EBLIDA's response to the issues to be raised at the ECOSOC Hearing on 13 May 1998 "Copyright"

1. Is the proposed directive consistent with the WIPO Copyright and Performance and Phonograms Treaties?

EBLIDA: The proposed EU Directive goes further than the WIPO Copyright Treaty.
1. During the WIPO Diplomatic Conference there was no agreement to extent the reproduction right to include all temporary copies (draft EU Directive, Art. 2). This issue was subject of heated debate and it was finally deleted and replaced by an Agreed statement (WIPO Copyright Treaty, Agreed statement concerning Article 1(4)).

2. The WIPO Copyright Treaty, Agreed statement concerning Article 10, explicitly says that Contracting Parties are able to carry forward and appropriately extent into the digital environment limitations and exceptions in their national laws which have been acceptable under the Berne Convention. It furthermore permits Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment. The proposed EU Directive restricts all existing exceptions to only those that are listed in the exhaustive enumeration of exceptions (recital 22). The proposed Directive tries to reduce existing legal uses to the use for only 'illustration for teaching and scientific research'. Member States will therefore not be able to carry forward all exceptions in their national laws which have been acceptable under the Berne Convention.

2. Do you agree that "a competitive disadvantage may occur if international exhaustion of the distribution right were to apply"? Would the imposition of Community exhaustion be of benefit or detriment to the consumer?

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3. Does the proposal that certain exceptions to the reproduction right be left to member states to legislate on constitute a barrier to international trade?

EBLIDA: The draft Directive proposes to leave all but one (Article 5.1.) exceptions only as pure options to the member states. Therefore all exceptions would not only be entirely unharmonised but also without any guarantee that they will be implemented to preserve a fair balance in copyright.

The proposal will constitute a barrier to international trade because copies made legally in one country may be illegal in another. Also the huge international document delivery is hampered by the fact that documents can be delivered into some countries but not others. Therefore royalties, at many different levels, are charged for some actions but not others. This discriminates against organisations functioning in a tightly defined regime and inhibits European-wide access to information.

If restrictive copyright protection limits the use of information by making the obtaining of permission to use material both too difficult from a bureaucratic point of view, and too expensive from the point of view of cost, this will affect the potential for the emergence of a well-functioning and competitive market for new information products in Europe. If new works are to be created, the protection of existing works must go hand in hand with making them reasonably accessible.

4. Should the exceptions be made optional to individual member states or should they be harmonised?

EBLIDA: Exceptions should be harmonised (see also answer to question 3). In addition, they should be made much wider and as a requirement of introducing the Directive, not optional. Leaving everything to the member states means that there will be a completely differing copyright landscape all over Europe.

5. Do the proposed obligations concerning technical measures create the right balance between rights holders and users of copyright material?

EBLIDA: This will depend on the way in which such mechanisms are introduced and managed. There is no guarantee that the Directive will maintain the balance - quite the contrary. There is concern among the library, information and archival institutions community about the impact of electronic copyright management systems on the viability of the exceptions under copyright and related rights. What is needed is legislation which requires any management system to recognise and deal with the exceptions existing in law. The circumvention of technical measures should be allowed for activities authorised by the copyright owners or permitted by law, as should the production and marketing of devices designed to circumvent technical measures to facilitate the making of non-infringing copies. Furthermore the privacy of citizens should be safeguarded. As electronic information transfer is an international activity, knowing no boundaries, harmonisation is essential in this field.

6. Do you welcome the proposed harmonisation of sanctions and remedies and would you support the strengthening of this provision?

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7. The rapporteur considers the above to be the main issues for discussion but would welcome other comments.

EBLIDA: If there is no provision made in the new Directive that would ensure that contract law cannot override copyright law (such a provision is already included in the EU Database Directive), what would be the meaning of all these optional exceptions, if they can easily be ignored in license agreements?

EBLIDA, 8 May 1998

Created: 16 June 1998
Updated: 16 June 1998