility of systems within the Community. Compatibility
and interoperability of the different systems should be
encouraged. It would be highly desirable to encourage the
development of global systems.
(55) Technological development
will facilitate the distribution of works, notably on networks,
and this will entail the need for rightholders to identify
better the work or other subject-matter, the author or any other
rightholder, and to provide information about the terms and
conditions of use of the work or other subject-matter in order
to render easier the management of rights attached to them.
Rightholders should be encouraged to use markings indicating, in
addition to the information referred to above, inter alia their
authorisation when putting works or other subject-matter on
networks.
(56) There is, however, the
danger that illegal activities might be carried out in order to
remove or alter the electronic copyright-management information
attached to it, or otherwise to distribute, import for
distribution, broadcast, communicate to the public or make
available to the public works or other protected subject-matter
from which such information has been removed without authority.
In order to avoid fragmented legal approaches that could
potentially hinder the functioning of the internal market, there
is a need to provide for harmonised legal protection against any
of these activities.
(57) Any such rights-management
information systems referred to above may, depending on their
design, at the same time process personal data about the
consumption patterns of protected subject-matter by individuals
and allow for tracing of on-line behaviour. These technical
means, in their technical functions, should incorporate privacy
safeguards in accordance with Directive 95/46/EC[10]
of the European Parliament and of the Council of 24 October 1995
on the protection of individuals with regard to the processing
of personal data and the free movement of such data .
(58) Member States should
provide for effective sanctions and remedies for infringements
of rights and obligations as set out in this Directive. They
should take all the measures necessary to ensure that those
sanctions and remedies are applied. The sanctions thus provided
for should be effective, proportionate and dissuasive and should
include the possibility of seeking damages and/or injunctive
relief and, where appropriate, of applying for seizure of
infringing material.
(59) In the digital
environment, in particular, the services of intermediaries may
increasingly be used by third parties for infringing activities.
In many cases such intermediaries are best placed to bring such
infringing activities to an end. Therefore, without prejudice to
any other sanctions and remedies available, rightholders should
have the possibility of applying for an injunction against an
intermediary who carries a third party’s infringement of a
protected work or other subject-matter in a network. This
possibility should be available even where the acts carried out
by the intermediary are exempted under Article 5. The conditions
and modalities relating to such injunctions should be left to
the national law of the Member States.
(60) The protection provided
under this Directive should be without prejudice to national or
Community legal provisions in other areas, such as industrial
property, data protection, conditional access, access to public
documents, and the rule of media exploitation chronology, which
may affect the protection of copyright or related rights.
(61) In order to comply with
the WIPO Performances and Phonograms Treaty, Directives
92/100/EEC and 93/98/EEC should be amended,
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
Objective and scope
Article 1
Scope
1. This Directive concerns the
legal protection of copyright and related rights in the
framework of the internal market, with particular emphasis on
the information society.
2. Except in the cases referred
to in Article 11, this Directive shall leave intact and shall in
no way affect existing Community provisions relating to:
(a) the legal protection of
computer programs;
(b) rental right, lending
right and certain rights related to copyright in the field of
intellectual property;
(c) copyright and related
rights applicable to broadcasting of programmes by satellite
and cable retransmission;
(d) the term of protection of
copyright and certain related rights;
(e) the legal protection of
databases.
CHAPTER II
Rights and exceptions
Article 2
Reproduction right
Member States shall provide for
the exclusive right to authorise or prohibit direct or indirect,
temporary or permanent reproduction by any means and in any
form, in whole or in part:
(a) for authors, of their
works;
(b) for performers, of
fixations of their performances;
(c) for phonogram producers,
of their phonograms;
(d) for the producers of the
first fixations of films, in respect of the original and
copies of their films;
(e) for broadcasting
organisations, of fixations of their broadcasts, whether those
broadcasts are transmitted by wire or over the air, including
by cable or satellite.
Article 3
Right of communication to the
public of works and right of making available to the public
other subject-matter
1. Member States shall provide
authors with the exclusive right to authorise or prohibit any
communication to the public of their works, by wire or wireless
means, including the making available to the public of their
works in such a way that members of the public may access them
from a place and at a time individually chosen by them.
2. Member States shall provide
for the exclusive right to authorise or prohibit the making
available to the public, by wire or wireless means, in such a
way that members of the public may access them from a place and
at a time individually chosen by them:
(a) for performers, of
fixations of their performances;
(b) for phonogram producers,
of their phonograms;
(c) for the producers of the
first fixations of films, of the original and copies of their
films;
(d) for broadcasting
organisations, of fixations of their broadcasts, whether these
broadcasts are transmitted by wire or over the air, including
by cable or satellite.
3. The rights referred to in
paragraphs 1 and 2 shall not be exhausted by any act of
communication to the public or making available to the public as
set out in this Article.
Article 4
Distribution right
1. Member States shall provide
for authors, in respect of the original of their works or of
copies thereof, the exclusive right to authorise or prohibit any
form of distribution to the public by sale or otherwise.
2. The distribution right shall
not be exhausted within the Community in respect of the original
or copies of the work, except where the first sale or other
transfer of ownership in the Community of that object is made by
the rightholder or with his consent.
Article 5
Exceptions and limitations
1. Temporary acts of
reproduction referred to in Article 2, which are transient or
incidental [and] an integral and essential part of a
technological process and whose sole purpose is to enable:
(a) a transmission in a
network between third parties by an intermediary, or
(b) a lawful use
of a work or other
subject-matter to be made, and which have no independent
economic significance, shall be exempted from the reproduction
right provided for in Article 2.
2. Member States may provide
for exceptions or limitations to the reproduction right provided
for in Article 2 in the following cases:
(a) in respect of
reproductions on paper or any similar medium, effected by the
use of any kind of photographic technique or by some other
process having similar effects, with the exception of sheet
music, provided that the rightholders receive fair
compensation;
(b) in respect of
reproductions on any medium made by a natural person for
private use and for ends that are neither directly nor
indirectly commercial, on condition that the rightholders
receive fair compensation which takes account of the
application or non-application of technological measures
referred to in Article 6 to the work or subject-matter
concerned;
(c) in respect of specific
acts of reproduction made by publicly accessible libraries,
educational establishments or museums, or by archives, which
are not for direct or indirect economic or commercial
advantage;
(d) in respect of ephemeral
recordings of works made by broadcasting organisations by
means of their own facilities and for their own broadcasts;
the preservation of these recordings in official archives may,
on the ground of their exceptional documentary character, be
permitted;
(e) in respect of
reproductions of broadcasts made by social institutions
pursuing non-commercial purposes, such as hospitals or
prisons, on condition that the rightholders receive fair
compensation.
3. Member States may provide
for exceptions or limitations to the rights provided for in
Articles 2 and 3 in the following cases:
(a) use for the sole purpose
of illustration for teaching or scientific research, as long
as the source, including the author’s name, is indicated,
unless this turns out to be impossible and to the extent
justified by the non-commercial purpose to be achieved;
(b) uses, for the benefit of
people with a disability, which are directly related to the
disability and of a non-commercial nature, to the extent
required by the specific disability;
(c) reproduction by the
press, communication to the public or making available of
published articles on current economic, political or religious
topics or of broadcast works or other subject-matter of the
same character, in cases where such use is not expressly
reserved, and as long as the source, including the author’s
name, is indicated, or use of works or other subject-matter in
connection with the reporting of current events, to the extent
justified by the informatory purpose and as long as the
source, including the author’s name, is indicated, unless this
turns out to be impossible;
(d) 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, unless this turns out to
be impossible, the source, including the author’s name, is
indicated, and that their use is in accordance with fair
practice, and to the extent required by the specific purpose;
(e) use for the purposes of
public security or to ensure the proper performance or
reporting of administrative, parliamentary or judicial
proceedings;
(f) use of political speeches
as well as extracts of public lectures or similar works or
subject-matter to the extent justified by the informatory
purpose and provided that the source, including the author’s
name, is indicated, except where this turns out to be
impossible;
(g) use during religious
celebrations or official celebrations organised by a public
authority;
(h) use of works, such as
works of architecture or sculpture, made to be located
permanently in public places;
(i) incidental inclusion of a
work or other subject-matter in other material;
(j) use for the purpose of
advertising the public exhibition or sale of artistic works,
to the extent necessary to promote the event, excluding any
other commercial use;
(k) use for the purpose of
caricature, parody or pastiche;
(l) use in connection with
the demonstration or repair of equipment;
(m) use of an artistic work
in the form of a building or a drawing or plan of a building
for the purposes of reconstructing the building;
(n) use by communication or
making available, for the purpose of research or private
study, to individual members of the public by dedicated
terminals on the premises of establishments referred to in
paragraph 2(c) of works and other subject-matter not subject
to purchase or licensing terms which are contained in their
collections;
(o) use in certain other
cases of minor importance where exceptions or limitations
already exist under national law, provided that they only
concern analogue uses and do not affect the free circulation
of goods and services within the Community, without prejudice
to the other exceptions and limitations contained in this
Article.
4. Where the Member States may
provide for an exception or limitation to the right of
reproduction pursuant to paragraphs 2 and 3, they may provide
similarly for an exception or limitation to the right of
distribution as referred to in Article 4 to the extent justified
by the purpose of the authorised act of reproduction.
5. The exceptions and
limitations provided for in paragraphs 1, 2, 3 and 4 shall only
be applied in certain special cases which do not conflict with a
normal exploitation of the work or other subject-matter and do
not unreasonably prejudice the legitimate interests of the
rightholder.
CHAPTER III
Protection of technological
measures and rights-management information
Article 6
Obligations as to technological
measures
1. Member States shall provide
adequate legal protection against the circumvention of any
effective technological measures, which the person concerned
carries out in the knowledge, or with reasonable grounds to
know, that he or she is pursuing that objective.
2. Member States shall provide
adequate legal protection against the manufacture, import,
distribution, sale, rental, advertisement for sale or rental, or
possession for commercial purposes of devices, products or
components or the provision of services which:
(a) are promoted, advertised
or marketed for the purpose of circumvention of, or
(b) have only a limited
commercially significant purpose or use other than to
circumvent, or
(c) are primarily designed,
produced, adapted or performed for the purpose of enabling or
facilitating the circumvention of,
any effective technological
measures.
3. For the purposes of this
Directive, the expression “technological measures” means any
technology, device or component that, in the normal course of
its operation, is designed to prevent or restrict acts, in
respect of works or other subject-matter, which are not
authorised by the rightholder of any copyright or any right
related to copyright as provided for by law or the sui generis
right provided for in Chapter III of Directive 96/9/EC.
Technological measures shall be deemed “effective” where the use
of a protected work or other subject-matter is controlled by the
rightholders through application of an access control or
protection process, such as encryption, scrambling or other
transformation of the work or other subject-matter or a copy
control mechanism, which achieves the protection objective.
4. Notwithstanding the legal
protection provided for in paragraph 1, in the absence of
voluntary measures taken 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(2)(a),
(2)(c), (2)(d), (2)(e), (3)(a), (3)(b) or (3)(e) the means of
benefiting from that exception or limitation, to the extent
necessary to benefit from that exception or limitation and where
that beneficiary has legal access to the protected work or
subject-matter concerned.
A Member State may also take
such measures in respect of a beneficiary of an exception or
limitation provided for in accordance with Article 5(2)(b),
unless reproduction for private use has already been made
possible by rightholders to the extent necessary to benefit from
the exception or limitation concerned and in accordance with the
provisions of Article 5(2)(b) and (5), without preventing
rightholders from adopting adequate measures regarding the
number of reproductions in accordance with these provisions.
The technological measures
applied voluntarily by rightholders, including those applied in
implementation of voluntary agreements, and technological
measures applied in implementation of the measures taken by
Member States, shall enjoy the legal protection provided for in
paragraph 1.
The provisions of the first and
second subparagraphs shall not apply to works or other
subject-matter made available to the public on agreed
contractual terms in such a way that members of the public may
access them from a place and at a time individually chosen by
them.
When this Article is applied in
the context of Directives 92/100/EEC and 96/9/EC, this paragraph
shall apply mutatis mutandis.
Article 7
Obligations concerning
rights-management information
1. Member States shall provide
for adequate legal protection against any person knowingly
performing without authority any of the following acts:
(a) the removal or alteration
of any electronic rights-management information;
(b) the distribution,
importation for distribution, broadcasting, communication or
making available to the public of works or other
subject-matter protected under this Directive or under Chapter
III of Directive 96/9/EC from which electronic
rights-management information has been removed or altered
without authority,
if such person knows, or has
reasonable grounds to know, that by so doing he is inducing,
enabling, facilitating or concealing an infringement of any
copyright or any rights related to copyright as provided by law,
or of the sui generis right provided for in Chapter III of
Directive 96/9/EC.
2. For the purposes of this
Directive, the expression “rights-management information” means
any information provided by rightholders which identifies the
work or other subject-matter referred to in this Directive or
covered by the sui generis right provided for in Chapter III of
Directive 96/9/EC, the author or any other rightholder, or
information about the terms and conditions of use of the work or
other subject-matter, and any numbers or codes that represent
such information.
The first subparagraph shall
apply when any of these items of information is associated with
a copy of, or appears in connection with the communication to
the public of, a work or other subject-matter referred to in
this Directive or covered by the sui generis right provided for
in Chapter III of Directive 96/9/EC.
CHAPTER IV
Common provisions
Article 8
Sanctions and remedies
1. Member States shall provide
appropriate sanctions and remedies in respect of infringements
of the rights and obligations set out in this Directive and
shall take all the measures necessary to ensure that those
sanctions and remedies are applied. The sanctions thus provided
for shall be effective, proportionate and dissuasive.
2. Each Member State shall take
the measures necessary to ensure that rightholders whose
interests are affected by an infringing activity carried out on
its territory can bring an action for damages and/or apply for
an injunction and, where appropriate, for the seizure of
infringing material as well as of devices, products or
components referred to in Article 6(2).
3. Member States shall ensure
that rightholders are in a position to apply for an injunction
against intermediaries whose services are used by a third party
to infringe a copyright or related right.
Article 9
Continued application of other
legal provisions
This Directive shall be without
prejudice to provisions concerning in particular patent rights,
trade marks, design rights, utility models, topographies of
semi-conductor products, type faces, conditional access, access
to cable of broadcasting services, protection of national
treasures, legal deposit requirements, laws on restrictive
practices and unfair competition, trade secrets, security,
confidentiality, data protection and privacy, access to public
documents, the law of contract.
Article 10
Application over time
1. The provisions of this
Directive shall apply in respect of all works and other
subject-matter referred to in this Directive which are, on
..... [*] ,
protected by the Member States’ legislation in the field of
copyright and related rights, or which meet the criteria for
protection under the provisions of this Directive or the
provisions referred to in Article 1(2).
2. This Directive shall apply
without prejudice to any acts concluded and rights acquired
before ..... [*].
Article 11
Technical adaptations
1. Directive 92/100/EEC is
hereby amended as follows:
(a) Article 7 shall be
deleted;
(b) Article 10(3) shall be
replaced by the following:
“3. The limitations shall
only be applied in certain special cases which do not
conflict with a normal exploitation of the subject-matter
and do not unreasonably prejudice the legitimate interests
of the rightholder.”.
2. Article 3(2) of Directive
93/98/EEC shall be replaced by the following:
“2. The rights of producers
of phonograms shall expire 50 years after the fixation is
made. However, if the phonogram has been lawfully published
within this period, the said rights shall expire 50 years from
the date of the first lawful publication. If no lawful
publication has taken place within the period mentioned in the
first sentence, and if the phonogram has been lawfully
communicated to the public within this period, the said rights
shall expire 50 years from the date of the first lawful
communication to the public.”
However, where through the
expiry of the term of protection granted pursuant to this
paragraph in its version before amendment by Directive
2001/29/EC of the European Parliament and of the Council of 22
May 2001 on the harmonisation of certain aspects of copyright
and related rights in the information society
..... [*] the
rights of producers of phonograms are no longer protected on
..... [**], this
paragraph shall not have the effect of protecting those rights
anew.
Article 12
Final provisions
1. Not later than
..... [***]
and every three years thereafter, the Commission shall submit to
the European Parliament, the Council and the Economic and Social
Committee a report on the application of this Directive, in
which, inter alia, on the basis of specific information supplied
by the Member States, it shall examine in particular the
application of Articles 5, 6 and 8 in the light of the
development of the digital market. In the case of Article 6, it
shall examine in particular whether that Article confers a
sufficient level of protection and whether acts which are
permitted by law are being adversely affected by the use of
effective technological measures. Where necessary, in particular
to ensure the functioning of the internal market pursuant to
Article 14 of the Treaty, it shall submit proposals for
amendments to this Directive.
2. Protection of rights related
to copyright under this Directive shall leave intact and shall
in no way affect the protection of copyright.
3. A contact committee is
hereby established. It shall be composed of representatives of
the competent authorities of the Member States. It shall be
chaired by a representative of the Commission and shall meet
either on the initiative of the chairman or at the request of
the delegation of a Member State.
4. The tasks of the committee
shall be as follows:
(a) to examine the impact of
this Directive on the functioning of the internal market, and
to highlight any difficulties;
(b) to organise consultations
on all questions deriving from the application of this
Directive;
(c) to facilitate the
exchange of information on relevant developments in
legislation and case-law, as well as relevant economic,
social, cultural and technological developments;
(d) to act as a forum for the
assessment of the digital market in works and other items,
including private copying and the use of technological
measures.
Article 13
Implementation
1. Member States shall bring
into force the laws, regulations and administrative provisions
necessary to comply with this Directive before
..... [*]. They
shall forthwith inform the Commission thereof.
When Member States adopt these
measures, they shall contain a reference to this Directive or
shall be accompanied by such reference on the occasion of their
official publication. The methods of making such reference shall
be laid down by Member States.
2. Member States shall
communicate to the Commission the text of the provisions of
domestic law which they adopt in the field governed by this
Directive.
Article 14
Entry into force
This Directive shall enter into
force on the day of its publication in the Official Journal of
the European Communities.
Article 15
Addressees
This Directive is addressed to
the Member States.
|
