Tag Archives: Copyright

Copyright and related rights: term of protection

Copyright and related rights: term of protection

Outline of the Community (European Union) legislation about Copyright and related rights: term of protection

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Intellectual property

Copyright and related rights: term of protection

Document or Iniciative

Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (codified version).

Summary

The term of protection of copyright for a literary or artistic work is set at 70 years from:

  • the death of the author of the work or the death of the last surviving author in the case of a work of joint ownership;
  • the date on which the work was lawfully made available to the public if it is anonymous or was produced under a pseudonym.

The term of protection for a film or audiovisual work is set at 70 years after the death of the last survivor among the following: the principal director, the author of the screenplay, the author of the dialogue and the composer of music specifically created for use in the cinematographic or audiovisual work.

Related rights

The term of protection of related rights (performers, producers of phonograms, film producers and broadcasting organisations) is set at 50 years. This term is to be calculated on a case-by-case basis from the date of the performance, the publication or communication of its fixation.

Calculating terms

The term of protection begins simultaneously in all the Member States. It is calculated from 1 January of the year following the event giving rise to it.

Protection of works from Non-EU Member Countries

If the work originates in a third country and the author is not a Community national, the protection granted in the Member States ends at the final date of protection in the country of origin, but must not exceed the term set in the Community.

Notification

The Member States are required to communicate to the Commission immediately any plans for new related rights.

Context

Directive 2006/116/EC codifies and repeals Directive 93/98/EEC harmonising the term of protection of copyright and certain related rights which was substantially amended by Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.

REFERENCES

Act

Entry into force – Date of expiry

Deadline for transposition in the Member States

Official Journal

Directive 2006/116/EC [Procedure: codecision COD/2006/0071]

16.1.2007

1.7.1995 for provisions of Directive 93/98/EEC (repealed)
22.12.2002 for provisions of Directive 2001/29/EC (repealed)

OJ L 372 of 27.12.2006

RELATED ACTS

Proposal for a Directive of the European Parliament and of the Council amending Directive 2006/116/EEC of 16 July 2008 of the European Parliament and of the Council on the term of protection of copyright and certain related rights [COM(2008) 464 final – Not published in the Official Journal].

This Proposal aims to extend the term of protection for performers’ and producers’ rights from 50 to years, from publication of the work. This extension would allow performers to commercially exploit their work for a longer time, and record producers to generate additional income from the sale of recordings in their stores and on the Internet.
Furthermore, the Commission proposes a uniform way of calculating the term of protection for musical compositions containing the contributions of several authors. The proposed rule provides that the term of protection of a musical composition shall expire 70 years after the death of the last surviving author, whether they are the author of the words or the composer of the music.
Codecision procedure (COD/2008/0157)

Management of copyright and related rights in the internal market

Management of copyright and related rights in the internal market

Outline of the Community (European Union) legislation about Management of copyright and related rights in the internal market

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Intellectual property

Management of copyright and related rights in the internal market

Document or Iniciative

Commission Communication of April 16, 2004 on the management of copyright and related rights in the internal market [COM (2004) 261 – Not published in the Official Journal].

Summary

This communication deals with the management of copyright and related rights, i.e. how they are administered (granted through licences, assigned or financed). It concludes a consultation process started in 1995.

The Commission considers whether current management methods, which are mainly governed by national legislations, hamper the good functioning of the internal market. The exchange of goods and services based on copyright or related rights increasingly often takes place at Community level. Accordingly, the legislative framework governing the protection of these rights has to cater for this.

The Commission considers whether it is convenient to let the market stimulate Community licensing or whether it is preferable to enact Community legislation. The Commission puts forward a number of options:

  • ensure that any licence on the rights to communicate with or make available to the public, allows – by definition – usage throughout the Community;
  • adopt the same model as the one chosen for satellite broadcasting under Directive 93/83/EEC. The relevant act of communication to the public occurs solely in the Member State where the programme-carrying signals are introduced into an uninterrupted chain of communication up to the satellite and down towards the earth. The Commission expresses reservations, underlining that this approach does not necessarily yield the desired result of multi-territorial licensing;
  • bring the exclusive rights of communication to the public and of ‘making available’ under one remuneration right subject to obligatory collective management;
  • leave users the freedom to choose the collecting society within the European Economic Area which will issue the required operating licence;
  • empower collecting societies to offer Community licences;
  • focus exclusively on forms of collective management by specialised societies.

Another fundamental issue is the management of digital rights. Digital Rights Management systems (DRM systems) enable the distribution to be restricted to copies of digital content by obtaining and managing copyrights. To complete the internal market in this area, it is necessary to establish a global and interoperable technical infrastructure based on consensus among the interested parties, including consumers.

The management of copyrights and related rights can be done either individually or collectively. The Commission has examined these two ways of managing rights.

Individual Rights Management

It is the marketing of rights by individual rightholders to commercial users through exclusive or non-exclusive contractual licences.

The Commission has noted that the degree of common ground across Member States regarding the rules appears to be sufficient in this area. It is therefore not necessary to undertake action at Community level in the near future.

Collective Rights Management

This term refers to the system under which a collecting society, as trustee, jointly administers rights and monitors, collects and distributes the payment of royalties on behalf of several rightholders.

In this area, the Commission underlines the need to have a common legal framework based on the principles of copyright and the needs of the internal market. It would deal with issues linked to the establishment and status of collecting societies. This legislation would foster the emergence of Community licences for exploiting rights and would finalise the internal market.

It has initiated a new consultation process which has led to the adoption of a recommendation on cross-border collective management of copyright and relative rights in the field of legal on-line music services. It also intends to put forward legislation on certain features of collective management and good governance of collecting societies in order to ensure a higher degree of efficiency, legal certainty and transparency.

Intellectual property rights: enhancing their enforcement

Intellectual property rights: enhancing their enforcement

Outline of the Community (European Union) legislation about Intellectual property rights: enhancing their enforcement

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Intellectual property

Intellectual property rights: enhancing their enforcement

Document or Iniciative

Communication from the Commission to the Council, the European Parliament and the European Economic and Social Committee of 11 September 2009 – Enhancing the enforcement of intellectual property rights in the internal market [COM(2009) 467 final – Not published in the Official Journal].

Summary

This Communication presents measures aimed at safeguarding intellectual property rights (IPR) and combating counterfeiting and piracy within the internal market.

European Observatory

The European Commission is establishing a European Observatory, the aim of which is to gather, monitor and report information and data related to IPR.

This Observatory requires collaboration between Member States and the private sector.

The main functions of the Observatory are:

  • the collection and use of independent, reliable information and data;
  • the dissemination of best practice amongst public authorities;
  • the dissemination of successful private sector strategies;
  • the assessment and identification of solutions for specific geographical areas.

The Observatory should be based on existing European Commission structures, and the Commission will provide the central administrative resource. It will however be possible, where necessary, to make use of external expertise.

The Commission has asked the Member States to appoint a national representative for the Observatory and has requested the participation of the private sector including a broad range of national and pan-European bodies representing the different economic sectors most involved in the fight against piracy and counterfeiting. European consumers are also represented and invited to play an active role.

Administrative cooperation across Europe

It is necessary to improve cross-border cooperation between different enforcement authorities in view of the international nature of IPR infringements.

Cooperation between the Commission and Member States should also be consolidated in the context of a borderless internal market. In this regard, the creation of a network of contact points across the European Union would be a relevant solution.

As the national centres of IPR expertise, National Intellectual Property Offices also have a role to play. They can contribute to developing strategic approaches and the dissemination of best practices.

National bodies should improve transparency in respect of the activities that they carry out in the field of IPR protection. The Commission, on the basis of information collected from Member States, is responsible for analysing the structures that Member States have put in place and drafting a report to map existing strategies, frameworks and best practices.

Stakeholders in European cooperation in the field of IPR should have access to an electronic network for the exchange of information on infringements that have been committed. This network will need to:

  • support ‘real-time’ exchanges of information on goods and services infringing IPR;
  • put in place an effective system of alerts concerning specific products or potential threats;
  • facilitate communication between the parties involved, particularly to overcome language barriers;
  • raise consumers’ awareness of the growing threat of counterfeiting and piracy and the associated risks.

Voluntary arrangements between stakeholders

The Commission wishes to encourage rights holders and the other parties involved to engage in dialogue and to share their common interests in combating IPR infringements. In this regard, voluntary arrangements seem to be the most appropriate solution, since this type of agreement allows for rapid adaptation to new technologies and may be extended beyond the European Union (EU).

The sale of counterfeit goods over the Internet has developed considerably in recent years. The Commission considers this sector as a priority for action where the method of dialogue and cooperation agreements could be applied effectively.

Brand owners and Internet companies alike have therefore committed themselves to developing a collaborative method. This involves a Memorandum of Understanding dealing with prevention, identification and removal of infringing offers and sellers from Internet platforms.

The Commission envisages legislative solutions if voluntary arrangements cannot be implemented.

Context

IPR infringements, particularly counterfeiting and piracy, cause widespread economic harm and even pose a threat to public health and consumer safety. The Commission therefore considers it necessary to protect IPR in order to foster economic growth, innovation and creativity.

Copyright protection of the design for the common face of euro coins

Copyright protection of the design for the common face of euro coins

Outline of the Community (European Union) legislation about Copyright protection of the design for the common face of euro coins

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Economic and monetary affairs > Institutional and economic framework of the euro

Copyright protection of the design for the common face of euro coins

Document or Iniciative

Communication from the Commission on copyright protection of the common face design of the euro coins [COM(2001) 600 final – Official Journal C 318 of 13.11.2001].

Summary

The designs for the common face of euro coins are protected by copyright held by the European Community. The European Commission assigns the rights to Member States who adopt the euro and requires them to ensure that the copyright is respected in their territory.

The reproduction of all or part of the design of the common face of euro coins is allowed in very specific cases, such as reproduction in the form of photographs or films. Reproduction on medals or tokens, on the other hand, is prohibited, on the grounds that this might lead to these objects being mistaken for coins. For any other type of reproduction authorisation must be obtained from either the European Commission (in the case of Member States outside the euro area), or the designated authority in the Member State (for countries within the euro area).

Member States are asked to inform the Commission of the measures they have taken to enforce copyright in their territory, to ensure effective coordination. In the event of unauthorised reproduction, the Member State must take appropriate steps to stop it and to withdraw the reproduction from circulation. The Commission or the Member States of the euro area may prosecute the person responsible under national law.

Enforcement of intellectual property rights

Enforcement of intellectual property rights

Outline of the Community (European Union) legislation about Enforcement of intellectual property rights

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Intellectual property

Enforcement of intellectual property rights

Document or Iniciative

Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights.

Summary

Up to now, the action taken by the European Community (EC) in the field of intellectual property has focused mainly on the harmonisation of national substantive law and the creation of a unitary right at Community level. For example, certain national intellectual property rights, such as trademarks, designs, patents for biotechnological inventions and certain aspects of copyright and related rights, have been harmonised. The Community has also created some unitary rights at Community level; these rights are immediately valid throughout the EC and include the Community trademark and, more recently, Community designs. Discussions are also under way in the Council of Ministers with regard to creating a Community patent.

While the gradual harmonisation of substantive law on intellectual property rights has promoted the free movement of goods between European Union (EU) countries and made the rules applicable more transparent, the means of enforcing intellectual property rights have not been harmonised at all until now. This directive aims to change that.

Counterfeiting and piracy, and infringements of intellectual property in general, are phenomena that are becoming increasingly widespread and have now taken on an international dimension. As a result, they represent a serious threat to national economies and governments. In the European internal market, these phenomena take particular advantage of the national disparities that may exist in the means by which intellectual property rights are enforced. In other words, counterfeit and pirated products are more likely to be manufactured and sold in countries that are less effective than others in combating counterfeiting and piracy.

Objectives

Whilst the principal objective of this directive is to ensure an equivalent level of protection for intellectual property in EU countries, there are also other objectives, such as:

  • promoting innovation and business competitiveness. If counterfeiting and piracy are not punished effectively, they can lead to a loss of confidence in the internal market. Such a situation would discourage creators and inventors, and endanger innovation and creativity in the Community;
  • safeguarding employment in Europe. In social terms, the damage suffered by businesses as a result of counterfeiting and piracy is reflected ultimately in the number of jobs they offer;
  • preventing tax losses and destabilisation of the markets. The tax losses caused by counterfeiting and piracy are significant. This phenomenon is a genuine threat to the economic equilibrium since it can also lead to a destabilisation of the more fragile markets that it attacks (such as the market in textile products). In the multimedia products industry, counterfeiting and piracy via the Internet are steadily increasing and have already resulted in very considerable losses;
  • ensuring consumer protection. Counterfeiting and piracy are generally accompanied by deliberate cheating of consumers as to the quality they are entitled to expect from a product bearing, for instance, a famous brand name. This is because counterfeit and pirated products are produced without the checks made by the competent authorities and do not comply with minimum quality standards. When they buy counterfeit or pirated products, consumers do not in principle benefit from a guarantee, after-sales service or effective remedy in the event of damage. These activities may also pose a real threat to the health of the consumer (counterfeit medicines) or to his/her safety (counterfeit toys or parts for cars or aircraft);
  • ensuring the maintenance of public order. Counterfeiting and piracy infringe labour legislation (clandestine labour), tax legislation (loss of government revenue), health legislation and legislation on product safety.

Scope

The measures provided for by this directive apply to any infringement of the intellectual property rights as provided for by Community law and/or by the national law of the EU country concerned. This directive does not, on the other hand, affect the provisions on the enforcement of rights or those on exceptions contained in Community legislation concerning copyright and rights related to copyright.

Furthermore, the directive does not affect:

  • Community provisions governing the substantive law on intellectual property;
  • EU countries’ international obligations and notably the Agreement on Trade-Related Aspects of Intellectual Property Rights (the “TRIPS Agreement”);
  • any national provisions in EU countries relating to criminal procedures or penalties in respect of infringement of intellectual property rights.

General obligation

EU countries should set up the measures and procedures needed to ensure the enforcement of intellectual property rights and take appropriate action against those responsible for counterfeiting and piracy. These measures and procedures should be sufficiently dissuasive, but avoid creating barriers to legitimate trade and offer safeguards against their abuse.

Persons entitled to request the application of measures and procedures

A request to apply intellectual property protection measures may be submitted by the holders of intellectual property rights, their representatives and all other persons authorised to use those rights in accordance with the applicable law. Wherever they represent intellectual property right holders, rights management or professional defence bodies may also ask to apply these measures.

Evidence

Under certain conditions, parties may be obliged to produce evidence that is under their control. EU countries should also take the necessary measures to enable the responsible authorities to order, on application by a party, the communication of banking, financial or commercial documents under the control of the opposing party.

Where there is a demonstrable risk of an intellectual property right being infringed, even before the commencement of proceedings on the merits of the case, the competent judicial authorities may order prompt provisional measures to preserve evidence.

Right of information

At the request of the right holder, the judicial authorities may order any person to provide information on the origin of the goods or services that are thought to infringe an intellectual property right and on the networks for their distribution or provision, if that person:

  • was found in possession of the infringing goods for commercial purposes;
  • was found to be using the infringing services for commercial purposes;
  • was found to be providing services used in infringing activities for commercial purposes;
  • was indicated as being involved in the production, manufacture or distribution of the infringing goods or services.

Provisional and precautionary measures

At the request of the applicant, the judicial authorities may serve the alleged infringer with an interlocutory injunction intended to:

  • prevent any impending infringement of an intellectual property right;
  • forbid, on a provisional basis, the continuation of the alleged infringements of an intellectual property right;
  • make such continuation subject to the lodging of guarantees intended to ensure the compensation of the right holder.

In certain cases, the judicial authorities may authorise the precautionary seizure of the fixed and non-fixed assets of the alleged infringer, including the blocking of his/her bank accounts and other assets.

Measures resulting from a decision on the merits of the case

At the request of the applicant, the judicial authorities may order the recall of the goods that have been found to infringe an intellectual property right. The goods concerned as well as the materials and implements used for their creation may also be removed from the channels of commerce. Finally, the judicial authorities may order the destruction of counterfeit or pirated goods.

Where a judicial decision has been taken finding an infringement of an intellectual property right, the judicial authorities may issue against the infringer an injunction aimed at prohibiting the continuation of the infringement. Where appropriate, non-compliance with an injunction may be subject to a recurring penalty payment, with a view to ensuring compliance.

The competent judicial authorities may also order pecuniary compensation to be paid to the injured party instead of applying the removal or destruction measures, if that person acted unintentionally and if execution of these measures would cause him/her disproportionate harm

Damages and legal costs

On application of the injured party, the competent judicial authorities may order an infringer to pay the right holder damages in reparation of the loss incurred.

The court costs, lawyer’s fees and any other expenses incurred by the successful party will normally be borne by the other party.

Sanctions by EU countries

Unlike the Commission’s initial proposal, the directive, as adopted, contains no provisions on criminal sanctions against fraudsters. The directive merely stipulates that EU countries are free to apply other sanctions, which go further than the provisions set out, to prosecute offenders.

Background

In October 1998, the Commission presented a Green Paper on the fight against counterfeiting and piracy in the internal market in order to launch a debate on this subject with the interested parties. This consultation exercise confirmed that the disparities between the national systems of intellectual property rights were having a harmful effect on the proper functioning of the internal market. In November 2000, after this consultation phase, the Commission presented a follow-up Communication to the Green Paper proposing an action plan to improve and intensify the fight against counterfeiting and piracy. Among the initiatives proposed in that action plan was a directive that would harmonise national provisions on the means by which intellectual property rights are enforced.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 2004/48/EC

22.6.2004

29.4.2006

OJ L 195 of 2.6.2004

Related Acts

Statement 2005/295/EC by the Commission concerning Article 2 of Directive 2004/48/EC of the European Parliament and of the Council on the enforcement of intellectual property rights [Official Journal L 94 of 13.4.2005].
This statement by the Commission lists the intellectual property rights that are covered by the scope of the directive on the enforcement of intellectual property rights.
These include:

  • copyright;
  • rights related to copyright;
  • sui generis right of a database maker;
  • rights of the creator of the topographies of a semiconductor product;
  • trademark rights;
  • design rights;
  • patent rights, including rights derived from supplementary protection certificates;
  • geographical indications;
  • utility model rights;
  • plant variety rights;
  • trade names, in so far as these are protected as exclusive property rights in the national law concerned.

Copyright and related rights in the information society

Copyright and related rights in the information society

Outline of the Community (European Union) legislation about Copyright and related rights in the information society

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Intellectual property

Copyright and related rights in the information society

Document or Iniciative

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.

Summary

Unless otherwise provided, the Directive applies without prejudice to existing provisions relating to:

  • the legal protection of computer programs;
  • rental and lending rights and certain rights related to copyright in the field of intellectual property;
  • copyright and related rights applicable to broadcasting of programmes by satellite and cable retransmission;
  • the term of protection of copyright and certain related rights;
  • the legal protection of databases.

The Directive deals with three main areas: reproduction rights, the right of communication and distribution rights.

Reproduction rights

Member States are to 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:

  • for authors, of the original and copies of their works;
  • for performers, of fixations of their performances;
  • for phonogram producers, of their phonograms;
  • for the producers of the first fixation of films, in respect of the original and copies of their films;
  • for broadcasting organisations, of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite.

Right of communication

Member States are to provide authors with the exclusive right to authorise or prohibit any communication to the public of copies of their works, 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.

The same applies as regards the making available to the public of protected works in such a way that members of the public may access them from a place and at a time individually chosen by them:

  • for performers, of fixations of their performances;
  • for phonogram producers, of their phonograms;
  • for the producers of the first fixation of films, in respect of the original and copies of their films;
  • for broadcasting organisations, of fixations of their broadcasts – regardless of the method of transmission.

Distribution rights

The Directive harmonises for authors the exclusive right of distribution to the public of their works or copies thereof. This distribution right is exhausted where the first sale or first other transfer of ownership in the Community of a copy is made by the rightholder or with his consent.

Mandatory exception to the right of reproduction

A mandatory exception to the right of reproduction is introduced in respect of certain temporary acts of reproduction which are integral to a technological process, the purpose of which is to enable the lawful use or transmission in a network between third parties by an intermediary of a work or other subject-matter and which has no separate economic significance.

The Directive also makes provision for other non-mandatory exceptions to the rights of reproduction or communication. In these cases, they are accorded at national level by the Member State concerned.

Rights of reproduction and communication

The exceptions and limitations relating to the rights of reproduction and communication are optional and particularly concern the “public” domain. For three of these exceptions – reprography, private use and broadcasts made by social institutions – the rightholders are to receive fair compensation.

The exceptions or limitations to distribution rights are granted depending on the exceptions relating to reproduction or communication.

Legal protection

The Member States are obliged to provide legal protection against the circumvention of any effective technological measures covering works or any other subject matter. This legal protection also relates to “preparatory acts” such as the manufacture, import, distribution, sale or provision of services for works with limited uses. Nevertheless, for some exceptions and limitations, in the absence of voluntary measures taken by rightholders, Member States are to ensure the implementation of an exception or limitation for those who may benefit from it. The Member States may also take such measures with regard to the exception for private use, unless reproduction for private use has already been made possible by rightholders.

Protection of rights-management information

Member States are to provide for legal protection against any person knowingly performing without authority any of the following acts:

  • the removal or alteration of any electronic rights-management information;
  • the distribution, broadcasting, communication or making available to the public of works or other protected subject matter from which electronic rights-management information has been removed.

Penalties and redress

Member States are required to provide for appropriate penalties and remedies in respect of infringement of the Directive.

Background

The objective is to transpose at Community level the main international obligations under the two treaties on copyright and related rights, adopted in December 1996 within the framework of the World Intellectual Property Organisation (WIPO).

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Directive 2001/29/EC

22.6.2001

22.12.2002

OJ L 167 of 22.6.2001

Related Acts

Directives


Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (Text with EEA relevance) [OL L 95 of 15.4.2010].


Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights [Official Journal L 157 of 30.4.2004].
This Directive aims to ensure the enforcement of intellectual property rights. A new level of harmonisation of penalties and preventive measures as regards copyright is provided for under Directive 2001/29/EC.

Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the reuse of public sector information [Official Journal L 345 of 31.12.2003].
Directive 2003/98/EC is not affected by Directive 2001/29/EC. It sets out a framework for the conditions of reuse for public documents. Its aim is therefore to ensure equal treatment for commercial editors within the internal market. However, public sector organisations authorising this type of reuse continue to hold copyright and related rights. They are, however, invited to exercise their copyrights in a way that facilitates re-use.

Decision


Decision No 1639/2006/EC of the European Parliament and of the Council of 24 October 2006 establishing a Competitiveness and Innovation Framework Programme (2007-2013) [Official Journal L 310 of 9.11.2006].
This framework programme encourages, in particular, the use of information technology, which has become possible since the answer to questions on digital-content intellectual property rights provided by Directive 2001/29/EC.

Recommendations

Commission Recommendation of 24 August 2006 on the digitisation and online accessibility of cultural material and digital preservation [Official Journal L 236 of 31.8.2006].
The Commission recommends that Member States promote digitisation and online accessibility of cultural material and digital preservation of the same. However, the digitisation, accessibility and preservation of cultural material in Europe should be in accordance with the terms of Directive 2001/29/EC.

Commission Recommendation of 18 May 2005 on collective cross-border management of copyright and related rights for legitimate online music services [Official Journal L 276 of 21.10.2005].

This Recommendation therefore proposes measures to improve the EU-wide issuing of copyright licences for online services. These improvements are necessary because new Internet services (webcasting, on-demand music downloads, etc.) require a licence that covers their activities throughout the EU.

Green Paper on Copyright in the Knowledge Economy

Green Paper on Copyright in the Knowledge Economy

Outline of the Community (European Union) legislation about Green Paper on Copyright in the Knowledge Economy

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Intellectual property

Green Paper on Copyright in the Knowledge Economy

This Green Paper aims at organising a debate concerning online access to all types of works whilst preserving copyright.

Document or Iniciative

European Commission Green Paper of 16 July 2008 on Copyright in the Knowledge Economy [COM(2008) 466 final – Not published in the Official Journal].

Summary

Copyright is at the heart of debates concerning the online dissemination of knowledge for research, science or education.

This Green Paper deals firstly with the exceptions and limitations to exclusive rights permitted in
Directive 2001/29/EC and Directive 96/9/EC, and secondly with the particular issues related to the exceptions and limitationswhich are most relevant for the dissemination of knowledge and whether these exceptions should evolve in the era of digital dissemination.

Purpose

The Green Paper focuses on how research, scientific and educational materials are disseminated to the public, and also on all types of material having a value in enhancing knowledge with a view to strengthening the free movement of knowledge and innovation – the “Fifth Freedom” – in the internal market.

The public addressed by the Green Paper comprises scientists, researchers, students, disabled people or the general public, more specifically any person who wishes to acquire knowledge by using the Internet.

The European Commission considers that wider dissemination of knowledge contributes to more inclusive and cohesive societies, in line with the renewed Social Agenda.

General issues

Directive 2001/29/EC has harmonised the right of reproduction, the right of communication to the public, the right of making available to the public and the distribution right. Whereas, with regard to exceptions, although the Directive has established a full list of exceptions to copyright protection, the list includes one obligatory exception and twenty optional exceptions thus leaving a large amount of freedom to Member States.

The Community being a party to the World Trade Organisation Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), this text is applicable to the limitations on copyright.

Exceptions

Given the existence of directives and legislation dealing with copyright, this Green Paper aims to define the exceptions which have the most impact on the dissemination of knowledge.

Exceptions for libraries and archives

This Green Paper questions the scope of the exception for libraries and archives, the strengthening of access to works, the scanning of works and orphan works with a view to a possible amendment of the Directive on Copyright in the Information Society.

Exceptions for the benefit of people with a disability

People with a disability should be able to access works. This exception is not expressly provided for in Directive 96/9/EC on the legal protection of databases.

In this perspective, the Green Paper reflects on the efficiency of a licensing scheme by publishers in order to improve access to works, on the obligation of making works available in a particular form and the question of remuneration to recover the costs of formatting.

Dissemination for teaching and research purposes

The Green Paper asks questions about licensing schemes in order to improve access to works for teaching and research purposes, the modern forms of distance learning and the use of works at home for study.

User-created content

The user may also become the creator of content within the framework of new technologies. An exception could be envisaged for creators of content.

Context

Copyright in the knowledge economy represents a significant challenge, in that its environment is constantly changing. The priority is to protect authors’ copyright, whilst also facilitating access to their works for all. The Green Paper highlights the difficulty of reconciling these two objectives.

REFERENCES AND PROCEDURE

Proposal Official Journal Procedure

COM(2008) 466

Copyright in the Knowledge Economy

Copyright in the Knowledge Economy

Outline of the Community (European Union) legislation about Copyright in the Knowledge Economy

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Intellectual property

Copyright in the Knowledge Economy

Document or Iniciative

Communication from the Commission of 19 October 2009 – Copyright in the Knowledge Economy [COM(2009) 532 final – Not published in the Official Journal].

Summary

After having analysed the responses generated by the Green Paper on Copyright in the Knowledge Economy, in this Communication the European Commission announces a series of actions to be implemented in the area of intellectual property rights.

What are the positions of the different stakeholders concerned?

The Commission collected 372 responses from the consultation launched by the Green Paper. The analysis of the responses shows radically opposed positions among the following key stakeholders:

  • archives, libraries and universities favour a wider-ranging copyright system, as well as a system of “public interest” exceptions to facilitate access to works;
  • publishers, collecting societies and other right-holders favour the status quo as regards copyright, and prefer contracts which can be adapted to each case and which take account of new technologies.

What is the Commission’s strategy in terms of copyright?

Libraries and archives

Digital copies and electronic dissemination of digitised works represent the two main challenges for libraries and archives. Currently, the digitisation of a library collection is subject to prior approval from right-holders, and the dissemination of works online can only be performed on library premises.

The Commission therefore intends to continue working at European level towards clarifying the legal implications of mass-scale digitisation and providing solutions to the issue of transaction costs for right clearance.

Orphan Works

Orphan works are works that are in copyright but whose right-holders cannot be identified or located. They cannot be exploited because it is impossible to obtain prior permission from the right-holders. Consequently, these works cannot be included in digitisation projects such as the Europeana library. Although the Commission published a Recommendation on the online digitisation of cultural material in 2006, and the Memorandum of Understanding on Orphan Works in 2008, there is no binding legal framework in this field at present.

The Commission plans to launch an impact assessment to explore a variety of approaches to facilitate the digitisation and dissemination of orphan works. Several options are being considered, including a legally binding stand-alone instrument on the clearance and mutual recognition of orphan works (this would be an exception to the provisions of Directive 2001/29/EC), or guidance on cross-border mutual recognition of orphan works.

Teaching and research

Enabled by new information and communication technologies, teaching and research is already widely internationalised. It is therefore important that copyright on books and publications does not hinder the development of these sectors. To this end, different processes in scientific publishing and publishing for literary and artistic aims are being envisaged. Furthermore, the Commission proposes to facilitate the acquisition and use of material for scientific research. Currently, the system is based on licence agreements concluded with publishers. The Commission wishes to consolidate best practice in this field in order to achieve a less fragmented system of usage rights to journals.

Persons with disabilities

The United Nations Convention on the rights of Persons with Disabilities src=”../../../../wel/images/doc_icons/f_pdf_16.gif” Title=”PDF” border=”0″ class=”alIco/”> stipulates that these persons have a fundamental right to enjoy equal access to information products, publications and cultural material in an accessible format. However, persons with disabilities have very limited access to these works for the moment (5 % of books published in Europe are converted into accessible formats). Moreover, the cross-border transfer of this type of material is hampered by the territorial limitation of copyright exceptions under national legislation.

The Commission’s main goal is to encourage publishers to make more works accessible to disabled persons. In this regard, the organisation of a forum bringing together the stakeholders concerned will foster solutions to give persons with disabilities better access to works while ensuring that right-holders are adequately remunerated for the use of their work.

User-created content (UCC)

With the development of Internet applications, users can now produce and share text, videos and pictures or create content, sometimes using copyright-protected material.

However, this phenomenon of content creation by Internet users is still quite recent. For this reason, the Commission intends to analyse the needs of this type of user further with regard to protecting their rights.

Orphan works

Orphan works

Outline of the Community (European Union) legislation about Orphan works

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Intellectual property

Orphan works

Proposal

Proposal for a Directive of the European Parliament and of the Council of 24 May 2011 on certain permitted uses of orphan works [COM(2011) 289 final – Not published in the Official Journal].

Summary

This Proposal establishes a legal framework concerning orphan works * taking the form of:

  • books, journals, newspapers, magazines or other writings;
  • cinematographic or audiovisual works contained in the collections of film heritage institutions;
  • cinematographic, audio or audiovisual works belonging to the archives of public service broadcasting organisations.

It applies to all works which are protected by the Member States’ legislation in the field of copyright.

This Proposal defines the conditions governing the use of orphan works by:

  • publicly accessible libraries;
  • publicly accessible educational establishments;
  • publicly accessible museums;
  • archives;
  • film heritage institutions;
  • public service broadcasting organisations.

What are the parameters for identifying an orphan work?

The organisations referred to above are required to carry out a diligent search to identify and locate the copyright holder of a work through appropriate sources. These sources are determined by Member States, in consultation with rightholders and users. In particular, they may take the form of:

  • legal deposits;
  • databases of the relevant collecting societies;
  • indexes and catalogues from library holdings and collections;
  • publishers associations in the respective country.

The results of diligent searches must be recorded in a publicly accessible database.

Where the rightholders are not identified or located following a diligent search, a work is considered an orphan work and is recognised as such in all other Member States. The copyright holder nevertheless has the possibility of putting an end to the orphan status at any time.

What types of uses of orphan works are permitted?

Publicly accessible libraries, educational establishments and museums, archives, film heritage institutions and public service broadcasting organisations are obliged to use orphan works for a public interest purpose which includes activities such as:

  • the preservation and restoration of the works contained in their collection;
  • the provision of cultural and educational access to those works.

Organisations are obliged to maintain records of diligent searches carried out and publicly accessible records of their use of orphan works.

However, these organisations may be authorised by Member States to use an orphan work for a purpose other than that of the public interest, provided they remunerate rightholders who put an end to the work’s orphan status.

Context

This Proposal follows the Recommendation on the online digitisation of cultural heritage published in 2006 which invited Member States to equip themselves with legislation on orphan works, an invitation that few of them took up. It is also in line with the objectives of the Digital Agenda for Europe.

Key terms of the Act
  • Orphan work: a work whose rightholder has not been identified or, even if identified, has not been located after a diligent search for the rightholder has been carried out and recorded.

Reference

Proposal Official Journal Procedure

COM(2011) 289

2011/0136/COD


Another Normative about Orphan works

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic

Information society > Data protection copyright and related rights

Orphan works

Proposal

Proposal for a Directive of the European Parliament and of the Council of 24 May 2011 on certain permitted uses of orphan works [COM(2011) 289 final – Not published in the Official Journal].

Summary

This Proposal establishes a legal framework concerning orphan works
* taking the form of:

  • books, journals, newspapers, magazines or other writings;
  • cinematographic or audiovisual works contained in the collections of film heritage institutions;
  • cinematographic, audio or audiovisual works belonging to the archives of public service broadcasting organisations.

It applies to all works which are protected by the Member States’ legislation in the field of copyright.

This Proposal defines the conditions governing the use of orphan works by:

  • publicly accessible libraries;
  • publicly accessible educational establishments;
  • publicly accessible museums;
  • archives;
  • film heritage institutions;
  • public service broadcasting organisations.

What are the parameters for identifying an orphan work?

The organisations referred to above are required to carry out a diligent search to identify and locate the copyright holder of a work through appropriate sources. These sources are determined by Member States, in consultation with rightholders and users. In particular, they may take the form of:

  • legal deposits;
  • databases of the relevant collecting societies;
  • indexes and catalogues from library holdings and collections;
  • publishers associations in the respective country.

The results of diligent searches must be recorded in a publicly accessible database.

Where the rightholders are not identified or located following a diligent search, a work is considered an orphan work and is recognised as such in all other Member States. The copyright holder nevertheless has the possibility of putting an end to the orphan status at any time.

What types of uses of orphan works are permitted?

Publicly accessible libraries, educational establishments and museums, archives, film heritage institutions and public service broadcasting organisations are obliged to use orphan works for a public interest purpose which includes activities such as:

  • the preservation and restoration of the works contained in their collection;
  • the provision of cultural and educational access to those works.

Organisations are obliged to maintain records of diligent searches carried out and publicly accessible records of their use of orphan works.

However, these organisations may be authorised by Member States to use an orphan work for a purpose other than that of the public interest, provided they remunerate rightholders who put an end to the work’s orphan status.

Context

This Proposal follows the Recommendation on the online digitisation of cultural heritage published in 2006 which invited Member States to equip themselves with legislation on orphan works, an invitation that few of them took up. It is also in line with the objectives of the Digital Agenda for Europe.

Key terms of the Act
  • Orphan work: a work whose rightholder has not been identified or, even if identified, has not been located after a diligent search for the rightholder has been carried out and recorded.

Reference

Proposal Official Journal Procedure

COM(2011) 289

2011/0136/COD