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